Ryan v. Occidental Petroleum Corp., No. 76-4446

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before TUTTLE, GEE and FAY; GEE
• Citation: 577 F.2d 298
• Parties: John F. RYAN, Plaintiff-Appellant, v. OCCIDENTAL PETROLEUM CORPORATION, Defendant-Appellee.
• Docket Number: No. 76-4446
• Decision Date: 28 July 1978

Page 298

577 F.2d 298 John F. RYAN, Plaintiff-Appellant,
v.
OCCIDENTAL PETROLEUM CORPORATION, Defendant-Appellee. No. 76-4446. United States Court of Appeals,
Fifth Circuit. July 28, 1978.

Page 300

Dan D. Sullivan, Andrews, Tex., John F. Ryan, Laredo, Tex., for plaintiff-appellant.

George P. Kazen, Laredo, Tex., Richard P. Keeton, Houston, Tex., Louis Nizer, Neil A. Pollio, Martin Stein, New York City, for defendant-appellee.

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

Before TUTTLE, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

John F. Ryan, appellant in this diversity action, seeks recovery against Occidental Petroleum for actual and exemplary damages resulting from incidents surrounding Occidental's hiring, employment and discharge of Ryan from a position in an Occidental subsidiary in Venezuela. The district court granted Occidental's motion to dismiss several paragraphs (IV-VIII) of Ryan's complaint for failure to state a cause of action under F.R.Civ.P. 12(b)(6). It also granted Occidental's motion to strike the greater portion of the same paragraphs (along with one other, paragraph X) on the ground that they contained immaterial and scandalous matter in violation of F.R.Civ.P. 12(f).

Ryan contested these rulings, and in order to secure an immediate appeal, he requested that the district court certify under F.R.Civ.P. 54(b) that there was no just reason for delay and enter a final judgment on the stricken paragraphs of his complaint. The district court granted the requested order but apparently had second thoughts: on the defendant's motion the district court vacated the same certification order and substituted an order granting Ryan's motion for a voluntary dismissal of the single substantive allegation that remained in his complaint (paragraph IX). This substitution apparently occurred after the court had heard the parties' arguments on the Rule 54(b) certification request. The voluntary dismissal order did not purport to dismiss the jurisdictional allegations of Ryan's complaint, and it specifically noted that the dismissal was without prejudice to Ryan's right to file again in the same or any other court. Thus, the much-truncated complaint, consisting only of the initial jurisdictional allegations, is technically still before the district court.

Hereafter Ryan filed a notice of appeal with respect to the district court's two original orders dismissing and striking paragraphs IV through VIII and X under Rules 12(b)(6) and 12(f). We dismiss the appeal for want of jurisdiction.

Courts of appeal are courts of limited jurisdiction. 28 U.S.C. § 1291 authorizes this court to hear appeals from "final decisions of the district courts." Although the finality principle is to be given a "practical rather than a technical construction," Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), this principle serves important considerations in our judicial system.

Page 301

As the Supreme Court said in Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-72, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974):

Restricting appellate review to "final decisions" prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy. . . . The inquiry requires some evaluation of the competing considerations underlying all questions of finality "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950).

Thus, courts of appeal may depart from the ordinary requirement of finality only cautiously. Dunlop v. Ledet's Foodliner, 509 F.2d 1387 (5th Cir. 1975). In multi-party or multiple-claim suits, Rule 54(b) prescribes conditions by which the district court may render final and thus appealable a judgment as to "one or more but fewer than all of the claims or parties": the district court must expressly determine that there is no just reason for delay and must expressly direct the entry of judgment on the claim or claims decided.

In the absence of a Rule 54(b) certification and entry of judgment, we may not entertain appeals from partial dispositions or orders unless they fall within certain limited exceptions to the...