Before you can appeal, you need an appealable judgment. That is the lesson of two recent cases, one from the Louisiana Fourth Circuit, the other from the U.S. Fifth Circuit. Each provides a lesson in appellate jurisdiction.
In Tsegaye v. City of New Orleans, 2015-0676 (La. App. 4 Cir. 12/18/15), — So. 3d —, 2015 WL 9263888, the Fourth Circuit dismissed the appeal because the judgment appealed from lacked the necessary decretal language. What is this “decretal language”? Writing for the court, Judge Bonin explained:
[F]or the language of a judgment to be considered “decretal,” it “must name the party in favor of whom the ruling is ordered, the party against whom the ruling is is ordered, and the relief that is granted or denied.” [Bd. of Supervisors of LSU v. Mid City Holdings, LLC, 14-0506 p. 3 (La. App. 4 Cir. 10/15/14), 151 So. 3d 908, 910] (emphasis added).
The judgment appealed from recited that a defendant’s motion for summary judgment was granted, but failed to identify the losing party or state the relief granted by the judgment, that is, it failed to include language dismissing the plaintiff’s suit.
Up to this point, the opinion followed many other Louisiana opinions dismissing appeals for lack of decretal language in the judgment being appealed. But Tsegaye added an interesting wrinkle: in its order granting the appeal, the trial court purported to designate the judgment as final under La. Code Civ. P. art.1915. But the art. 1915 designation was insufficient to make up for the absence of decretal language in the judgment. 1
Lesson: An art. 1915(B) designation does not work on a judgment lacking decretal language.
The recent U.S. Fifth Circuit case of Luvata Grenada, L.L.C. v. Danfoss Industries S.A. de C.V., No. 15-60477 (5th Cir. Feb. 11, 2016), presented a different scenario. There, the district court granted one defendant’s motion to dismiss for lack of personal jurisdiction, retaining jurisdiction over the other defendant. Under Fed. R. Civ. P. 54(b), a judgment dismissing fewer than all defendants is not appealable without a designation of finality and a finding of no just reason for delay. But rather than move the district court to amend the judgment under Rule 54(b), the plaintiff and the remaining defendant stipulated to a voluntary dismissal without prejudice. On appeal, both parties argued that the Fifth Circuit had appellate jurisdiction because the voluntary dismissal converted the previously non-final judgment into a final judgment. The Fifth Circuit disagreed, explaining, “The parties did not obtain a Rule 54(b) certification from the district court, and they cannot achieve the same result by ‘self help.’”
Lesson: If you need a Rule 54(b) designation, move for and obtain it from the district court. Otherwise, even with a cooperative appellee, your appeal is doomed.
1. Fortunately, the parties’ appellate efforts were not wasted because the Fourth Circuit converted the appeal into an application for a supervisory writ. The circumstances allowing such a conversion will be the subject of another post.