UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-11124
(Summary Calendar)
_________________
SHON WILLIAMS,
Plaintiff - Appellee,
versus
SMITH PROTECTIVE SERVICES,
Defendant - Appellant.
Appeal from the United States District Court
For the Northern District of Texas
(3:97-CV-388-T)
March 24, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Smith Protective Services (“Smith”) brings an interlocutory
appeal from the district court’s order denying its motions to
dismiss for lack of jurisdiction (“motion to dismiss”) and, in the
alternative, to compel arbitration (“motion to compel”). We affirm
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.
the district court’s denial of the motion to compel, and because we
lack jurisdiction, dismiss Smith’s appeal of its motion to dismiss.
Smith claims that the district court erred in denying its
motion to compel because Williams signed an arbitration agreement
as part of his employment contract with Smith. The court denied
this motion because Smith failed to submit the employment contract
along with its motion. Smith submitted only one page (the alleged
arbitration agreement) from the alleged 29-page employment
contract, and the single page that Smith submitted lacked a date,
a signature of its representative, or proper authentication, as
required by the Federal Rules of Evidence. Even if these
evidentiary defects could be overlooked, the court held that the
arbitration agreement would be unenforceable because Smith’s
“promise of ‘continued employment’ is an illusory promise incapable
of serving as consideration for a binding employment contract in an
at-will state such as Texas.” Williams v. Smith Protective Servs.,
No. 3:97-CV-0388-T, at 3 (N.D. Tex. Sept. 23, 1997).
Assuming, arguendo, that Smith’s alleged employment contract
falls within the scope of the Arbitration Act, 9 U.S.C. § 1 et seq.
(1970), so that we have jurisdiction to hear an interlocutory
appeal of its motion, see 9 U.S.C. § 16(a)(1)(C) (1997 Supp.) (“An
[interlocutory] appeal may be taken from))(1) an order . . . (C)
denying an application under section 206 of this title to compel
arbitration.”), we agree with the district court that Smith has
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failed to satisfy the evidentiary prerequisites necessary to
prevail on its motion. Moreover, as the district court correctly
noted, we see nothing in the alleged one-page arbitration agreement
that could serve as consideration for William’s promise to
arbitrate. Without consideration, the arbitration agreement is
unenforceable. See Light v. Centel Cellular Co., 883 S.W.2d 642,
645 (Tex. 1994) (holding that a collateral agreement between an
employer and an employee is valid if consideration exists for the
agreement, but that a promise either to provide employment or to
continue working is not sufficient consideration to make the
collateral agreement enforceable); Travel Matters, Inc. v. Star
Tours, 827 S.W.2d 830, 832-33 (Tex. 1991). Of course, Smith is
free to reurge this motion upon the district court if it can submit
an entire signed contract, properly authenticated, assuming that
proper consideration for the alleged arbitration agreement exists
in some other part of the contract. See Light, 883 S.W.2d at 645 n.
5 & 6. Based upon the evidence now before us, however, we affirm
the district court’s denial of the motion to compel.
In its motion to dismiss for lack of jurisdiction, Smith
argues that it is not subject to suit for violation of Title VII
because it operates solely in Texas and does not have a
“substantial effect” on interstate commerce, citing United States
v. Lopez, 514 U.S. 549, 559, 115 S. Ct. 1624, 1629-30, 131 L.Ed.2d
136 (1994). The district court denied the motion because it held
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that Smith had failed to prove that it did not have a “substantial
effect” on interstate commerce. See Wickard v. Filburn, 317 U.S.
111, 63 S. Ct. 82, 87 L.Ed. 122 (1942). Smith renews this argument
on appeal, but, not without irony, we find that we lack
jurisdiction to consider the interlocutory appeal of Smith’s motion
to dismiss for lack of jurisdiction.
A court of appeals ordinarily has jurisdiction only to review
a “final decision.” See 28 U.S.C. § 1291. No appeal lies from
“tentative, informal, or incomplete” decisions and decisions that
are “but steps towards final judgment in which they will merge.”
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct.
1221, 1225, 93 L.Ed. 1528 (1949). The refusal to grant a motion to
dismiss is not a “final decision.” See Ozee v. American Council on
Gift Annuities, Inc., 110 F.3d 1082, 1090 (5th Cir. 1997); Jackson
v. City of Atlanta, Tex., 73 F.3d 60, 63 (5th Cir. 1996) (“Denials
of motions to dismiss . . . in the Title VII context are non-final
pretrial orders.”).
Although no “final decision” is involved, the “collateral
order doctrine” allows this court to hear interlocutory appeals in
that “small class [of interlocutory decisions] which finally
determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too
independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.”
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Cohen, 337 U.S. at 546, 69 S. Ct. at 1225-25. This “collateral
order doctrine” is “extraordinarily limited” in its application.
See Pan Eastern Exploration Co. v. Hufo Oils, 798 F.2d 837, 839
(5th Cir. 1986). Actions to dismiss for lack of jurisdiction
ordinarily do not fall within the scope of the “interlocutory order
doctrine.” See Ozee, 110 F.3d at 1091 n.7 (collecting cases).
Smith asserts that we have jurisdiction over its interlocutory
appeal pursuant to the Arbitration Act, 9 U.S.C. § 1 et seq., and
28 U.S.C. 1292(a)(1), “based upon the district court’s denial of a
motion to stay this action in order for it to be submitted to
arbitration pursuant to an agreement to do so.” Although Smith
apparently believes that it can appeal the denial of the motion to
dismiss because the district court also denied its motion to compel
(which we earlier assumed to be reviewable on interlocutory
appeal), it fails to suggest how the orders are related, which
might allow Smith to “bootstrap” the interlocutory appeal of its
motion to dismiss upon the motion to compel. It does not argue
that the denial of the motion to dismiss under Title VII is itself
a final order, see Jackson, 73 F.3d at 62, or that the denial of
the motion to dismiss comes within the scope of the “collateral
order” doctrine. See Ozee, 110 F.3d at 1091 n.7. Accordingly,
because the burden of establishing jurisdiction rests upon the
party asserting it, see Epps v. Bexar-Medina-Atacosa Counties Water
Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982), and
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Smith has failed to meet its burden, we dismiss its interlocutory
appeal from the district court’s denial of its motion to dismiss.1
For the foregoing reasons, the district court’s denial of
Smith’s motion to compel arbitration is AFFIRMED and its appeal of
the motion to dismiss is DISMISSED.
1
Our holding today does not prevent Smith from arguing on
direct appeal, after a final judgment has been entered, that the
district court lacked jurisdiction to hear this case. “The general
rule is that ‘a party is entitled to a single appeal, to be
deferred until a final judgment has been entered, in which claims
of district court error at any stage of the litigation may be
ventilated.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, )),
116 S. Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992,
1995, 128 L.Ed.2d 842 (1994)).
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Williams v. Smith Protective Svc
Combined Opinion