Huckeby v. Frozen Food Exp., 75-3633

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation555 F.2d 542
Docket NumberNo. 75-3633,75-3633
Parties15 Fair Empl.Prac.Cas. 1555, 14 Empl. Prac. Dec. P 7695 Carolyn HUCKEBY, Plaintiff, v. FROZEN FOOD EXPRESS, Defendant-Appellee, v. Alice BOBO, Intervenor-Appellant.
Decision Date11 July 1977

Carol M. Barger, Dallas Legal Services Foundation, Inc., Dallas, Tex., for intervenor-appellant.

Allen P. Schoolfield, Jr., John M. Weissert, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before TUTTLE, GOLDBERG and CLARK, Circuit Judges.

CLARK, Circuit Judge:

Alice Bobo, a would-be intervenor in this employment discrimination suit brought by Carolyn Huckeby against Frozen Food Express, Inc., appeals from the district court's dismissal of her complaint. She asks us to decide whether she can resurrect her own time-barred Title VII claim by intervening in someone else's ongoing Title VII action against the company she wishes to sue. Since we find that we lack jurisdiction to review the decision of the court below, we dismiss her appeal.

I. Factual and Procedural Background

The lawsuit in which Bobo wishes to participate commenced on July 2, 1974, when Huckeby, a secretary employed by Frozen Food Express, filed a complaint alleging that her employer had violated provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (1974). Specifically, Huckeby claimed that Frozen Food Express had refused to promote her on the basis of her sex and had denied her financial benefits and other emoluments of employment which it granted to its male employees. There is no indication that Huckeby intended her suit to be anything other than an individual action, and it has never been certified as a class action. 1

In September of 1973, Bobo filed a written charge with the Equal Employment Opportunity Commission (EEOC) alleging that Frozen Food Express had refused to hire her as a truck driver on the basis of her sex. On May 10, 1974, the EEOC mailed to Bobo's attorney, a member of the Dallas Legal Services Foundation, Inc., a document notifying Bobo of her right to bring a civil action against Frozen Food Express within 90 days. Because the Foundation does not handle cases likely to generate an award of attorneys fees, Bobo's attorney referred the matter to a private attorney for further action. By the time he interviewed Bobo and examined her file, the 90-day limitations period established by statute 2 had expired. This extinguished Bobo's right to bring a civil action against Frozen Food Express on her own. 3

Bobo petitioned for leave to intervene in Huckeby's suit on September 18, 1974, more than 120 days after she had received the EEOC's notice advising her of her right to sue. The district court granted her motion on an ex parte basis the following day. Bobo immediately filed a complaint alleging that Frozen Food Express had denied her employment on the basis of her sex. On October 11, 1974, Frozen Food Express moved for the dismissal of Bobo's complaint. In a brief filed in support of its motion to dismiss, Frozen Food Express argued (a) that the district court should dismiss Bobo's complaint for lack of jurisdiction, and (b) that the district court should reconsider its order permitting Bobo to intervene because she could not satisfy the requirements for either permissive intervention or intervention as of right under Rule 24 of the Federal Rules of Civil Procedure. The district court granted the motion to dismiss on July 24, 1975, but did not vacate its earlier order allowing Bobo to intervene and failed to enter a judgment against her. Although the order does not reveal the basis for the district court's decision, 4 an examination of the record convinces us that Bobo's complaint was dismissed for want of jurisdiction.

II. Appellate Jurisdiction

The United States Courts of Appeals are courts of limited statutory jurisdiction. 28 U.S.C.A. § 1291 (1966) grants this court the authority to entertain "appeals from all final decisions of the district courts of the United States." Rule 54(b) of the Federal Rules of Civil Procedure provides that in actions involving multiple claims for relief or multiple parties an order that finally disposes of one or more but fewer than all of the claims for relief asserted, or completely determines the rights and liabilities of one or more but fewer than all of the parties, does not terminate the action in the district court and is subject to revision at any time prior to entry of a final decision unless the district court has (1) expressly determined that there is no just reason for delay, and (2) expressly directed entry of a judgment. 5 In the absence of a certification 6 by the district court that meets these two requirements, a partial disposition of a multi-claim or multi-party action does not qualify as a final decision under Section 1291 and is ordinarily an unappealable interlocutory order. C. Wright, Federal Courts § 101, p. 506 (3d ed. 1976); 6 J. Moore & J. Wicker, Moore's Federal Practice P 54.28(2), pp. 369 & 373 (2d ed. 1976); see e.g., Hardin v. M/V Ben Candies, 549 F.2d 395 (5th Cir. 1977); Bailey v. McCann, 539 F.2d 501 (5th Cir. 1976), appeal after remand, 550 F.2d 1016 (5th Cir. 1977) (case remanded for certification); B. B. Adams General Contractors, Inc. v. Department of Housing and Urban Development, 501 F.2d 176 (5th Cir. 1974); General Motors Corp. v. Dade Bonded Warehouse, Inc., 498 F.2d 327 (5th Cir. 1974).

It is undisputed that the district court never certified its order dismissing Bobo's complaint for immediate appeal under Rule 54(b). Indeed, it does not appear that Bobo ever requested that it do so. The remaining questions we must answer, then, are whether this is the type of action which Rule 54(b) covers, and whether one of the exceptions to the certification requirement is applicable.

In Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 70 S.Ct. 322, 94 L.Ed. 299 (1950), which was decided under the original version of Rule 54, 7 the Supreme Court held that an order fully adjudicating an intervenor's claim was final even though the claims asserted by the other parties to the action were still pending. But under the amended rule this is no longer the law. 6 J. Moore & J. Wicker, Moore's Federal Practice P 54.15(2), pp. 195-96 & P 54.38, p. 643 (2d ed. 1976). The modern version of the rule applies to actions involving multiple parties as well as to those involving multiple claims. When the district court granted Bobo's petition for leave to intervene, Huckeby's suit against Frozen Food Express became a multiparty action. Abdallah v. Hartford Fire Insurance Co., 536 F.2d 20 (3d Cir. 1976). Therefore, this is the type of case that Rule 54(b) covers.

It does not necessarily follow from the fact that the district court's dismissal of Bobo's complaint is not appealable as a final decision that it is not an appealable order. Where there is no certification, Rule 54(b) merely deprives of finality most orders that would have been final under Section 1291 had they not been entered in a suit involving multiple claims or multiple parties. A Rule 54(b) certification is not a prerequisite to judicial review if (1) the appealability of the order is not dependent on finality because it is made appealable by statute or has been certified for appeal pursuant to 28 U.S.C.A. § 1292(b) (1966), (2) the Cohen 8 rule, the Wood 9 rule, or the Forgay 10 rule impart Section 1291 finality to the order, or (3) the Jetco 11 rule excuses the failure to comply with Rule 54(b). Bobo, however, cannot invoke any of these exceptions to the coverage of Rule 54(b). To begin with, the order she complains of is not within the class of interlocutory orders made appealable by Section 1292(a), 12 or by any other statute authorizing immediate appellate review. 13 Since the district court has not issued a Section 1292(b) certification, that provision does not give us jurisdiction over her appeal. Nor does the Jetco rule apply.

Jetco Electric Industries, Inc. v. Gardiner, 473 F.2d 1228 (5th Cir. 1973), was a suit brought by two plaintiffs against Engineers Testing Laboratories, Inc. (ETL), Gardiner, and Gardiner Electronics Company. On March 10, 1972, the district court dismissed the plaintiffs' claims against ETL. The order was not a final judgment since it did not determine the plaintiffs' rights against Gardiner or his company and no Rule 54(b) certification had been made. Several months later the district court entered an agreed judgment disposing of the plaintiffs' suit against Gardiner and the Gardiner Electronics Company that also was not a final judgment because it did not determine the plaintiffs' rights against ETL and no Rule 54(b) certification had been issued. The plaintiffs appealed from each order at the time it was entered. We held that since the two orders, when considered together, "terminated this litigation just as effectively as would have been the case had the district judge gone through the motions of entering a single order formally reciting the substance of the earlier two orders," the first was appealable under the practical approach to finality mandated by Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199, 202-203 (1964) and Cohen v. Beneficial Industrial Loan Corp., 337 U.S. at 546, 69 S.Ct. at 1226, 93 L.Ed. at 1536. 473 F.2d at 1231. Because Huckeby's claim against Frozen Food Express still has not been finally adjudicated, the Jetco rule does not give us jurisdiction over the order dismissing Bobo's complaint.

Reliance on the three doctrines that impart Section 1291 finality to what are otherwise unappealable interlocutory orders would be similarly unavailing. Cohen's "collateral order doctrine" makes final, and hence appealable under Section 1291

that small class (of orders that do not fully resolve the dispute between the parties but) which finally...

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