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Schildkraut v. Bally's Casino New Orleans, LLC , 142 F. App'x 800 ( 2005 )


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  •                                                       United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT                   July 15, 2005
Charles R. Fulbruge III
Clerk
No. 04-31170
Summary Calendar
SAMUEL MICHAEL SCHILDKRAUT,
Plaintiff-Appellant,
versus
BALLY’S CASINO NEW ORLEANS, LLC, “The Belle” or “The Company”,
doing business as Belle of Orleans LLC, doing business as Bally’s
Casino Lakeshore Resort, doing business as Bally’s Casino New
Orleans, doing business as Bally’s Louisiana Inc.; PARK
PLACE/BALLY’S ENTERTAINMENT CORPORATION, NYSE, PPE, doing
business as Park Place Entertainment Corporation, doing business
as Caesars Entertainment, Inc.; BALLY’S MIDWEST CASINO, INC.,
doing business as Bally’s Louisiana II Inc., doing business as
Bally’s Holding Company, Inc.,
Defendants-Appellees.
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SAMUEL MICHAEL SCHILDKRAUT,
Plaintiff-Appellant,
versus
BALLY’S CASINO NEW ORLEANS, LLC, The Belle or The Company, doing
business as Belle of Orleans LLC, doing business as Bally’s
Casino Lakeshore Resort, doing business as Bally’s Casino New
Orleans, doing business as Bally’s Louisiana Inc.; PARK
PLACE/BALLY’S ENTERTAINMENT CORPORATION, NYSE, PPE, doing
business as Park Place Entertainment Corporation, doing business
as Caesars Entertainment, Inc.; BALLY’S MIDWEST CASINO INC.,
doing business as Bally’s Louisiana Inc., doing business as
Bally’s Holding Company, Inc., doing business as Bally’s
Louisiana II Inc.,
Defendants-Appellees.
No. 04-31170
-2-
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:04-CV-366
USDC No. 2:04-CV-504
--------------------
Before JOLLY, HIGGINBOTHAM, and WIENER, Circuit Judges.
PER CURIAM:*
Samuel Michael Schildkraut appeals from the magistrate
judge’s summary-judgment dismissal of claims under federal and
state law against Schildkraut’s former employer, Bally’s Casino
New Orleans, LLC, and other related business entities.
Schildkraut has filed a number of motions.   He requests the
appointment of counsel, a transcript at government expense, and
to proceed in forma pauperis on appeal.   Schildkraut also seeks
the recusal of the magistrate judge and the Chief Judge of this
court, to name the magistrate judge as a co-defendant, to have
this court “answer a few questions,” and to have several exhibits
entered into evidence.   He requests that his motions be disposed
of immediately.
Because, as explained below, we lack jurisdiction over this
appeal, Schildkraut’s motions are DENIED AS MOOT.
“This Court must examine the basis of its jurisdiction, on
its own motion, if necessary.”   Mosley v. Cozby,
    813 F.2d 659
    ,
660 (5th Cir. 1987).   Federal appellate courts have jurisdiction
*
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.
No. 04-31170
-3-
over appeals from (1) final orders, (2) certain interlocutory
orders, (3) proceedings that are deemed final due to
jurisprudential exception, and (4) orders that have been
certified as final or that have been properly certified for
appeal by the district court.   28 U.S.C. §§ 1291, 1292(a),(b);
FED. R. CIV. P. 54(b); Dardar v. Lafourche Realty Co.,
    849 F.2d 955
    , 957 (5th Cir. 1988); Save the Bay, Inc. v. United States
Army,
    639 F.2d 1100
    , 1102 (5th Cir. 1981).
Our review of the record reveals that the defendants
asserted a counterclaim against Schildkraut, alleging that
Schildkraut had defamed them by broadcasting false and
inflammatory statements.   The counterclaim remains unadjudicated.
“[A]s a general rule, all claims and issues in a case must
be adjudicated before appeal, and a notice of appeal is effective
only if it is from a final order or judgment.”   Swope v.
Columbian Chemicals Co.,
    281 F.3d 185
    , 191 (5th Cir. 2002).
Because the magistrate judge has not issued either a final
appealable judgment nor a judgment certified for appeal under
FED. R. CIV. P. 54(b), and there is still an outstanding claim
between the parties, this court lacks jurisdiction at present.
See id.; Briargrove Shopping Ctr. Joint Venture v. Pilgrim
Enters., Inc.,
    170 F.3d 536
    , 538-39 (5th Cir. 1999); Ronel Corp.
v. Anchor Lock of Florida,
    312 F.2d 207
    , 208 (5th Cir. 1963).
Accordingly, the appeal is DISMISSED for lack of jurisdiction.
APPEAL DISMISSED; MOTIONS DENIED AS MOOT.