Russell v. Watkins Ludlam Winter & Stennis, P.A. , 181 F. App'x 441 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 18, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-60384
))))))))))))))))))))))))))
GLOVER ALCORN RUSSELL, JR.;
GLOVER ALCORN RUSSELL, III,
Plaintiffs-Appellants,
versus
WATKINS LUDLAM WINTER &
STENNIS, P.A.; FOX-EVERETT, INC.;
WENDY EVERSOLE; HEALTH & WELFARE
PLAN FOR EMPLOYEES OF WATKINS
LUDLAM WINTER & STENNIS, P.A.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:04-CV-220
Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiffs-Appellants challenge the district court’s order
dismissing their claims for failure to comply with Rule 8 of the
Federal Rules of Civil Procedure. We DISMISS the appeal for lack
*
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this opinion should not be published and is not precedent except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.
of jurisdiction.
I. BACKGROUND
On April 8, 2003, Plaintiff-Appellant Glover Alcorn Russell,
III (“Trey”) was injured in an automobile accident. After the
accident, Trey’s father, Plaintiff-Appellant Glover Alcorn Russell,
Jr., a former employee of Defendant-Appellee Watkins Ludlam Winter
& Stennis, P.A. (“Watkins Ludlam”), enrolled Trey in the Health &
Welfare Plan for Employees of Watkins Ludlam (“the Plan”). Because
Plaintiffs-Appellants contend that they have not been reimbursed for
medical expenses resulting from Trey’s accident, they filed a
complaint asserting that Defendants-Appellees1 willfully,
deceptively, intentionally, and/or negligently failed to inform them
of the availability and extent of medical insurance coverage under
the Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”), 29 U.S.C. §§ 1161-1168, in contravention of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-
1461, and the Health Insurance Portability and Accountability Act
of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936.2
The complaint is over one hundred pages long and contains over
four hundred paragraphs. There are twenty-seven counts of
1
In addition to Watkins Ludlam Winter & Stennis, P.A.,
Plaintiffs-Appellants named the Plan and the Plan’s
administrators Fox-Everett, Inc. and Wendy Eversole as
Defendants.
2
Additionally, the Plaintiffs-Appellants seek penalties,
removal of Plan fiduciaries, attorney’s fees, and costs.
2
malfeasance and approximately one hundred thirty pages of exhibits.
Defendants-Appellees were granted extensions of time to respond
to the complaint. Next, Defendants-Appellees filed motions to
dismiss the Plaintiffs’ complaint for failure to comply with Rule
8 of the Federal Rules of Civil Procedure.3 Meanwhile, Plaintiffs-
Appellants, on March 14, 2005, filed a Motion for Default Judgment
against Defendants-Appellees. On March 31, 2005, without addressing
Plaintiffs’ Motion for Default Judgment, the district court granted
Defendants’ Motions to Dismiss without prejudice. The court also
stated that “Plaintiffs may re-file their complaint but only in
obedience to the rules for pleading.” However, the court did not
set forth judgment on a separate document in accordance with Rule
3
While the substance of the motions focused on the
Plaintiffs’ violations of Rule 8, Defendants-Appellees filed the
motions generally pursuant to Rules 8, 12, and 41 of the Federal
Rules of Civil Procedure.
Rule 8(a) provides that “[a] pleading which sets forth a
claim for relief...shall contain...a short and plain statement of
the claim showing that the pleader is entitled to relief.”
FED.R.CIV.P. 8.
Rule 12(e) states that “[i]f a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a
party cannot reasonably be required to frame a responsive
pleading, the party may move for a more definite statement before
interposing a responsive pleading. The motion shall point out the
defects complained of and the details desired.” FED.R.CIV.P.
12(e).
Rule 41(b) provides that “[f]or failure of the
plaintiff...to comply with [the Federal Rules of Civil Procedure]
or any order of court, a defendant may move for dismissal of an
action or of any claim against the defendant.” FED.R.CIV.P.
41(b).
3
58.4 Instead of refiling their complaint, Plaintiffs-Appellants
filed this appeal. Defendants-Appellees filed motions to dismiss
this appeal for lack of jurisdiction. Appellees’ motions and
Appellants’ response were carried with the case so that the issue
of whether this Court has jurisdiction could be decided alongside
the issue of whether the district court’s dismissal constitutes an
abuse of discretion.
II. DISCUSSION
The threshold question in this case is whether this Court has
jurisdiction to hear this appeal. In order to hear this case we
must determine that the district court’s order is final, and thus
appealable. See 28 U.S.C. § 1291. This Court lacks jurisdiction
over the appeal for two reasons: (1) Defendants-Appellees raised the
issue that the district court did not set forth judgment on a
separate document in accordance with Rule 58; and (2) the district
court’s order does not end the litigation on the merits.
First, in Nagle v. Lee, 807 F.2d 435 (5th Cir. 1987), this
Court acknowledged:
the [Supreme] Court emphasized that where
the district court had evidenced its
intent that an opinion and order would
represent its final decision in the case
and the clerk records that order and
neither party objects to the lack of a
separate judgment document, the parties
4
Rule 58 provides that, with limited exceptions, “[e]very
judgment...must be set forth on a separate document.”
FED.R.CIV.P. 58.
4
will have waived the requirements of rule
58 and the appellate court may take
jurisdiction over this “final” judgment.
Id. at 441 (emphasis added)(citing Bankers Trust Co. v. Mallis, 435
U.S. 381, 386 (1978)). Similarly, this Court has held that “we may
take jurisdiction of an appeal from a ‘final decision’ under
[section] 1291, even though no separate judgment has been entered,
when the parties fail to raise the issue.”5 Hanson v. Town of
Flower Mound, 679 F.2d 497, 501 (5th Cir. 1982)(emphasis added).
In accordance with this principle, this Court has refused to hear
appeals where the district court did not comply with Rule 58 and an
appellee asserted lack of jurisdiction. Nagle, 807 F.2d at 441
(“Consistent with Hanson, we have dismissed an appeal for
noncompliance with rule 58 where an appellee asserted lack of
jurisdiction.” (citing Seal v. Pipeline, Inc., 724 F.2d 1166 (5th
Cir. 1984))).
Defendants-Appellees, in this case, have raised the issue that
the district court did not enter a separate judgment. The fact that
Defendants-Appellees have objected to the district court’s
noncompliance with Rule 58 mandates a dismissal. See Seal, 724 F.2d
at 1167.
5
The panel also noted that the Supreme Court’s decision in
Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978), did not affect
the law regarding the separate document requirement when an
appellee does object to the district court’s failure to comply
with rule 58. Hanson v. Town of Flower Mound, 679 F.2d 497, 502
(5th Cir. 1982).
5
This Court also lacks jurisdiction over the appeal because the
district court’s order does not end the litigation on the merits.
A “final decision” is one that “ends the litigation on the merits
and leaves nothing for the court to do but execute the judgment.”
Catlin v. United States, 324 U.S. 229, 233 (1945).6
The district court’s order dismissed Appellants’ claims without
prejudice. Moreover, the court expressly gave Appellants the
opportunity to re-file or amend their complaint.7 Finally, because
the court did not reach Appellants’ substantive arguments, its order
did not dispose of the merits of the litigation. Consequently, we
find that the district court’s order is not final; thus it is not
appealable.8
6
Similarly, this Court has stated:
“When a decree finally decides and
disposes of the whole merits of the
cause, and reserves no further
questions or directions for the
future judgment of the court, so
that it will not be necessary to
bring the cause again before the
court for its final decision, it is
a final decree.”
Anastasiadis v. S.S. Little John, 339 F.2d 538, 539 (5th Cir.
1964)(quoting Beebe v. Russell, 60 U.S. 283 (1856)).
7
We are also convinced that the district court’s failure to
enter judgment on a separate document also evidences the court’s
intent to not issue a final decision.
8
Appellants also argue that the district court should have
entered a default judgment for them because Appellees filed a
motion to dismiss instead of an answer. Although a motion to
dismiss is not a responsive pleading, because the district court
considered Appellees’ motion pursuant to Rule 12 to include a
motion under Rule 12(e) for a more definite statement, Appellees
6
III. CONCLUSION
Because this Court lacks jurisdiction, we DISMISS the appeal.
were not required to file a responsive pleading until the court
ruled on its pending motion. FED.R.CIV.P. 12(f); McZeal v. Ocwen
Fin. Corp., 252 F.3d 1355 (5th Cir. 2001).
7