Migdon v. 171 Holdings

Case: 21-30411 Document: 00516197092 Page: 1 Date Filed: 02/09/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED February 9, 2022 No. 21-30411 Lyle W. Cayce Clerk Kelly Migdon,

Plaintiff—Appellant, versus

171 Holdings, L.L.C., doing business as 171 Junction Roadhouse; Steve Anderson; A D R Holdings, L.L.C.,

Defendants—Appellees.

Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:18-CV-160

Before Smith, Costa, and Wilson, Circuit Judges.

Per Curiam:*

Kelly Migdon appeals an order dismissing her Title VII claim against defendant 171 Holdings, LLC. The problem is that other claims in the case are unresolved. The docket reflects a pending trial on the “issues that remain.” Presumably, these issues are an Equal Pay Act claim against 171

Case: 21-30411 Document: 00516197092 Page: 2 Date Filed: 02/09/2022

No. 21-30411

Holdings (the court granted summary judgment on liability in favor of Migdon but damages still need to be determined),1 and the claims against defendant Picayune Social House NOLA, LLC. With these claims still pending, there is not a final judgment. Dunlop v. Ledet’s Foodliner of Larose, Inc., 509 F.2d 1387, 1389 (5th Cir. 1975) (per curiam) (finding no final judgment because one of appellant’s claims was still pending); Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378–79 (5th Cir. 1980) (finding no final judgment because claims were still pending against other defendants); see also 15A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3909 (2d ed. 2021) (recognizing that subject to limited exceptions, a final judgment includes “only a judgment that finally determines all issues as to all parties involved in a case”). The absence of a final judgment usually means there can be no appeal. See 28 U.S.C. § 1291 (authorizing appeals only of “final decisions of the district courts”); Catlin v. United States, 324 U.S. 229, 233 (1945) (“A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.”).

There is a procedure that allows an appeal when a court has dismissed only some of the claims or parties from a case. See Fed. R. Civ. P. 54(b) (allowing issuance of partial final judgments “only if the court expressly determines that there is no just reason for delay”). But Migdon did not Case: 21-30411 Document: 00516197092 Page: 3 Date Filed: 02/09/2022

No. 21-30411 request a Rule 54(b) order and the district court did not enter one. See Thompson v. Betts, 754 F.2d 1243, 1245–46 (5th Cir. 1985). Nor does anything in the record indicate the “unmistakable intent to enter a partial final judgment” that we have required to infer entry of a Rule 54(b) judgment. Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en banc) (per curiam).

The finality rule avoids piecemeal review of a single lawsuit. Catlin, U.S. at 233–34. That purpose is implicated here. It is unlikely that deciding Migdon’s Title VII appeal now would prevent a second appeal once the remaining claims are resolved. The final judgment rule prevents us from reviewing this case “in fragments” and instead requires that we wait until the whole case is decided. Id. (quoting Luxton v. N. River Bridge Co., 147 U.S. 337, 341 (1893)). We thus DISMISS Migdon’s appeal for lack of jurisdiction.