Peabody v. Weeks

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 1, 1999
• Docket: 98-31279
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 98-31279 Summary Calendar _________________

ANDREW LEARNED PEABODY; ET AL,

Plaintiffs, versus

GRADY C WEEKS; ET AL,

Defendants.

GRADY C WEEKS; CATHERINE S WEEKS; KENNETH WOOD; KATHERINE WOOD,

Defendants - Third Party Plaintiffs - Appellants, versus

FIRST FINANCIAL INSURANCE CO; PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY,

Third Party Defendants - Appellees.

Appeal from the United States District Court for the Western District of Louisiana (96-CV-2283)

July 1, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Grady C. Weeks et. al appeal an order of the district court dismissing the claims against third-

party defendants Prudential Property and Casualty Insurance Co. (“Prudential”) and First Financial

Insurance Co. (“First Financial”) with prejudice. After entering the order, the court issued a judgment

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. in which it stated that, “[t]he defendants reserve all claims against third-party defendants” Prudential

and First Financial. The judgment, however, did not order that the third-party claims be dismissed

with or without prejudice.

In a lawsuit that contains multiple claims and/or multiple parties, a final judgment exists only

if it meets one of two conditions: (1) the district court must expressly determine that there is no just

reason for delay and must expressly direct the entry of the judgment; or (2) the judgment must

adjudicate all of the claims and the rights and liabilities of all the parties. See FED. R. CIV. P. 54(b);

Bader v. Atlantic Int’l, Ltd., 986 F.2d 912, 914-15 (5th Cir. 1993). The district court did not order

the entry of the judgment pursuant to Rule 54(b), and the judgment did not adjudicate all of the third-

party claims.1 Therefore, the judgment is an unappealable interlocutory order and does not qualify

as a final judgment. See Liquid Drill Inc. v. U.S. Turnkey Exploration, Inc., 48 F.3d 927, 930 n.5

(5th Cir. 1995); Dillon v. State of Miss. Military Dep’t, 23 F.3d 915, 917 (5th Cir. 1994). As there

is no final judgment in this case, we do not have appellate jurisdiction under 28 U.S.C. § 1291. See

Dillon, 23 F.3d at 917. Accordingly, we DISMISS the appeal for lack of jurisdiction.

1 It is implicit in the judgment that the court would dismiss the third-party claims without prejudice; however, this result conflicts with the earlier order dismissing the claims with prejudice. The resolution of this inconsistency must occur in the district court. See Aluminum Co. of Am. v. Beazer E., Inc., 124 F.3d 551, 557 (3d Cir. 1997) (“an appellate court must determine whether, at the time it is examining its jurisdiction, there remain unresolved issues to be adjudicated in the district court”).