Cage v. BASF Corporation

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-31232 Conference Calendar

LARRY CAGE, Individually and as administrator of the estate of his minor children, Larry Cage, Jr. Beverly Cage, Christy Cage, and Janet Cage,

Plaintiff-Appellant,

versus

BASF CORPORATION,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Middle District of Louisiana USDC No. 94-CV-2669 - - - - - - - - - - June 25, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

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). In this civil action, the plaintiff, through

counsel, has filed a notice of appeal from an order of the

district court entered on November 27, 1996, granting the motion

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-31232 - 2 -

for summary judgment filed by defendant BASF Corporation.

However, the intervention of Control Valve Specialists and, more

particularly, the claim by BASF Corporation against Control Valve

Specialists remain to be adjudicated. Rule 54(b), Fed. R. Civ.

P., provides that “[w]hen more than one claim for relief is

presented in an action, . . . or when multiple parties are

involved, the court may direct the entry of a final judgment as

to one or more but fewer than all of the claims or parties only

upon an express determination that there is no just reason for

delay and upon an express direction for the entry of judgment.”

In the present case, the district court has not certified the

order for appeal, and accordingly, the appeal must be dismissed.

See Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131, 1133

(5th Cir. 1985); Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.

1985).

In so ruling, we conclude that the record fails to reflect

the district court's unmistakable intent to enter a partial final

judgment under Rule 54(b). Where there is at least a reference

to Rule 54(b) in some relevant portion of the record, we do not

require the judge to mechanically recite the words “no just

reason for delay”; we can make the “very reasonable assumption”

that the district judge knows the requirements of the “frequently

used rule.” See Kelly v. Lee's Old Fashioned Hamburgers, Inc.,

908 F.2d 1218, 1220-22 (5th Cir. 1990) (en banc). However, in

the present case, the district court did not mention either Rule No. 95-31232 - 3 -

54(b), or any language therefrom, in either the order from which

appeal is taken, or its order entered June 6, 1996, closing the

case for statistical purposes.

APPEAL DISMISSED.