United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 21, 2006
FOR THE FIFTH CIRCUIT
______________________ Charles R. Fulbruge III
Clerk
No. 05-20088
______________________
HALLIBURTON COMPANY BENEFITS COMMITTEE, in its capacity as plan
administrator of the Halliburton Energy Services, Inc. Welfare
Benefits Plan, including its constituent benefit program, the
Dresser Retiree Life and Medical Program;
Plaintiff - Appellant
HALLIBURTON CO; HALLIBURTON ENERGY SERVICES INC. WELFARE BENEFITS
PLAN
Third Party Defendants - Counter Defendants -
Appellants
v.
JAMES B GRAVES; ET AL
Defendants
JAMES GRAVES; PHIL GRIFFIN; PAUL M BRYANT, individually, and as
representatives of a requested class of all similarly situated
persons
Defendants - Third Party Plaintiffs - Counter
Claimants - Appellees
Appeal from the United States District Court
for the Southern District of Texas, Houston
No. 4:04-CV-280
Before KING, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
*
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that this opinion should not be published and is not precedent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.
Although neither party made anything other than a brief
reference to our jurisdiction to hear this appeal, we must
address it. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737,
740 (1976) (noting that it is incumbent upon a court to examine
sua sponte the basis of its jurisdiction whenever a question
arises as to its existence). We requested and received
supplemental letter briefs from the parties addressing our
jurisdiction, and after carefully reviewing the letter briefs and
the record, we DISMISS this appeal for lack of jurisdiction.
Appellants Halliburton Company Benefits Committee,
Halliburton Company, and Halliburton Energy Services, Inc.
Welfare Benefits Plan (collectively, “Halliburton”) initiated
this declaratory judgment action, seeking a declaration that: (1)
its November 2003 amendments to the Dresser Retiree Medical
Program (“Dresser Plan”) are permissible and do not violate the
terms or provisions of the Halliburton Plan, the Merger Agreement
between Halliburton and Dresser Industries, Inc. (“Merger
Agreement”), or the Employee Retirement Income Security Act of
1974 (“ERISA”), 29 U.S.C. §§ 1001-1461 (2000); and (2) the Merger
Agreement does not limit Halliburton’s right to amend or
terminate the Dresser Plan. R. at 294. Appellees James Graves,
Phil Griffin, and Paul Bryant, individually and as
representatives of a requested class of similarly situated
persons (collectively, the “Retirees”), counterclaimed, seeking:
(1) declaratory and injunctive relief prohibiting modifications
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to the Dresser Plan to the extent such modifications are
inconsistent with the medical benefit plans provided to similarly
situated active Halliburton employees and prohibiting the
implementation of the November 2003 amendments to the Dresser
Plan; (2) declaratory and injunctive relief prohibiting any
modification of the terms and benefits of certain protected
programs1 in a manner contrary to the terms of the Merger
Agreement; (3) actual, consequential, and incidental damages; and
(4) attorneys’ fees and expenses. R. at 146.
The parties filed cross-motions for summary judgment.
Halliburton’s motion for summary judgment sought (1) a
declaration that the Merger Agreement did not limit its right to
amend or terminate the Dresser Plan, (2) a declaration on the
meaning of sections 7.09(g) and 10.07 of the Merger Agreement,
and (3) dismissal of the Retirees’ counterclaims with prejudice.
R. at 932. The Retirees’ motion for partial summary judgment
requested that the court find as a matter of law that the Merger
Agreement requires Halliburton to maintain the Dresser Plan in
accordance with section 7.09 of the Merger Agreement. R. at 879-
80.
On December 20, 2004, the district court granted partial
1
The protected programs include: “pension equalizer”
contributions to the Dresser Retirement Savings Plan; the Dresser
Executive Deferred Compensation Plan; the Dresser Executive Life
Insurance Program; and the Dresser Supplemental Executive
Retirement Plan. R. at 151.
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summary judgment in favor of the Retirees, ordering that
Halliburton must maintain the Dresser Plan for eligible
participants and may adjust benefits in that plan only if it
makes identical changes to benefits for similarly situated active
Halliburton employees. The district court made no mention of the
Retirees’ counterclaims for damages or attorneys’ fees or their
claims relating to other benefits. On December 23, 2004, the
district court entered a separate order entitled “final
judgment,” which stated that “[t]he partial judgment dated
December 20, 2004, is severed and made final.” R. at 1789.
Although the district court stated that its partial summary
judgment was severed and made final, it did not indicate which
claims, if any, it intended to sever.
Ordinarily, a district court’s grant of partial summary
judgment is a non-appealable, interlocutory order. See Liberty
Mut. Ins. Co., 424 U.S. at 744 (stating that grants of partial
summary judgment limited to issues of liability “are by their
terms interlocutory” and “where assessment of damages or awarding
of other relief remains to be resolved have never been considered
to be ‘final’ within the meaning of 28 U.S.C. § 1291”). FED. R.
CIV. P. 21, however, provides that “[a]ny claim against a party
may be severed and proceeded with separately.” As this court has
explained,
[s]everance under Rule 21 creates two separate actions or
suits where previously there was but one. Where a single
claim is severed out of a suit, it proceeds as a
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discrete, independent action, and a court may render a
final, appealable judgment in either one of the resulting
two actions notwithstanding the continued existence of
unresolved claims in the other.
Allied Elevator, Inc. v. E. Tex. State Bank, 965 F.2d 34, 36 (5th
Cir. 1992) (quoting United States v. O’Neil, 709 F.2d 361, 368
(5th Cir. 1983)).
Halliburton argues that the district court severed its
declaratory judgment action pursuant to Rule 21, thus creating a
final judgment appealable under § 1291. According to
Halliburton, our decisions in O’Neil, 709 F.2d 361, and Allied
Elevator, 965 F.2d 34, indicate that no formalities for an order
of severance are required so long as the intent to sever can be
reasonably inferred from the district court’s order.
We cannot accept Halliburton’s theory of appellate
jurisdiction for at least two reasons. First, we do not think
that the district court’s partial summary judgment order disposed
of any particular claim, as required by Rule 21. See FED. R. CIV.
P. 21 (“Any claim against a party may be severed and proceeded
with separately.”) (emphasis added). Although Halliburton
contends that the district court’s order disposed of its
declaratory judgment claim in its entirety, we read the district
court’s order as deciding a threshold legal issue common to the
claims of both parties, without distinguishing among the parties’
specific claims. Nowhere in the district court’s order or
subsequent “final judgment” does the district court purport to
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dispose of or sever Halliburton’s declaratory judgment claim.
See Sidag Aktiengesellschaft v. Smoked Foods Prods. Co., 813 F.2d
81, 84 (5th Cir. 1987) (stating that “[a]n entire claim may be
severed under Rule 21”) (emphasis added).
A close examination of the parties’ pleadings and motions
for summary judgment confirms our conclusion. Halliburton’s
motion for summary judgment did not request a final judgment on
its declaratory judgment claim. Rather, it requested a ruling on
one of its two pleaded grounds for declaratory relief. Compare
R. at 294 (requesting two declarations in its complaint), with
id. at 932, 949 (requesting summary judgment on one of its two
pleaded grounds for declaratory relief). Similarly, the
Retirees’ motion for partial summary judgment did not refer to,
much less request the district court to resolve, Halliburton’s
declaratory judgment claim. Instead, the Retirees requested that
the district court resolve a “threshold contractual question” and
find as a matter of law that the Merger Agreement requires
Halliburton to maintain the Dresser Plan in accordance with
section 7.09 of the Merger Agreement. R. at 899, 879. This is
precisely what the district court purported to do in its partial
summary judgment order and subsequent “final judgment.” See R.
at 1782, 1789.
Second, our case law requires that the district court
clearly state its intention to sever a claim, and we cannot
conclude that the district court intended to do so here. See
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O’Neil, 709 F.2d at 368; Allied Elevator, 965 F.2d at 36. Unlike
the orders at issue in O’Neil and Allied Elevator, the district
court’s order here did not use clear and unequivocal language
indicating an intent to sever a specific claim or effectuate a
Rule 21 severance. Compare R. at 1789 (district court’s final
judgment stating that “[t]he partial judgment dated December 20,
2004, is severed and made final” without indicating any specific
claim to be severed), with O’Neil, 709 F.2d at 366 (concluding
that the district court intended a Rule 21 severance where its
judgment stated that “[t]he defendants’ counterclaim against the
plaintiff is severed from the cause of action alleged by
plaintiff and will be tried separately and at a later date”), and
Allied Elevator, 965 F.2d at 36 (determining that the district
court “clearly intended” to sever the judgment on the
counterclaim where the district court “order[ed] that judgment on
the counterclaim ‘is hereby severed, for which let execution
issue’”). Based on the district court’s order and subsequent
order entitled “final judgment,” we conclude that the district
court did not clearly state its intention to sever any specific
claim under Rule 21. Accordingly, the district court’s final
judgment is not “final” within the meaning of § 1291, and we lack
jurisdiction to decide the merits of this interlocutory order.
Given that the parties desire immediate appellate review of
the legal issue in the district court’s partial summary judgment
order, we suggest that one or both of the parties move the
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district court to amend its order to include the 28 U.S.C.
§ 1292(b) certification language, pursuant to FED. R. APP. P.
5(a)(3). If the district judge enters such an order by July 3,
2006, and if a timely request for permissive appeal is filed with
this court within ten days of such order, as required by
§ 1292(b) and FED. R. APP. P. 5(a), the resulting new appeal will
be assigned a new number and will be referred to this panel. The
existing appellate briefs will serve as the briefs for the new
appeal, obviating the need for rebriefing.2
APPEAL DISMISSED.
2
Under the circumstances, the new appeal is, in our view,
an appeal contemplated by Halliburton’s stand still agreement set
out in the letter of its counsel dated December 22, 2004. R. at
1785.
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