IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-20262
_____________________
BRIARGROVE SHOPPING CENTER JOINT
VENTURE,
Plaintiff - Counter Defendant - Appellee,
versus
PILGRIM ENTERPRISES, INC., ET AL.,
Defendants,
PILGRIM ENTERPRISES, INC.; PILGRIM
LAUNDRY COMPANY, INC.; PILGRIM
EQUIPMENT CO., INC.,
Defendants - Counter Claimants - Appellants.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
_________________________________________________________________
April 7, 1999
Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Pilgrim Enterprises, Inc.1 appeals from a judgment that
assessed response costs and damages against Pilgrim in a claim
asserted by Briargrove Shopping Center Joint Venture (“Briargrove”)
under the Comprehensive Environmental Response Compensation and
Liability Act (“CERCLA”), 42 U.S.C.A. §§ 9601-9675 (West 1995 &
1
Technically, three parties are before us on appeal: Pilgrim
Enterprises, Inc., Pilgrim Laundry Co., Inc., and Pilgrim Equipment
Co., Inc. We refer to these parties collectively as “Pilgrim.”
Supp. 1998). Although the district court labeled its judgment
“Final,” there remained various other claims and cross-claims that
had not been decided. Furthermore, there was no certification of
this CERCLA judgment for appeal under Rule 54(b) of the Federal
Rules of Civil Procedure. Because this judgment appealed from is
neither final, nor certified, we conclude that we lack appellate
jurisdiction and therefore dismiss the appeal.
I
Briargrove owned a shopping center and leased property in that
shopping center to Pilgrim. Pilgrim operated a dry cleaning
business on the land for a number of years before its lease
terminated in 1979. Fifteen years later, in 1994, Briargrove
sought a loan backed by a mortgage on the shopping center. To
secure the loan Briargrove needed an environmental assessment of
its property. Briargrove hired an independent laboratory for this
purpose, and its investigation revealed that the property was
contaminated with perchloroethylene (commonly referred to as
“perc”). Briargrove sued Pilgrim under CERCLA, alleging that
Pilgrim is the party responsible for releasing perc onto the land.
Briargrove also alleged a variety of state law claims including
negligence, negligence per se, nuisance and trespass. Pilgrim
filed several counterclaims based on state common and statutory
law.
II
2
After hearing arguments and reviewing evidence, the district
court issued a “Declaratory Judgment” on January 22, 1998. This
declaratory judgment addressed only the CERCLA claims and declared
that Pilgrim was liable “for response costs and damages associated
with any ‘clean-up’ and remediation costs associated with the
Briargrove Shopping Center property.” The same day the court
issued the declaratory judgment, it also entered a “Final
Judgment,” captioned as such, which read in full:
Pursuant to the findings entered in this case and 42
U.S.C. § 96(3)(g)(2), (section 113 of CERCLA) the Court
DECLARES that Pilgrim is liable for response costs and
damages associated with any “clean-up” and remediation
costs associated with the Briargrove Shopping Center
property.
This is a Final Judgment.
Pilgrim subsequently filed a motion to amend the judgment,
requesting that the district court alter its findings of fact and
analysis of law; the district court denied the motion. Briargrove
then filed a motion requesting the court to aid the enforcement of
its judgment by issuing a “turnover order” according to Texas’
practice and procedure. See Fed. R. Civ. P. 69(a). In response,
Pilgrim asked the district court to approve a supersedeas bond.
The court approved the bond and further ordered that “all execution
upon [the court’s] Declaratory Judgment and Final Judgment . . .
are stayed pending appeal in front of the Fifth Circuit Court of
Appeals.” This order did not state whether the court contemplated
3
an immediate appeal or an appeal following the disposition of the
various other claims and counterclaims.
III
Our court is one of limited jurisdiction. We have authority
to hear appeals only from “final decisions” under 28 U.S.C. § 1291,
interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments
certified as final under to Fed. R. Civ. P. 54(b),2 or some other
nonfinal order or judgment to which an exception applies (none
apply here).3 We have said that “[a] decision is final when it
‘ends the litigation on the merits and leaves nothing for the court
to do but execute the judgment.’” Askanase v. Livingwell, Inc.,
981 F.2d 807, 810 (5th Cir. 1993) (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978)). Clearly, the district court in
this case has not rendered a “final decision” nor entered a final
judgment as that phrase is understood for § 1291 purposes.
Therefore, we must consider whether the district court has
certified its judgment for appeal under Rule 54(b) so that we have
authority to hear an appeal from a decision that “adjudicates fewer
2
See Witherspoon v. White, 111 F.3d 399, 402 (5th Cir. 1997)
(recognizing that “a decision failing to adjudicate the rights and
liabilities of all parties, while not technically final, can be
certified as final pursuant to Federal Rule of Civil Procedure
54(b)”).
3
See generally 15A Charles A. Wright, et al., Federal Practice
and Procedure §§ 3911-3913 (2d ed. 1991).
4
than all the claims.” Fed. R. Civ. P. 54(b). Rule 54(b) states,
in relevant part, the following:
When more than one claim for relief is presented in an
action . . . the court may direct the entry of a final
judgment as to one or more but fewer than all of the
claims . . . only upon an express determination that
there is no just reason for delay and upon an express
direction for the entry of judgment. In the absence of
such determination and direction, any order or other form
of decision, however designated, which adjudicates fewer
than all the claims . . . shall not terminate the action
as to any of the claims . . . , and the order or other
form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims
. . . .
As both the rule’s text and the Supreme Court have made clear,
a district court deciding whether to certify a judgment under Rule
54(b) must make two determinations. See Curtiss-Wright Corp. v.
General Electric Co., 446 U.S. 1, 7-8 (1980). First, the district
court must determine that “it is dealing with a ‘final judgment.’”
Id. at 7. The judgment is final if “it is ‘an ultimate disposition
of an individual claim entered in the course of a multiple claims
action.’” Id. at 7 (quoting Sears, Roebuck & Co. v. Mackey, 351
U.S. 427, 436 (1956)). The second determination the district court
must make is whether any just reason for delay exists. Curtiss-
Wright Corp., 446 U.S. at 8. According to the text of Rule 54,
this determination must be made expressly.
Our court has, however, placed a gloss on the language of Rule
54(b). Although the rule requires “an express determination that
there is no just reason for delay,” we have said that a district
5
court’s judgment meets the requirements of the rule if it satisfies
the following standard:
If the language in the order appealed from, either
independently or together with related portions of the
record referred to in the order, reflects the district
court’s unmistakable intent to enter a partial final
judgment under Rule 54(b), nothing else is required to
make the order appealable. We do not require the judge
to mechanically recite the words “no just reason for
delay.”
Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220
(5th Cir. 1990) (en banc). The intent must be unmistakable; the
intent must appear from the order or from documents referenced in
the order; we can look nowhere else to find such intent, nor can we
speculate on the thought process of the district judge. In the
instant case, the only other portions of the record referred to by
the order appealed from (the “Final Judgment” entered on
January 22, 1998) are the “findings entered in this case.” Those
findings are contained in the “Declaratory Judgment.” Thus, under
Kelly, we are required to look for the district court’s intent only
in the Final Judgment and the Declaratory Judgment.
Neither of those documents, either separately or taken
together, exhibits an “unmistakable intent to enter a partial final
judgment under Rule 54(b).” Kelly, 908 F.2d at 1220. Unlike the
facts in Kelly, the district court nowhere mentions Rule 54(b).4
4
In Kelly, the district court captioned the order appealed
from with the title “F.R.C.P. 54(b) JUDGMENT” and directed “that
there be final judgment entered pursuant to Federal Rule of Civil
6
And in further contrast with the Kelly facts, neither of the
parties in the instant case submitted a motion mentioning Rule
54(b) to the district court. Id. (noting that one of the parties
submitted a motion for the court to amend its order “pursuant to
Rule 54(b)”).
Furthermore, the district court in this case did not issue any
orders or memoranda discussing the substantive concerns surrounding
a Rule 54(b) certification.5 Proper consideration of these
concerns requires the district court to act as a “dispatcher,”
Curtiss-Wright Corp., 446 U.S. at 8, and to “weigh a variety of
factors to determine whether [its] disposition is appropriate for
Procedure 54(b) . . . .” Kelly, 908 F.2d at 1221.
5
For example, one Rule 54(b) concern in this case would be
“whether the nature of the claims already determined was such that
no appellate court would have to decide the same issues more than
once even if there were subsequent appeals.” Curtiss-Wright Corp.,
446 U.S. at 8. In this case, it is not clear whether this concern
would weigh in favor of certifying the appeal under Rule 54(b).
The concern might cut against certification because one of the
parties may end up seeking review of the district court’s
resolution of some questions of fact related to the state law
claims and counterclaims. Those facts may (or may not) bear upon
the CERCLA issues presented to us in this appeal. For example,
Pilgrim contends that release of the perc may have occurred through
the sewer system maintained by Briargrove. Pilgrim further
contends that this fact should play a role in allocating damages
and that the district court mistakenly cast some of those damages
as CERCLA costs to be born by Pilgrim. We obviously make no
judgment as to the validity of these arguments, but it does appear
that fact issues underlying the unresolved state claims may
interrelate with the CERCLA claims. In any event, this is a call
for the district court to make in its role as “dispatcher.” Until
it makes a proper Rule 54(b) determination, we cannot have
jurisdiction over the CERCLA claims presented to us.
7
Rule 54(b) certification.” Ackerman v. Federal Deposit Ins. Corp.,
973 F.2d 1221, 1224 (5th Cir. 1992). Before the district court can
justify certifying its judgment for appeal under Rule 54(b), it
must find that at least some of those factors combine to outweigh
the important concerns that underlie “the historic federal policy
against piecemeal appeals.” Curtiss-Wright Corp., 446 U.S. at 8
(quoting Sears, Roebuck & Co., 351 U.S. at 438). In this case, the
record reveals no consideration of such factors.
The fact that the district court labeled its order as a “Final
Judgment” does not suffice to make that order appealable under Rule
54(b). The label does not indicate any intent by the district
court that the order should be immediately appealable. Cf.
Curtiss-Wright Corp., 446 U.S. at 8 (“Not all final judgments on
individual claims should be immediately appealable, even if they
are in some sense separable from the remaining unresolved
claims.”). This understanding comports with the text of Rule
54(b), which states that any order, “however designated,” does not
terminate the action as to any claims when the court has not made
a determination that there is no just reason for delay of the
appeal. More importantly, our court recently has held that the
mere act of labeling an order as a “Final Judgment” is insufficient
evidence that the district court intended to certify the order
under Rule 54(b). Witherspoon v. White, 111 F.3d 399, 403 (5th
Cir. 1997); see also Askanase, 981 F.2d at 810 (concluding that the
8
court lacked jurisdiction even though the district court indicated
that the order was “appealable”). Although we do not require the
mechanical recitation of Rule 54(b), Kelly, 908 F.2d at 1220, what
we do require is a showing of an “unmistakable intent” to enter the
judgment under Rule 54(b).
Finally, Pilgrim urges us to consider the district court’s
order approving the supersedeas bond as evidence that the district
court intended for its judgment to be immediately appealable. We
cannot do so, however, because this order was not referenced in the
order appealed from. See Kelly, 908 F.2d at 1220 (“If the language
in the order appealed from, either independently or together with
related portions of the record referred to in the order, reflects
the district court’s unmistakable intent to enter a partial final
judgment under Rule 54(b), nothing else is required to make the
order appealable.”) (emphasis added). Furthermore, even if we were
to consider the order approving the supersedeas bond, that order
nevertheless fails to reflect an “unmistakable intent to enter a
partial final judgment under Rule 54(b).” Kelly, 908 F.2d at
1220.6
6
Pilgrim also argues that Briargrove’s seeking enforcement of
the district court’s “Final Judgment” demonstrates that Briargrove
thought the order was appealable. This argument has no weight,
however, because jurisdiction does not turn on the intentions of
either party. The only relevant intent in the instant case is that
of the district court as reflected or referenced in its order.
That intent remains unknown to us.
9
In sum, nothing in the record before us indicates any
intention to certify the district court’s judgment as appealable
under Rule 54(b). Kelly describes the most lenient application of
a Rule 54(b) certification as far as this circuit is concerned, and
this case fails by a wide margin to meet that test. We therefore
lack jurisdiction to consider the district court’s partial ruling
on appeal.
IV
For the foregoing reasons, the appeal is
D I S M I S S E D.
10
Briargrove Shopping Center Joint Venture v. Pilgrim Enterprises, Inc.
Court: Court of Appeals for the Fifth Circuit
Date filed: 1999-04-07
Citations: 170 F.3d 536
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