Blowe v. Bank of America, NA , 316 F. App'x 283 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1947
DOROTHY TAYLOR BLOWE,
Plaintiff - Appellant,
v.
BANK OF AMERICA, NA; ELILOU NAVARRO; VERONICA GONZALES,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:07-cv-00595-RAJ-JEB)
Submitted: February 11, 2009 Decided: March 13, 2009
Before NIEMEYER, TRAXLER, and DUNCAN, Circuit Judges.
Dismissed and remanded by unpublished per curiam opinion.
Dorothy Taylor Blowe, Appellant Pro Se. Ruth L. Goodboe,
MCGUIREWOODS, LLP, Norfolk, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dorothy Taylor Blowe seeks to appeal the district
court’s order granting the motion to dismiss filed by Bank of
America, Elilou Navarro, and Veronica Velasquez * (collectively,
“Defendants”). In her amended complaint, Blowe claimed that
Defendants’ actions constituted violations of: (1) Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to
2000e-17 (2000) (“Title VII”); (2) the Age Discrimination in
Employment Act, 29 U.S.C. §§ 621-634 (2000) (“ADEA”); (3) the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000)
(“ADA”); and (4) the Equal Pay Act, 29 U.S.C. § 206(d) (2000)
(“EPA”). Defendants subsequently filed a motion to dismiss,
asserting that Blowe had failed to put forth any facts in
support of her claims under Title VII or the EPA. Defendants
also moved to dismiss all claims against the two individual
defendants, Navarro and Velasquez, on the ground that they did
not qualify as “employers” as defined under Title VII, the ADA,
the ADEA, or the EPA.
While the district court granted Defendants’ motion to
dismiss, we conclude that its order did not constitute a final
judgment as to all claims against all defendants. Notably, in
*
Veronica Velasquez was erroneously identified as “Veronica
Gonzales” in Blowe’s complaint.
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their motion to dismiss, Defendants did not contend that the ADA
or the ADEA claims against Bank of America should be dismissed.
In its opinion and order granting Defendants’ motion to dismiss,
the district court likewise made no ruling on Blowe’s claims
against Bank of America under the ADA or the ADEA.
Nevertheless, following the district court’s order granting
Defendants’ motion to dismiss, the Clerk entered judgment and
removed the case from the active docket, deeming it to be
closed.
On appeal, Defendants concede that their motion to
dismiss did not address Blowe’s claims against Bank of America
under the ADA or the ADEA. In spite of this fact, Defendants
contend that because the district court entered judgment and
removed the matter from its active docket, Fed. R. Civ. P. 54(b)
provides this court with jurisdiction to consider the claims
raised in Blowe’s appeal. However, this assertion is meritless.
While an order that dismisses less than all parties and claims
is generally not considered to be final, Rule 54(b) provides
that an order is immediately appealable if the district court:
“(1) expressly directs entry of judgment as to those claims or
parties; and (2) expressly determines that there is no just
reason for delay.” Baird v. Palmer, 114 F.3d 39, 42 (4th Cir.
1997). In the present case, while the district court granted
the motion to dismiss as to specific claims and parties, the
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court made no express determination that there was no just
reason to delay entry of judgment as to the issues and parties
that were the subject of its ruling. Accordingly, because the
district court did not certify its order under Rule 54(b), it
provides no basis for jurisdiction over this appeal.
In light of the fact that the order granting
Defendants’ motion to dismiss does not constitute a final
decision of the district court, it does not qualify for review
under 28 U.S.C. § 1291 (2006), nor does it fall within any of
the interlocutory categories enumerated under 28 U.S.C.
§ 1292(a) (2006). See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546 (1949). Furthermore, the district court has
not certified its order for immediate review pursuant to 28
U.S.C. § 1292(b) (2006). Finally, the order is not appealable
under the collateral order exception to the final judgment rule.
See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978);
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376
(1981).
Accordingly, because the order Blowe seeks to appeal
is neither a final order nor an appealable interlocutory or
collateral order, we dismiss the appeal for lack of jurisdiction
and remand the case to the district court with instructions to
vacate the Clerk’s entry of judgment, reopen the case, and
commence further proceedings. We dispense with oral argument
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because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
DISMISSED AND REMANDED
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