Dennis v. Complete Care Svcs ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10673
Summary Calendar
WANDA DENNIS,
Plaintiff - Appellant,
VERSUS
COMPLETE CARE SERVICES LP;
COMPLETE CARE SERVICES OF TEXAS, INC.,
Defendants - Appellees.
Appeal from the United States District Court
For the Northern District of Texas
( 4:99-CV-457-Y )
December 27, 2000
Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Wanda Dennis appeals from the district
court’s order staying her civil rights suit until it is determined
whether or not her attorney has been disbarred. Dennis argues that
*
Pursuant to 5TH CIR. R. 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opinion should not be published and is not precedent except under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. R. 47.5.4.
1
this court has jurisdiction under 28 U.S.C. § 1291, § 1292(a)(1),
and the collateral order doctrine. She argues that because she
cannot afford substitute counsel, the order effectively denies her
First Amendment right of access to the courts, her Fifth Amendment
right to due process, her Sixth Amendment right to effective
assistance of counsel, and her Seventh Amendment right to trial by
jury.
To assert jurisdiction under 28 U.S.C. § 1291, the district
court’s order must be a final decision. See Moses H. Cone Mem’l
Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 9 (1983). An order
granting a stay of proceedings is deemed final for purposes of
appellate jurisdiction when the stay requires “all or essentially
all of the suit to be litigated in state court.” K-Mart
Corporation v. Aronds, 123 F.3d 297, 300 (5th Cir. 1997). The
order does not become final when “a district court enters an order
staying its own proceedings in favor of other proceedings within
the same federal judicial system.” Kershaw v. Shalala, 9 F.3d 11,
14 (5th Cir. 1993). Because the district court’s order does not
require Dennis’s suit to be litigated in state court, it is not a
final decision for purposes of this Court’s appellate jurisdiction.
An interlocutory order is appealable under 28 U.S.C. §
1292(a)(1) if the order “has the same practical effect as granting
or denying an injunction . . . [and] a party shows that the order
has serious, perhaps irreparable, consequence.” Rauscher Pierce
2
Refsnes, Inc. v. Birenbaum, 860 F.2d 169 (5th Cir. 1988)
(discussing Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271 (1988)). The district court’s order does not have the same
effect as an injunction for purposes of section 1292(a)(1) and
therefore is not subject to appellate review. See id.; Jolley v.
Paine Webber Jackson & Curtis, Inc., 864 F.2d 402, 403-04 (5th Cir.
1989).
The collateral order doctrine allows a litigant to appeal a
district court’s order if the order satisfies the following:
(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 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 (citing Coopers & Lybrand v. Livesay, 437
U.S. 463, 468-69 (1978)). Stay orders rarely satisfy these
requirements, and this case is no exception. See id. Plaintiff’s
alleged financial inability to hire substitute counsel is not the
type of irreparable loss that the collateral order doctrine
addresses.
3
In sum, this Court has no jurisdiction to review the district
court’s order under 28 U.S.C. § 1291, § 1292(a)(1), or the
collateral order doctrine. The appeal is therefore dismissed.
DISMISSED
4