Trevor Charles v. Thomas Atkinson ( 2016 )

Case: 15-30775 Document: 00513559512 Page: 1 Date Filed: 06/22/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-30775 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
June 22, 2016
TREVOR CHARLES; JENNIFER CHARLES, Lyle W. Cayce
Clerk
Plaintiffs - Appellants
v.
THOMAS LEE ATKINSON; CONSOLIDATED FABRICATIONS
CONSTRUCTION, INCORPORATED; AMERISURE INSURANCE
COMPANY,
Defendants - Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
This court must examine the basis of its jurisdiction, on its own motion
if necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000).
The parties purport to invoke this court’s jurisdiction under 28 U.S.C. § 1291,
under which the federal courts of appeals “have jurisdiction of appeals from all
final decisions of the district courts of the United States.” 28 U.S.C. § 1291. A
final decision requires the district court to either dispose of all parties and all
claims or otherwise expressly permit an appeal under Federal Rule of Civil
Procedure 54(b). DK Joint Venture 1 v. Weyand, 649 F.3d 310, 319 (5th Cir.
Case: 15-30775 Document: 00513559512 Page: 2 Date Filed: 06/22/2016
No. 15-30775
2011). The order from which Plaintiffs Trevor and Jennifer Charles appealed
did not dispose of all parties (nor did it reference Rule 54(b) in form or
substance). Plaintiffs allege they were injured in a vehicle collision with
Thomas Lee Atkinson who was an employee of Consolidated Fabrications
Construction, Inc. (“CFC”). The district court granted summary judgment in
favor of Defendants CFC and its insurer, Amerisure Insurance Company
(“Amerisure”). Atkinson, however, remains in the litigation.
“[T]he failure to dispose of unserved, nonappearing defendants does not
prevent a judgment from being final and appealable.” Fed. Sav. & Loan Ins.
Corp. v. Tullos-Pierremont, 894 F.2d 1469, 1471 (5th Cir. 1990). In concluding
that a party named in the litigation is not a party for purposes of appellate
jurisdiction, we have required both non-service and non-appearance. In other
words, absent Rule 54(b) certification, either service or appearance by a named
party will defeat appellate jurisdiction under § 1291 if the claims involving that
party are not addressed in the final judgment or prior order. See, e.g., Nagle
v. Lee, 807 F.2d 435, 438 (5th Cir. 1987) (“[S]ince no service was obtained on
ABC, nor did it make an appearance in the district court, ABC never became a
party.” (emphasis added)); Fed. Sav., 894 F.2d at 1473 (“The status of all
remaining defendants as unserved and nonappearing is dispositive of this
issue. They are not parties.” (emphasis added)); Ramirez v. Isgur, 544 F. App’x
532, 533 n.1 (5th Cir. 2013) (“Heriberto Medrano does not appear to have been
served and never made an appearance. . . . We thus conclude that the
September 19 orders were final for purposes of appeal.” (emphasis added)); see
also Bristol v. Fibreboard Corp., 789 F.2d 846, 847 (10th Cir. 1986); Leonhard
v. United States, 633 F.2d 599, 608–09 (2d Cir. 1980)). Accordingly, although
Atkinson has never appeared in this litigation, if he has been served, this court
would lack jurisdiction under §1291.
2
Case: 15-30775 Document: 00513559512 Page: 3 Date Filed: 06/22/2016
No. 15-30775
It is unclear from the record before us whether Atkinson was ever served.
The Charleses submitted a number of documents as evidence that Atkinson
was properly served, and in their briefing to this court, they insist that
Atkinson was served under the Louisiana long-arm statute. But while the
district court docket indicates that four Proof of Service forms were “Returned
Executed” on June 11, 2015, the docket also notes that a new summons was
issued for Atkinson on July 15, 2015. Finally, while the district court’s opinion
granting summary judgment stated that “the Charleses have yet to locate
Atkinson so that they can serve him,” in its order on the motion for
reconsideration, it stated “[t]he claims against Atkinson remain and a pretrial
conference will be set accordingly.”
In light of the confusion in the record, we REMAND this case to the
district court for the limited purpose of determining whether Atkinson has
been served and entering an order stating its findings and conclusions as to
service. The case should then be returned to this panel for determination.
LIMITED REMAND.
3