UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30035
GEORGE ELDREDGE; JANIE ELDREDGE LANGUIRAND;
HARTWELL LANGUIRAND,
Plaintiffs-Appellants,
VERSUS
MARTIN MARIETTA CORP.; ET AL.,
Defendants,
LUHR BROTHERS, INC.; MARTIN MARIETTA MATERIALS, INC.,
Defendants-Appellees.
************************************************
No. 99-30220
GEORGE ELDREDGE; JANIE ELDREDGE LANGUIRAND;
HARTWELL LANGUIRAND,
Plaintiffs-Appellants,
VERSUS
MARTIN MARIETTA CORP.; ET AL.,
Defendants,
LUHR BROTHERS, INC.; MARTIN MARIETTA MATERIALS, INC.;
DRAVO BASIC MATERIALS CO., INC.,
Defendants-Appellees.
Appeal from the United States District Court
1
For the Western District of Louisiana
March 22, 2000
Before JOLLY and DeMOSS, Circuit Judges, and DOWD,* District Judge.
DeMOSS, Circuit Judge:
George Eldredge, Janie Eldredge Languirand, and Hartwell
Languirand (collectively “Appellants”) appeal the district court’s
orders granting partial summary judgment to Martin Marietta
Materials, Inc. (“Martin Marietta”), and Luhr Brothers, Inc.
(“Luhr”), and granting summary judgment to Dravo Basic Materials,
Inc. (“Dravo”). We affirm the grant of summary judgment to Dravo,
but find that the partial summary judgment order as to Martin
Marietta and Luhr was not a final judgment pursuant to Rule 54(b)
of the Federal Rules of Civil Procedure and, therefore, we dismiss
Appellants’ appeal of that judgment for lack of appellate
jurisdiction.
I.
Appellants jointly own property located on the Vermilion River
in Louisiana. They claim that various towboat companies sued
herein have trespassed on their land and damaged the trees and soil
on their property through repetitive use of the trees located on
the property for tying off barges in custody of towboats operated
by these companies. According to the deposition testimony of
George Eldredge, he knew that barges were being tied off to the
*
District Judge of the Northern District of Ohio, sitting by
designation.
2
land and that his father once complained to the local sheriff in
the mid-1960s about this practice. The sheriff, however, took no
action, and towboat companies have continued to use the property in
this manner over the past few decades. In 1993, Hartwell
Languirand posted signs warning against trespassing, contacted the
Coast Guard to complain about the towboat companies, and also cut
and removed the ropes and cables that those companies had left on
the property. The Coast Guard allegedly told Hartwell Languirand
that word would be passed around to the various towboat companies
regarding Appellants’ displeasure with the towboat companies’
activities, but barges continued to be tied off to the property.
On April 20, 1998, Appellants filed suit in Louisiana state
court seeking damages and permanent injunctive relief against
Martin Marietta, Luhr, Vulcan Materials (“Vulcan”), and Ingram
Barge Lines, Inc. (“Ingram”).1 Ingram removed the suit to federal
court based on diversity jurisdiction on May 15, 1998. Appellants
later added Dravo as a defendant.
Based on the principle of liberative prescription, Martin
Marietta filed a motion for partial summary judgment, which Luhr
followed. Despite opposition from Appellants, the district court
granted Martin Marietta’s and Luhr’s motions for partial summary
judgment. Subsequent to this ruling, Dravo filed its own motion
for summary judgment and incorporated by reference Martin
Marietta’s arguments. That unopposed motion by Dravo was also
1
Appellants later accepted Vulcan’s and Ingram’s offers of
judgment pursuant to Rule 68 of the Federal Rules of Civil
Procedure.
3
granted. After Appellants filed separate notices of appeal, the
district court entered judgments pursuant to Rule 54(b).
II.
Before proceeding to the merits of Appellants’ appeal, we must
first consider whether the district court’s rulings were suitable
for entry as final judgments under Rule 54(b) and are,
consequently, appropriate for appellate review. Rule 54(b) allows
a district court “[w]hen more than one claim for relief is
presented in an action . . . [to] direct the entry of a final
judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there is no just
reason for delay and upon an express direction for the entry of
judgment.” Fed. R. Civ. P. 54(b). It reflects a balancing of two
policies: avoiding the “danger of hardship or injustice through
delay which would be alleviated by immediate appeal” and
“avoid[ing] piecemeal appeals.” PYCA Indus. v. Harrison County
Waste Water Management Dist., 81 F.3d 1412, 1421 (5th Cir. 1996).
To enter a Rule 54(b) final judgment, the district court must
have disposed of “one or more . . . claims or parties.”2 Fed. R.
Civ. P. 54(b). That requirement is jurisdictional, is reviewed de
novo, and may be raised by this court even though the parties may
2
Furthermore, the district court must make “an express
determination that there is no just reason for delay.” Fed. R.
Civ. P. 54(b). This requirement is not jurisdictional and is
reviewed for an abuse of discretion. See Samaad v. City of Dallas,
940 F.2d 925, 930 (5th Cir. 1991). Where, as here, the parties do
not challenge the propriety of the Rule 54(b) judgment, we do not
consider sua sponte the district court’s determination regarding
delay. See id.
4
not have challenged it. See Samaad v. City of Dallas, 940 F.2d
925, 930 (5th Cir. 1991). Additionally, we must look to see
whether this requirement is met as to each party or claim. See,
e.g., In re Southeast Banking Corp., 69 F.3d 1539, 1548-52 (11th
Cir. 1995) (finding that a Rule 54(b) final judgment was improperly
entered as to certain rulings because they did not dispose of
distinct claims, but that it was properly entered as to certain
defendants who were completely dismissed).
Because the district court dismissed with prejudice all claims
against Dravo, Dravo was no longer a party before that court and
the order granting summary judgment is properly on appeal pursuant
to Rule 54(b). On the other hand, the ruling as to Martin Marietta
and Luhr did not eliminate either as a party because part of
Appellants’ tort claim, i.e., the non-prescribed portion, remains
pending against each of them. Hence, for this Court to have
jurisdiction under Rule 54(b), the district court must have
resolved a distinct “claim for relief” against each of Martin
Marietta and Luhr. The critical issue, then, is whether a statute
of limitations ruling that precludes recovery for a certain past
time period but allows such recovery for another current time
period creates two distinct claims for purposes of Rule 54(b)’s
requirement that the district court dispose of one or more claims.
We have never answered this specific question, and no
definitive formulation has emanated from the Supreme Court. The
Court has recognized that “a complaint asserting only one legal
right, even if seeking multiple remedies for the alleged violation
5
of that right, states a single claim for relief.” Liberty Mut.
Ins. Co. v. Wetzel, 96 S. Ct. 1202, 743 n.4 (1976). And several
years ago, it held that separate claims could arise out of the same
transaction and occurrence. See Cold Metal Process Co. v. United
Eng’g & Foundry Co., 76 S. Ct. 904 (1956). But those judicial
crumbs have failed to lead the circuit courts to a concensus as to
the handling of this confusing area of law.
Instead, various methods to determine what constitutes a
“claim for relief” for purposes of Rule 54(b) have percolated
amongst the circuits. One approach “focuse[s] upon the possibility
of separate recoveries under arguably separate claims.” Samaad,
940 F.2d at 931. If the alleged claims for relief do not permit
more than one possible recovery, then they are not separately
enforceable nor appropriate for Rule 54(b) certification. See
Brandt v. Bassett (In re Southeast Banking Corp.), 69 F.3d 1539,
1547 (11th Cir. 1995) (concluding that allegations seeking damages
against holding company’s directors for failing to consider merger
possibilities over several years stated one claim because relief
could only be recovered once); Local P-171, Amalgamated Meat
Cutters v. Thompson Farms Co., 642 F.2d 1065, 1070 (7th Cir. 1981)
(Wisdom, J.) (“At a minimum, claims cannot be separate unless
separate recovery is possible.”).
Another approach “concentrate[s] on the facts underlying the
putatively separate claims.” Samaad, 940 F.2d at 931. If the
facts underlying those claims are different, then those claims may
be deemed separate for Rule 54(b) purposes. See Jack Walters &
6
Sons v. Morton Bldg., 737 F.2d 698, 702 (7th Cir. 1984)); see also
Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d
1313, 1316 (9th Cir. 1979). “By the same token, if there is a
great deal of factual overlap between the decided and the retained
claims they are not separate, and appeal must be deferred till the
latter are resolved.”3 Jack Walters & Sons, 737 F.2d at 702. A
prime basis for the factual approach is “to spare the court of
appeals from having to keep relearning the facts of a case on
successive appeals.” Id.
Finally, at least one circuit has expressed that claims are
not distinct when they are “‘so closely related that they would
fall afoul of the rule against splitting claims if brought
separately.’” Tolson v. United States, 732 F.2d 998, 1001 (D.C.
Cir. 1984) (quoting Local P-171, 642 F.2d at 1071).
We have yet to resolve which amongst these methods is the
preferable method of discerning what a claim is for purposes of
Rule 54(b), and we decline to do so today. Rather, in this
unsettled area of the law, we simply note the important cases and
competing methods in existence and earmark them as guideposts for
future deliberations. We now turn to the case at hand.
In a case analogous to the present situation, the Seventh
Circuit utilized a factual approach to review the propriety of a
3
Although in Cold Metal Process, the Supreme Court held that
separate claims could arise out of the same transaction and
occurrence, that view does not necessarily conflict with the
factual approach. See, e.g., Minority Police Officers Ass’n v.
City of South Bend, 721 F.2d 197, 200-01 (7th Cir. 1983).
7
district court’s decision to enter a Rule 54(b) final judgment
after issuing a statute of limitations ruling. See Minority Police
Officers Ass’n v. City of South Bend, 721 F.2d 197 (7th Cir. 1983).
Under the facts of that case, the district court had barred
liability for racially discriminatory acts beyond a certain time
period, but it had allowed the plaintiffs to proceed with
allegations based on more recent acts. The Seventh Circuit
conceded that “[i]n a purely verbal sense [the] ruling[] disposed
of [a] separate claim[],” id. at 201, and that “a separate judgment
could in principle be entered on each claim,” id. at 200. However,
the court mentioned two points that militated against finding
separability: (1) the presumption was against characterizing a
pleading as containing multiple claims for relief rather than a
single claim; and (2) the acts from the earlier time period would
be admissible to prove that the later acts were discriminatory,
thus resulting in near-complete “factual overlap” between the
alleged claims. See id. at 200-01. With such an overlap, the
Seventh Circuit reasoned that it would still have to relearn the
same set of facts if and when the timely allegations were appealed
from the district court’s final judgment. As a result, the Seventh
Circuit found that the Rule 54(b) final judgment was improper.
We find the Seventh Circuit’s analysis in Minority Police
Officers instructive and conclude that Rule 54(b) was improperly
applied as to Martin Marietta and Luhr. In the instant case, facts
pertaining to the prescribed portion of Appellants’ claim may
conceivably be admitted in the pending district court trial to
8
buttress Appellants’ allegations that Martin Marietta and Luhr
trespassed and damaged the Vermilion property within the
prescription period. Those facts may include any evidence
identifying the two companies as past trespassers or suggesting
that they had a habit or routine of tying off to Appellants’
property. In addition, any calculation of damages arising from the
non-prescribed portion of Appellants’ claim will invariably require
a consideration of the facts prior to April 20, 1997, to determine
the extent of damages caused within the prescription period.4
Hence, we perceive a strong factual overlap between the
prescribed and non-prescribed portions of Appellants’ claim.
Accordingly, the appeal of the partial summary judgment in favor of
Martin Marietta and Luhr is dismissed for want of jurisdiction.5
III.
Since the appeal of Dravo’s summary judgment is properly
before this Court, we must review that judgment de novo to
determine whether, viewing the evidence in the non-movant’s favor,
4
The intertwined nature of the damages calculation is
reinforced by the fact that Appellants essentially seek one total
recovery for the alleged cumulative damages caused to their
property. That fact also comports with the single recovery test
enunciated in Southeast Banking, further belying the existence of
multiple claims in the present case.
5
In their brief, Appellants also imply that this court may
have jurisdiction pursuant to 28 U.S.C. § 1292(a) & (b). They do
not actually discuss those subsections but merely refer to them in
the Statement of Issues portion of their brief. An appellant,
however, abandons all issues not raised and argued in its initial
brief on appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994); United States v. Ballard, 779 F.2d 287, 295 (5th Cir.
1986) (“Notice pleading does not suffice for appellate briefs.”).
We, therefore, refrain from addressing these points.
9
there is no genuine issue of material fact and whether the movant
is entitled to judgment as a matter of law. See Owsley v. San
Antonio Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999),
petition for cert. filed, 68 U.S.L.W. 3491, (U.S. Jan. 18, 2000)
(No. 99-1205). The district court granted summary judgment for
Dravo based on liberative prescription. Under Louisiana Civil Code
article 3492, “[d]elictual actions are subject to a liberative
prescription of one year.” La. Civ. Code Ann. art. 3492. “When
damage is caused to immovable property, the one year prescription
commences to run from the day the owner of the immovable property
acquired, or should have acquired, knowledge of the damage.” La.
Civ. Code Ann. art. 3493. The defendant has the burden of proving
that a tort claim has prescribed. See Dixon v. Houch, 466 So. 2d
57, 59 (La. Ct. App. 1985). If the defendant proves that one year
has passed between the tortious acts and the filing of the lawsuit,
then the burden shifts to the plaintiff to prove an exception to
prescription. See id. at 60.
Here, Dravo satisfied its burden by offering uncontradicted
evidence that it had not conducted any operations in Louisiana
since 1995; thus, at least one year had passed between any possible
tort by Dravo and the filing of Appellants’ suit. Appellants,
though, contend that two exceptions apply. First, they argue for
the application of the doctrine of contra non valentem. Second,
they maintain that Dravo’s acts were a continuing tort.
10
Under the doctrine of contra non valentem, the prescription
period does not run when “the cause of action is not known or
reasonably knowable by plaintiff, even though his ignorance was not
induced by defendant.” Landreneau v. Fruge, 598 So.2d 658, 662
(La. Ct. App. 1992) (citing Corsey v. State Dep’t of Corrections,
375 So. 2d 1319, 1321-22 (La. 1979)). As a judicial exception to
the statutory rule of prescription, Louisiana courts strictly
construe this doctrine and only extend its benefits up to “the time
that the plaintiff has actual or constructive knowledge of the
tortious act.” Bergeron v. Pan American Assurance Co., 731 So. 2d
1037, 1042 (La. Ct. App. 1999). That is defined as “‘the time at
which the plaintiff has information sufficient to excite attention
and prompt further inquiry.’” Id. (quoting National Council on
Compensation Ins. v. Quixx Temporary Servs., Inc., 665 So. 2d 120,
124 (La. Ct. App. 1995)).
Based on the summary judgment evidence, we find that
Appellants may not receive the benefits of contra non valentem.
According to deposition testimony, Eldredge knew that his father,
the predecessor-in-title to Appellants, had noticed damage to the
trees caused by the barges starting in the mid-1960s, and that his
father had complained to the sheriff. The sheriff, though, took no
action, and likewise, the father took no further legal steps to
stop the towboat companies from trespassing and damaging the
Vermilion property. In 1993, Hartwell Languirand also observed
damage to the trees and complained to the Coast Guard. He
requested information about the towboat companies causing the
11
damage, but the Coast Guard was unable to provide him with the
businesses’ names because he failed to provide enough information
about the boats. Although he knew of the damage, Hartwell
Languirand did not file suit until 1998. Appellants clearly had
knowledge of the tort, at least since 1993, and chose not to
exercise their duty to seek out those responsible for their injury
in a timely manner. See Tilley v. Kennedy, 605 So. 2d 226, 228
(La. Ct. App. 1992) (finding that claims of property damage from
defective mud were barred because the plaintiffs were told before
the prescription period that the mud was causing property damage).
As for the second exception, Appellants assert that the
continuing tort doctrine should apply in the present case. Under
this doctrine, when tortious conduct and resulting damages are of
a continuing nature, prescription does not begin to run until the
conduct causing the damages is abated. See Doe v. Doe, 671 So. 2d
466, 469 (La. Ct. App. 1995). “Typically, courts have found torts
to be continuous in nature where each individual act would not
necessarily give rise to a cause of action; but instead, the
cumulative effect of regularly-occurring or continuous actions
results in successive damages from day to day.” Hunter v. Tensas
Nursing Home, 743 So. 2d 839, 842 (La. Ct. App. 1999). Again, this
doctrine does not apply in Dravo’s case. Appellants have not
disputed Dravo’s contention that it did not engage in activity near
the property within one year of when the suit was filed.
Therefore, Dravo cannot have committed a continuing tort that
extends into the prescription period, and Appellants’ action has
12
prescribed.
IV.
For the reasons assigned, we affirm the district court’s award
of summary judgment to Dravo on the grounds of liberative
prescription and dismiss the appeal of the partial summary judgment
in favor of Martin Marietta and Luhr for want of jurisdiction.
13