REVISED JUNE 18, 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30306
CHEVRON USA INC,
Plaintiff-Counter Defendant-Appellee,
versus
SCHOOL BOARD VERMILION PARISH,
Defendant-Counter Claimant-Appellant
TEXACO INC; TEXACO EXPLORATION & PRODUCTION INC.,
Plaintiffs-Counter Defendants-Appellees,
versus
SCHOOL BOARD VERMILION PARISH,
Defendant-Counter Claimant-Appellant
AMERADA HESS CORP,
Plaintiff-Counter Defendant-Appellee,
versus
SCHOOL BOARD VERMILION PARISH,
Defendant-Counter Claimant-Appellant
1
UNION OIL CO OF CALIFORNIA,
Plaintiff-Counter Defendant-Appellee,
versus
SCHOOL BOARD VERMILION PARISH,
Defendant-Counter Claimant-Appellant
MOBIL OIL CORP; MOBIL OIL EXPLORATION &
PRODUCING SOUTHEAST INC.,
Plaintiffs-Counter Defendants-Appellees,
versus
SCHOOL BOARD VERMILION PARISH,
Defendant-Counter Claimant-Appellant
EXXON MOBIL CORP,
Plaintiff-Counter Defendant-Appellee,
versus
MARSHALL W GUIDRY,
Defendant-Counter Claimant-Appellant
EXXON MOBIL CORP,
Plaintiff-counter Defendant-Appellee,
2
versus
SCHOOL BOARD VERMILION PARISH,
Defendant-Counter Claimant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
June 17, 2002
Before GARWOOD, DeMOSS and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Chevron USA, Inc., Texaco, Inc., Amerada Hess Corporation,
Union Oil Company of California, Mobil Oil Corporation, and Exxon
Mobil Corporation (collectively the Oil Companies) filed individual
suits for declaratory judgment against defendant-appellant
Vermillion Parish School Board (the School Board). Exxon Mobil
Corporation also filed a declaratory judgment suit against
defendant-appellant Marshall W. Guidry (Guidry). (The School Board
and Guidry are hereinafter referred to collectively as the Royalty
Owners or the appellants.) These suits were filed in the United
States District Court for the Western District of Louisiana
pursuant to that court’s diversity jurisdiction and were
consolidated below. The Royalty Owners appeal the district court’s
grant of partial summary judgment in favor of the Oil Companies.
Because we find that there is no appealable order properly before
us, we dismiss the appeal.
3
Facts and Proceedings Below
The Royalty Owners are lessors who have royalty interests
pursuant to mineral leases with the Oil Companies. In January
1999, the Royalty Owners sent individual letters to the Oil
Companies alleging underpayment of royalties on natural gas liquids
production and demanding accounting and payment to Royalty Owners
and “all similarly situated royalty owners – all royalty and
overriding royalty owners to whom you pay gas royalties in
Louisiana.” In July 2000, the Royalty Owners sent similar demand
letters alleging underpayment of dry gas royalties.
In February 2000, pursuant to 28 U.S.C. § 2201, the Oil
Companies filed their suits seeking declaratory judgment that,
inter alia, the natural gas liquids demand letters were not
effective under section 137 of the Louisiana Mineral Code to give
the required written notice on behalf of the unnamed “similarly
situated royalty owners.” The Oil Companies’ complaints were later
amended to include the dry gas demand letters. The Oil Companies
named only the School Board and Guidry individually as defendants.
The Oil Companies did not purport to sue a putative class of “all
similarly situated royalty owners” or any other putative class.
The School Board and Guidry each filed an answer on behalf of
itself or himself and also a counterclaim “individually and as
representative of a class of all others similarly situated” against
each of the Oil Companies complaining of underpayment of royalties
4
on natural gas liquids and dry natural gas production. The cases
were all consolidated. The record reflects that a motion by the
School Board for leave to extend the time to file a motion for
class certification was made and granted. So far as the record
reflects, no motion for class certification was ever filed and the
district court never ruled upon any such motion and never expressly
purported to grant or deny class certification.1
By order dated and entered January 29, 2001, the district
court issued a memorandum ruling and entered partial summary
judgment in favor of the Oil Companies. Before the court were
cross-motions for partial summary judgment. The district court
identified the two issues before it as
“(1) whether the demand letters submitted by the Royalty
Owners pursuant to the Louisiana Mineral Code constitute
the required written notice for a class of complainants,
the ‘putative class’ and (2) whether the contents of the
demand letters were adequate or sufficient to put the Oil
Companies on notice of the claims of the Royalty Owners
individually, as well as the putative class.” Chevron
USA, Inc. v. Vermillion Parish School Bd., 128 F. Supp.
2d 961, 964 (W.D. La. 2001).
However, the court only analyzed and only ruled upon the first
issue. The district court held that the demand letters were
“legally insufficient to serve as written notice on behalf of
unnamed royalty owners under article 137 of the Louisiana Mineral
1
Nor does the record reflect any notice, or order directing notice,
to class members or any designation of the School Board or Guidry or
anyone else as a class representative.
5
Code.” Id. at 968.2 The court’s judgment granted the motions for
partial summary judgment filed by the Oil Companies and denied the
cross-motions filed by the Royalty Owners. In the same order, the
district court certified its ruling as a final judgment pursuant to
Rule 54(b) of the Federal Rules of Civil Procedure. The Royalty
Owners on February 22, 2001 filed their notice of appeal from the
January 29, 2001 order and judgment. All the parties expressly
agree that the district court’s ruling did not address or resolve
the question whether the demand letters were sufficient to give the
Oil Companies notice, under section 137 of the Louisiana Mineral
Code, of the claims of the Royalty Owners as individuals.
Discussion
The parties assert that we have jurisdiction over this
appeal pursuant to 28 U.S.C. § 1291. This court is obliged to
examine the basis of its own jurisdiction, sua sponte if
necessary. Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.
1985). We do not have jurisdiction to hear this appeal because
there is no appealable order properly before us.
2
Article 137 of the Louisiana Mineral Code, La.R.S. 31:137, enacted
in 1974 effective January 1, 1975, provides as follows:
Ҥ 137. Nonpayment of royalties; notice prerequisite to
judicial demand
If a mineral lessor seeks relief for the failure of his
lessee to make timely or proper payment of royalties, he must
give his lessee written notice of such failure as a
prerequisite to a judicial demand for damages or dissolution
of the lease.”
6
The only parties before us are the School Board and Guidry
as appellants and the Oil Companies as appellees. Counsel for
the appellants do not claim to be in this court as court
appointed representatives of any class of similarly situated
royalty owners; nor do they claim or purport to be appealing a
denial of class certification. The appellants press their
argument that the demand letters provided sufficient notice on
behalf of the putative class and urge that the district court
erred in holding that they were insufficient to provide such
notice under the Louisiana Mineral Code. The School Board and
Guidry individually lack standing to present this argument. The
district court, in the order that it certified pursuant to Rule
54(b), made no ruling that was binding on the appellants
individually. The court did not rule that the demand letters
were insufficient as to the appellants’ claims; it merely ruled
that the letters were insufficient as to claims on behalf of a
putative class (of royalty owners not named in the letters) that
did not include appellants. No putative class was ever certified
and none is before us. The district court’s ruling had no effect
on the rights of the appellants who are before this court to
pursue their individual claims. Nor does the district court’s
order affect the rights of appellees vis-a-vis any member of any
putative class, because no member of any putative class was
before the district court (and none is before this Court) since
7
no class action was certified, and hence no member of any
putative class is bound by the judgment.
Arguably, the district court’s order was a de facto denial
of class certification (although the parties have not treated it
as such, and no motion for class certification was ever filed).
But reading the order in that light would not ultimately change
our finding of no jurisdiction, even assuming that appellants, as
putative class representatives, would have standing to appeal a
denial of class certification. A decision denying class
certification is interlocutory in nature. Calderon v. Presidio
Valley Farmers Ass’n, 863 F.2d 384, 389 (5th Cir. 1989). 28
U.S.C. § 1292(b) governs the appealability of interlocutory
decisions and parties may not resort to 28 U.S.C. § 1291 and Rule
54(b) to make such a decision appealable. See DeMelo v. Woolsey
Marine Industries, Inc., 677 F.2d 1030, 1032 (5th Cir. 1982).
“Section 1292(b) and Rule 54(b) are mutually exclusive.” Id.
(quoting 10 Wright & Miller, Federal Practice and Procedure:
Civil §§ 2656, at 43 (1973)).
Federal Rule of Civil Procedure 23(f) also provides for
appeal of a denial of class certification.3 Section 1292(b)
provides that, for an interlocutory decision to be appealable,
3
Rule 23(f) states in relevant part: “A court of appeals may in its
discretion permit an appeal from an order of the district court granting
or denying class action certification under this rule if application is
made to it within ten days after the entry of the order.” (emphasis
added).
8
the district court shall “state in writing” that “such order
involves a controlling question of law . . . and that an
immediate appeal from the order may materially advance the
ultimate termination of the litigation.” Both Section 1292(b)
and Rule 23(f) require that the party seeking appeal of the order
make application to the court of appeals within ten days of the
entry of the order and that the court of appeals may, in its
discretion, grant permission for such appeal. Even if the
district court’s purported Rule 54(b) certification satisfies
Section 1292(b)’s written statement requirement, neither
appellant made application to this court within ten days of the
district court’s January 29, 2001 order to appeal any denial of
class certification. Nor have we purported to permit any such
appeal. Cf. Garonzik v. Shearson Hayden Stone Inc., 574 F.2d
1220 (5th Cir. 1978) (per curiam) (“[W]e often refuse to accept
an appeal of the denial of class certification, even when, as in
this case, the district court certified the issue as controlling
under Rule 54(b).”). A denial of class certification is not
properly before us.
Conclusion
This court is without jurisdiction because there is no
appealable order properly before us. Accordingly, we express no
judgment on the substantive merits and DISMISS this appeal.
DISMISSED
9
ENDRECORD
10
DENNIS, Circuit Judge, concurring:
Although I agree with the majority’s conclusion that there
is no appealable order before us, I write separately to point out
that the district court apparently lacked jurisdiction for its
ruling and that its order therefore may not be binding the
putative class. The district court’s ruling purports to affect
only the uncertified, unrepresented putative class. Because that
class was not before the district court and the appellants had no
standing to represent their interests, the motion for summary
judgment presented no case or controversy on which the district
court have could ruled.
There are at least three elements necessary to establish
constitutional standing.4 First, the plaintiff must have suffered
an “injury in fact.”5 Second, there must be a causal connection
between the injury and the alleged wrongful conduct. The injury
must be fairly traceable to the defendant’s conduct and not the
result of an independent action by some third party not before
the court.6 Finally, it must be “likely,” as opposed to merely
“speculative,” that the injury will be “redressed by a favorable
decision.”7
4
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992);
Henderson v. Stalder, 287 F.3d 374, 384 (5th Cir. 2002).
5
Lujan, 504 U.S. at 560.
6
Id.
7
Id. at 561.
11
Even assuming that the Oil Companies have suffered an injury
in fact, the district court lacked jurisdiction under both the
second and third standing elements. The district court’s partial
summary judgment ruling states only that the putative class has
not given adequate notice of their claims under state law; it
does not purport to affect the adequacy of the appellants’ notice
or any other substantive claims that the appellants might have.
Thus, the only persons who could be prejudiced by the district
court’s ruling are nonparties, namely, the absent and
unrepresented putative class members. To bind the class to such
a judgment would contravene “the general rule that a person
cannot be bound by a judgment in litigation to which he is not
made a party or in which he is not served with process.”8 Because
the district court could not bind the putative class, it could
not redress the alleged injury and therefore had no case or
controversy before it.
Although some of the claims in the various complaints
involve justiciable controversies among the actual parties, we
must separately evaluate standing for each claim that is before
us.9 Thus, while the Oil Companies might have standing in the
8
Tennessee ex. rel. Sizemore v. Surety Bank, 200 F.3d 373, 381
(5th Cir. 2000) (citing Zenith Radio Corp. v. Hazeltine Research Inc.,
395 U.S. 100, 110 (1969) (“[A] person cannot be bound by a judgment in
litigation to which he is not made a party or in which he is not served
with process.”)).
9
See Penderson v. La. State Univ., 213 F.3d 858, 874 (5th Cir.
2000) (holding that justiciability must be analyzed separately on the
12
district court to challenge the adequacy of the appellants’
notices, there was no standing for the Oil Companies to assert
claims against the putative class. The fact that the appellants
have counterclaimed with a class action is inapposite. This is
not a case in which the district court ruled on the merits of
claims affecting the entire class (including the appellants)
before reaching the issue of class certification.10 Rather, the
district court’s ruling is directed exclusively at whether notice
was given by the uncertified, putative class. Because there is
no case or controversy between the Oil Companies and the named
appellants over this issue, the district court had no authority
to reach this issue before ruling on certification.11
Nevertheless, despite this apparent flaw in the district
court’s order, I agree with the majority’s conclusion that we
issues of money damages and the propriety of equitable relief); see also
Scott v. Maggio, 695 F.2d 916, 920-22 (5th Cir. 1983) (determining that
the habeas petitioner had no standing to challenge the warrantless entry
of police at someone else’s home, but reviewing other justiciable
controversies in the case).
10
See, e.g., Floyd v. Bowen, 833 F.2d 529, 534 (5th Cir. 1988)
(holding that the district court did not err in dismissing the named
plaintiffs’ claims on summary judgment before reaching the issue of
class certification); see also 7B Charles Alan Wright et al., Federal
Practice and Procedure § 1785, at 128 (2d ed. 1986) (stating that, in
certain circumstances, a district court may rule on the merits of a
class claim before reaching the issue of class certification).
11
See O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“[I]f none of
the named plaintiffs purporting to represent a class establishes the
requisite of a case or controversy with the defendants, none may seek
relief on behalf of himself or any other member of the class.”);
Penderson, 213 F.3d at 872 n.14.
13
lack the authority to vacate the ruling because there is no
appealable order before us.12
12
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94
(1998) (“On every writ of error or appeal, the first and fundamental
question is that of jurisdiction, first, of this court, and then of the
court from which the record comes.”); Accoustic Sys., Inc. v. Wenger
Corp., 207 F.3d 287, 290 n.2 (5th Cir. 2000) (holding that this court
lacked preliminary authority to review the district court’s jurisdiction
because there was no immediately appealable order before the court).
14