IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-31287

JOSEPH CURLEY BABINEAUX, Etc., Et Al.,

Plaintiffs,

JOSEPH CURLEY BABINEAUX, Individually & on behalf of Bradley Babineaux on behalf of Brandon Babineaux on behalf of Billy Babineaux on behalf of David Babineaux,

Plaintiff-Appellant,

v.

M & W TANK CONSTRUCTION CO, INC.; ET AL.,

Defendants,

M & W TANK CONSTRUCTION CO., INC.,

Defendant-Appellee. _______________________________

Appeal from the United States District Court for the Western District of Louisiana (98-CV-1209) _______________________________

November 2, 1999

Before GARWOOD, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Joseph Curley Babineaux (“Babineaux”) appeals from

the determination of the district court denying remand and

granting summary judgment to appellee M&W Tank Construction, Inc.

* Pursuant to 5th Cir. Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4. (“M&W”) for the reason that Babineaux had failed to raise a

genuine issue of material fact sufficient to establish the

intentional tort exception to the Louisiana Worker’s Compensation

Act, La. R.S. 23:1032. For the reasons stated by the district

court in its memorandum ruling of September 10, 1998, we agree

that Babineaux cannot recover against M&W. See also Reeves v.

Structural Preservation Sys.,

(La. 1999).

Denial of remand and granting summary judgment were therefore

proper.

Appellee M-I Drilling Fluids, LLC. (“M-I”) intervened to

argue that Babineaux is covered by the Longshore and Harbor

Workers’ Compensation Act, and that it provides his exclusive

remedy against his employer. We observe, however, that the

district court neither considered nor issued a judgment in these

matters. Inasmuch as we consider this case under a Federal Rule

of Civil Procedure 54(b) certification of a final order for

immediate appeal, we have no jurisdiction to consider M-I’s

claims because, obviously, the district court certified no final

judgment with respect to these issues.

AFFIRMED

2