Opinion
CIVIL ACTION NO: 00-2262 SECTION: "R" (4)
August 2, 2001
ORDER AND REASONS
Before the Court is plaintiff's "motion for devolutive appeal." plaintiff also asks the Court to direct entry of final judgment pursuant to Federal Rule of Civil procedure 54(b). For the following reasons, the Court denies the motions.
I. Background
On May 3, 2001, this Court denied plaintiff's motion to remand because plaintiff's claims against the instate defendants had prescribed. The Court therefore found that plaintiff had fraudulently joined the instate defendants and did not consider the non-diverse defendants for purposes of diversity jurisdiction. On July 2, 2001, plaintiff filed this motion requesting a devolutive appeal and for the Court to enter a final judgment pursuant to Federal Rule of Civil procedure 54(b).
II. Discussion
A. Motion for Final Judgment
When a refusal to remand is coupled with a final order, an appellate court has jurisdiction to review the district court's denial of the motion. See Burden v. General Dynamics Corp., 60 F.3d 213, 215 (5th Cir. 1995). When deciding whether to certify a judgment under Rule 54(b), a district court must determine (1) that it is dealing with a final judgment and (2) whether any just reason for delay exists. See Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8, 110 S.Ct. 1460, 1464-65 (1980); Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enter., 170 F.3d 536, 539 (5th Cir. 1999).
Even if the Court's determination that the instate defendants were fraudulently joined were a final judgment, plaintiff must still show that there is no just reason for delay to warrant certification under Rule 54 (b). See Kerr v. Smith Petroleum Co., 1996 WL 392178, *1 (E.D. La. 1996); Estate of Wilson v. Grow Group, Inc., 1995 WL 608496, *1 (E.D. La. 1995). In making this determination, the district court must weigh "the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Road Sprinkler Fitters Local Union v. Cont'l Sprinkler Co., 967 F.2d 145, 148 (quoting Dickinson v. petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324 (1950)). The Court should consider whether the appellate court would have to decide the same issues more than once if there were subsequent appeals. See Kerr, 1996 WL 392178 at *1.
Plaintiff argues that, without being able to appeal immediately, he will be left without further recourse against the instate local defendants. Plaintiff also contends that a final judgment would expedite a final determination of these proceedings. On the other hand, defendants argue that plaintiff should wait for defendants to file a motion to dismiss all of the defendants on the basis of prescription, allow the Court to rule on this motion, and then seek an appeal of a final judgment. The Court agrees.
After weighing the inconvenience and costs of piecemeal review against the danger of denying justice, the Court finds that entry of a Rule 54 (b) final judgment is inappropriate at this time. The Court finds that no injustice or hardship currently exists that would be alleviated by an immediate appeal and that no injustice would result from a delay in the entry of final judgment. See Kerr, 1996 WL 392178 at *1 (denying the motion for a final judgment where the moving party would eventually be allowed to address all appeals at one time). Because the Court anticipates a motion for dismissal of the remaining defendants in the near future, the Court will not grant a final judgment at this time.
B. Interlocutory Appeal
To the extent that plaintiff's motion can be characterized as seeking an interlocutory appeal, his motion is denied. Before a district court may certify an order for interlocutory appeal, the moving party must demonstrate that the matter involves (1) a controlling question of law, (2) as to which there is substantial ground for difference of opinion, and (3) an immediate appeal from the order would materially advance the ultimate termination of the litigation. See 28 U.S.C. § 1292 (b). See also Complaint of L.L.P. D. Marine, Inc., 1998 WL 66100, *1 (E.D. La. 1998) (holding that the movant bears the burden of satisfying all of these criteria). The Fifth Circuit has held that an interlocutory appeal is "exceptional" and "assuredly does not lie simply to determine the correctness of a judgment." Steel Coils, Inc. v. M/V Lake Marion, 2000 WL 1801842, *2 (E.D. La. 2000) (quoting Clark-Dietz Assocs. Eng'rs, Inc. v. Basic Constr. Co., 702 F.2d 67, 68-69 (5th Cir. 1983)).
In finding that plaintiff had fraudulently joined the instate defendants, the Court found that plaintiff's claims were not tolled by a later class action suit. See Lanzas v. the American Tobacco Company, Inc., 2001 WL 474281, *3 (E.D. La. May 3, 2001). Plaintiff has failed to satisfy met his burden of demonstrating that there is a "substantial ground for difference of opinion" on this issue. Plaintiff has not demonstrated, or even attempted to demonstrate, that there are conflicting or contradictory opinions in the Fifth Circuit regarding prescription and class actions. Moreover, plaintiff has failed to demonstrate that an immediate resolution of this issue would materially advance the ultimate termination of the litigation. Accordingly, the Court will not certify this issue for interlocutory appeal.
III. Conclusion
For the foregoing reasons, the Court denies plaintiff's motions.