Sharlyn Bertrand v. Greg Fischer , 399 F. App'x 857 ( 2010 )

Case: 10-30226 Document: 00511246569 Page: 1 Date Filed: 09/28/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 28, 2010
No. 10-30226 Lyle W. Cayce
Summary Calendar Clerk
SHARLYN BERTRAND
Plaintiff - Appellant
v.
TARGET CORPORATION OF MINNESOTA; GREG FISCHER;
ACE AMERICAN INSURANCE COMPANY
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 09-CV-76
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
In this personal injury case, Plaintiff Sharlyn Bertrand seeks to recover
for injuries she alleges she sustained when she fell in a store owned by
Defendant Target Corporation of Minnesota, managed by Defendant Greg
Fischer, and insured by Defendant Ace Insurance Company. Bertrand filed this
case originally in state court in Louisiana. Defendants removed the case to the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-30226 Document: 00511246569 Page: 2 Date Filed: 09/28/2010
No. 10-30226
district court on the basis of diversity of citizenship of the parties. Although
Fischer and Bertrand are both residents of Louisiana, which would appear to
defeat complete diversity, Defendants defended their removal on the argument
that Defendant Fischer was improperly joined because there was no cause of
action against him personally under Louisiana law. See Smallwood v. Ill. Cent.
R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (one of two “test[s] for fraudulent
joinder is whether the defendant has demonstrated that there is no possibility
of recovery by the plaintiff against an in-state defendant, which stated
differently means that there is no reasonable basis for the district court to
predict that the plaintiff might be able to recover against an in-state
defendant”). Bertrand contested removal, arguing that Defendants’ Notice of
Removal was untimely and that she had stated a claim against the Louisiana
defendant. Bertrand also moved to amend her complaint to add two other
Louisiana defendants.
In a memorandum order dated December 29, 2009, the magistrate judge
denied Bertrand’s motion to remand and her motion to amend because Bertrand
could not state a claim against Fischer, and therefore, he was improperly joined
and it was futile to allow her to amend. In a report and recommendation of the
same date, the magistrate judge recommended dismissing the claims against
Fischer with prejudice. Subsequently, in a judgment entered February 18, 2010,
the district court adopted the report and recommendation of the magistrate
judge and dismissed Bertrand’s claims against Fischer with prejudice; in the
same judgment, the district court affirmed the magistrate judge’s memorandum
order denying Bertrand’s motions for remand and to amend her complaint. On
March 10, 2010, Bertrand filed a Notice of Appeal from the district court’s
February 18, 2010 judgment.
“This Court must consider, sua sponte if necessary, whether appellate
jurisdiction exists.” Clark v. Johnson, 278 F.3d 459, 460 (5th Cir. 2002),
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abrogation on other grounds recognized by Rosales v. Quarterman, 565 F.3d 308,
312 (5th Cir. 2009). Bertrand asserts we have jurisdiction to hear this appeal
pursuant to 28 U.S.C. § 1291. Under § 1291, our jurisdiction extends only to
“appeals from . . . final decisions of the district courts of the United States.” 28
U.S.C. § 1291 (emphasis added). “[A]n order denying remand of a case removed
to federal court is not a final order within the meaning of 28 U.S.C. § 1291,” and
therefore “cannot be appealed unless certified by the district court in accordance
with 28 U.S.C. § 1292(b).” Melancon v. Texaco, Inc., 659 F.2d 551, 552-53 (5th
Cir. 1981). Furthermore, “[d]enial of leave to amend pleadings is ordinarily not
final for purposes of appeal.” Wells v. S. Main Bank, 532 F.2d 1005, 1006 (5th
Cir. 1976). Finally, “[w]here, as here, an action involves multiple parties, a
disposition of the action as to only some of the parties does not result in a final
appealable order absent a certification by the district court under Federal Rule
of Civil Procedure 54(b).” Transit Mgmt. of Se. La., Inc. v. Group Ins. Admin.,
Inc., 226 F.3d 376, 381 (5th Cir. 2000).1 The district court’s February 18, 2010
judgment and the magistrate judge’s December 29, 2010 memorandum order did
not dispose of Bertrand’s claims against Defendants Target Corporation of
Minnesota and Ace American Insurance Company, and the district court did not
issue a certification under Rule 54(b). Therefore, we lack jurisdiction to consider
the instant appeal. See Thompson v. Betts, 754 F.2d 1243, 1245-46 (5th Cir.
1
Rule 54(b) of the Federal Rules of Civil Procedure allows a district court to certify for
appeal an otherwise non-final judgment:
[Rule] 54(b) provides that, in cases involving multiple claims or multiple
parties, an order disposing of one or more, but fewer [than] all, the claims or
parties terminates the action in the district court only if the court (1) expressly
determines that there is no just reason for delay, and (2) expressly directs an
entry of judgment. A certification by the district court that meets these two
requirements is “an essential prerequisite to an appeal.” Any appeal from a
decision adjudicating a portion of a case that is not accompanied by a Rule 54(b)
certificate must be dismissed for want of jurisdiction.
Boudeloche v. Tnemec Co., 693 F.2d 546, 547 (5th Cir. 1982) (quoting 10 CHARLES ALAN
WRIGHT & ARTHUR R. MILLER , FEDERAL PRACTICE AND PROCEDURE § 2660, at 82 (1973)).
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No. 10-30226
1985) (“It is well established that, ‘[i]n the absence of a certification by the
district court that meets the[] two requirements [of Rule 54(b)], a partial
disposition of a multi-claim or multi-party action does not qualify as a final
decision under Section 1291 and is ordinarily an unappealable interlocutory
order. . . . There is no hint in the record that the district court certified its order
as a final judgment under [R]ule 54(b) or that the parties even sought such a
ruling. Thus, because the district court’s order has not been certified under
[R]ule 54(b), the order does not constitute a final judgment within the meaning
of 28 U.S.C. § 1291.’” (quoting Huckeby v. Frozen Food Express, 555 F.2d 542,
545-46 (5th Cir. 1977)).
Accordingly, Bertrand’s appeal is DISMISSED.
4