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 1997-10

Re v. New Vistas ( 1997 )


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  •                                                                              F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 10 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
AMON RE,
Plaintiff-Appellant,
No. 96-2265
v.
(D.C. No. 96-CV-546)
(District of New Mexico)
NEW VISTAS and STATE OF NEW
MEXICO,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
Plaintiff-appellant Amon Re, proceeding pro se, appeals the decision of the
district court dismissing his claims against the State of New Mexico. Because we
lack subject-matter jurisdiction under
    28 U.S.C. § 1291
    , we must dismiss this
appeal sua sponte.
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the determination
of this appeal. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
Mr. Re filed a complaint in this action against his former employer New
Vistas and against the State of New Mexico, seeking money damages for alleged
violations of the Americans with Disabilities Act of 1990,
    42 U.S.C. §§ 12101
    -
13; Title I of the Civil Rights Act of 1991,
    42 U.S.C. § 1981
    ; and the New
Mexico Human Rights Act, N.M.S.A. § 28-1-7. (See R., Compl., at 3.) Rather
than filing an answer, the State responded with a motion to dismiss all claims
against it under Fed. R. Civ. P. 12(b)(6). (See R., Mot. & Mem. Br. in Supp. of
Mot. to Dismiss All Claims, at 1.) The district court granted the State’s motion,
dismissing all claims, without prejudice, on the grounds that the state has
immunity from suit under the Eleventh Amendment. (See R., Mem. Op. & Order,
at 2.) 1 Mr. Re argues in this appeal that because the constitutional authority for
both the Americans with Disabilities Act and the Civil Rights Act of 1991
emanated from section five of the Fourteenth Amendment, and because Congress
has clearly expressed its intent to abrogate the states’ Eleventh Amendment
immunity, his claims against the State are not precluded. (See Appellant’s
Opening Br. at 3.)
1
Four days after the entry of this dismissal, New Vistas filed its answer to Mr. Re’s
complaint, denying his allegations. (See R., New Vistas’ Answer to Compl., at 5-7.) The
district court’s docket record shows that there has been no action on Mr. Re’s claim
against New Vistas since New Vistas filed its answer on September 16, 1996. The record
also fails to reveal any final judgment with respect to New Vistas.
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This court has jurisdiction to consider an appeal under
    28 U.S.C. § 1291
    only when the district court has entered a final judgment or when it has certified
an issue for appeal under Fed. R. Civ. P. 54(b). See Hutchinson v. Pfeil,
    105 F.3d 566
    , 569 (10th Cir. 1997). Under
    28 U.S.C. § 1291
     and Rule 54(b), a district
court decision is not considered a “final judgment” unless it “‘ends the litigation
on the merits and leaves nothing for the court to do but execute the judgment.’”
Utah v. Kennecott Corp.,
    14 F.3d 1489
    , 1492 (10th Cir. 1994) (quoting Catlin v.
United States,
    324 U.S. 229
    , 233 (1945)). When a district court enters a judgment
as to some, but not all, parties in a case, that judgment generally is not “final” for
purposes of appeal. See Hutchinson,
    105 F.3d at 569
    .
In this case, Mr. Re’s claims against New Vistas are still pending before the
district court, and there is no evidence in the record that the district court certified
for appeal its dismissal of the claims against the State. Thus, Mr. Re’s case has
not reached a final judgment, and we are without subject-matter jurisdiction.
Even though the parties have not raised this jurisdictional issue in their briefs, we
must dismiss this appeal sua sponte. See Tuck v. United Servs. Auto. Ass’n,
    859 F.2d 842
    , 844 (10th Cir. 1988) (“‘If the parties do not raise the question of lack
of jurisdiction, it is the duty of the federal court to determine the matter sua
sponte.’”) (quoting Basso v. Utah Power & Light Co.,
    495 F.2d 906
    , 909 (10th
Cir. 1974)).
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For the foregoing reasons, the appeal is DISMISSED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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