IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 95-31099
Summary Calendar
____________________
GRESHLYN JONES; WESLEY JONES,
Plaintiffs-Appellants,
versus
PRIMERICA LIFE INSURANCE,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Middle District of Louisiana
(94-CV-2250-B)
________________________________________________________________
August 28, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Upon consideration sua sponte of our jurisdiction to hear this
appeal, we dismiss this appeal for lack of jurisdiction under 28
U.S.C. § 1291.
I
On September 26, 1995, the district court granted Primerica
Life Insurance Company's motion for summary judgment on the federal
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
claims of Greshlyn and Wesley Jones, denied Primerica's motion for
summary judgment on the Joneses' state law claims, and remanded
those claims to state court. On October 16, Primerica filed a Rule
59(e) motion to alter or amend the judgment. On October 26, before
the district court had ruled on the outstanding Rule 59(e) motion,
the Joneses filed a notice of appeal from the district court's
September 26 order granting summary judgment to Primerica on their
federal claims. On November 14, the district court granted
Primerica's Rule 59(e) motion and vacated its order remanding the
state law claims to state court. The district court held a
preliminary conference on December 12, and set September 16, 1996,
as the trial date for the state law claims.
On December 13, we dismissed the Joneses' appeal for want of
prosecution because the Joneses failed to order a transcript within
the time fixed by the rules. On January 9, 1996, we granted the
Joneses' motion to reinstate the appeal. On February 2, 1996,
Primerica filed a motion to dismiss the appeal. We denied
Primerica's motion on March 21.
II
We have jurisdiction of appeals from all final decisions of
the district court. 28 U.S.C. § 1291 (1994). Rule 4(a)(4) of the
Federal Rules of Appellate Procedure declares:
A notice of appeal filed after announcement or entry of
the judgment but before disposition of [a motion to alter
-2-
or amend the judgment under Rule 59] is ineffective to
appeal from the judgment or order, or part thereof,
specified in the notice of appeal, until the entry of the
order disposing of the last such motion outstanding.
Fed.R.App.P. 4(a)(4). Applying this rule to the present case, the
Joneses' appeal from the district court's order dated September 26,
1995, was ineffective because of Primerica's outstanding Rule 59(e)
motion until November 14, when the district court disposed of
Primerica's motion by vacating its remand order. After the
district court disposed of the outstanding Rule 59(e) motion, the
order dated October 2, 1995, was no longer a final judgment under
§ 1291 because outstanding state law claims were, and are, still
before the district court due to the vacatur of the remand order.
III
Because we lack appellate jurisdiction under § 1291, this
appeal is
D I S M I S S E D.1
1
When read together, the September 26 order and the November 14
vacatur of the order remanding the state law claims do not
"reflect[] the district court's unmistakable intent to enter a
partial final judgment under Rule 54(b)." Kelly v. Lee's Old
Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en
banc). We therefore "refuse to consider the order appealable."
Id.
-3-