Foret v. Wst Connections Bayou ( 2021 )

Case: 20-30685 Document: 00515830695 Page: 1 Date Filed: 04/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 21, 2021
No. 20-30685
Summary Calendar Lyle W. Cayce
Clerk
Christopher Foret,
Plaintiff—Appellant,
versus
Waste Connections Bayou, Incorporated, formerly
known as Progressive Waste Solutions of LA,
Incorporated; ACE American Insurance Company,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:20-CV-467
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
For this court to exercise appellate jurisdiction, we must first
determine whether the district court’s order staying Mr. Foret’s case was a
final appealable judgment for purposes of 28 U.S.C. § 1291. An order staying
*
Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-30685 Document: 00515830695 Page: 2 Date Filed: 04/21/2021
No. 20-30685
judicial proceedings is ordinarily not considered final and is hence not
appealable. Kershaw v. Shalala, 9 F.3d 11, 13–14 (5th Cir. 1993) (citing Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n.10 (1983)).
Since we find no applicable exception to that rule, we dismiss the appeal for
lack of jurisdiction.
I.
The district court learned of an ongoing criminal investigation
potentially involving the counsel or parties to this action, the details of which
are not widely known. At a status conference, the district court suggested
that defendant-appellee file a motion to stay. Defendant-appellee did so. The
district court then issued a written order that provided a detailed explanation
of why a stay was warranted, granted the motion, and stayed the case pending
completion of the criminal investigation.
This case was one of twelve or thirteen cases involving similar car
accidents on Interstate Ten in New Orleans where several judges in the
Eastern District of Louisiana issued stays due to an ongoing criminal
investigation. The fact patterns all involve alleged collisions with commercial
vehicles on I-10 and plaintiff-appellant’s counsel in this case represents or
represented the plaintiffs in those cases.
II.
As mentioned, a grant of a motion to stay is not typically considered a
final order and is hence not appealable. Kershaw, 9 F.3d at 13–14; § 3914.13
Finality—Orders Prior to Trial—Stay Orders, 15A Fed. Prac. & Proc.
Juris. § 3914.13 (2d ed.). Even so, Mr. Foret contends that we have juris-
diction under the collateral order doctrine and argues in the alternative that
his motion should be considered a petition for a writ of mandamus. Neither
argument convinces.
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No. 20-30685
For the collateral order doctrine to apply, (1) the order must finally
dispose of an issue so that the district court’s decision may not be
characterized as tentative, informal, or incomplete; (2) the question must be
serious and unsettled; (3) the order must be separable from, and collateral to,
the merits of the principle case; and (4) there must be a risk of important and
irreparable loss if an immediate appeal is not heard because the order will be
effectively unreviewable on appeal from final judgment. Kershaw, 9 F.3d at
14; Equal Emp. Opportunity Comm’n v. Kerrville Bus Co., Inc., 925 F.2d 129,
134 (5th Cir. 1991); Acosta v. Tenneco Oil Co., 913 F.2d 205, 207–08 (5th Cir.
1990).
Mr. Foret makes no argument as to how the motion to stay qualifies
for review as a collateral order. In conclusory fashion, he simply says it does.
Regardless, we fail to see how the stay either risks irreparable loss or presents
a need for this court to immediately review the order because it disposes of
an issue or presents a serious question in need of a prompt answer. At this
point, the case has been stayed for only a few months and Mr. Foret does not
argue that the stay will prejudice him or put him in a position where he will
be unable to pursue his case once the stay has been lifted.
Further, a writ of mandamus is a drastic and extraordinary remedy,
and a writ may issue only if Mr. Foret has shown a clear and indisputable right
to it. In re JPMorgan Chase & Co., 916 F.3d 494, 500 (5th Cir. 2019).
“Satisfying this condition ‘require[s] more than showing that the district
court misinterpreted the law, misapplied it to the facts, or otherwise engaged
in an abuse of discretion.’” Id. (citing In re Lloyd’s Register, 780 F.3d 283, 290
(5th Cir. 2015)). Instead, Mr. Foret must demonstrate a “‘clear abuse[] of
discretion that produce[s] patently erroneous results.’” Id. Put differently,
Mr. Foret must show not only that the district court erred but that it clearly
and indisputably erred. In re Occidental Petroleum Corp., 217 F.3d 293, 295
(5th Cir. 2000).
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The district court here provided several reasons why it felt a stay was
needed. Though there is no date certain for lifting the stay, Mr. Foret fails to
show that the district court clearly and indisputably erred in concluding that
this case presents “special circumstances” such that a stay would “prevent
a party from suffering substantial and irreparable prejudice.” FDIC v.
Maxxam, Inc., 523 F.3d 566, 592 (5th Cir. 2008) (quoting SEC v. First Fin.
Grp. of Tex., Inc., 659 F.2d 660, 668 (5th Cir. 1981)). The court provided a
point-by-point analysis of six factors commonly considered when deciding
whether to stay a case in light of a pending criminal investigation. See Alcala
v. Tex. Webb Cty., 625 F.Supp.2d 391, 399 (S.D. Tex. 2009) (collecting
district court cases from within the Fifth Circuit applying these factors). It
then concluded that a stay was justified and in the best interest of the parties
considering the ongoing investigation and told the parties that it would lift
the stay upon the investigation’s completion. There is no indication that the
investigation is dragging on unnecessarily. If it becomes apparent that the
investigation is taking an excessive amount of time, and that any party is
suffering from substantial and irreparable prejudice as a result, then the
district court may need to reassess whether the stay is still warranted.
III.
Accordingly, we DISMISS the appeal for lack of jurisdiction.
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