Patrick Turner v. Murphy Oil Usa, Inc., Et , 442 F. App'x 117 ( 2011 )

Case: 10-30231 Document: 00511609164 Page: 1 Date Filed: 09/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 21, 2011
No. 10-30231 Lyle W. Cayce
Clerk
PATRICK JOSEPH TURNER; ET AL.,
Plaintiffs
v.
MURPHY OIL USA, INC.,
Defendant
v.
DANIEL E. BECNEL, JR.; ROBERT BECNEL,
Movants–Appellants
v.
SIDNEY DONECIO TORRES, III; HUGH PALMER LAMBERT; GILBERT
V. ANDRY, III; GILBERT V. ANDRY, IV; JERALD N. ANDRY, JR.;
WILLIAM ELDREN BRADLEY; JOSEPH M. BRUNO; ANTHONY D.
IRPINO; MICKEY P. LANDRY; MICHAEL G. STAG; CULLEN ADAIR
TONRY; PETER MARION MEISNER; J. WAYNE MUMPHREY; L. ERIC
WILLIAMS, JR.,
Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-4206
Case: 10-30231 Document: 00511609164 Page: 2 Date Filed: 09/21/2011
No. 10-30231
Before JOLLY, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
The appellants, Daniel and Robert Becnel, are plaintiffs’ counsel for
several dozen plaintiffs (out of approximately 2,500 in total) in the underlying
consolidated litigation. The Becnels appeal the district court’s apportionment
of attorneys’ fees among the plaintiffs’ attorneys. They argue that the district
court abused its discretion by failing to consider the factors prescribed in
Johnson v. Georgia Highway Express, 488 F.2d 713, 717–19 (5th Cir. 1974). See
In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006,
1021 (5th Cir. 1977) (holding that a district court presiding over a non-class,
consolidated lawsuit must consider the Johnson factors when exercising its
inherent equitable power to apportion attorneys’ fees from a fund created by
the litigation).
At oral argument, however, the Becnels conceded that we do not have
jurisdiction over this appeal. We agree. Under the fee-apportionment plan
approved by the district court, the Becnels’ right to collect attorneys’ fees was
contingent on the settlement of their clients’ claims in the underlying litigation.
At the time of the filing of the notice of appeal, none of the Becnels’ clients’
claims had been formally settled, and the district court had not entered a final
judgment covering any of those claims. Accordingly, the notice of appeal was
premature. See Dandar v. Lafourche Realty Co., 849 F.2d 955, 957 (5th Cir.
1988) (“Denials and awards of attorney’s fees may be appealed separately as
final orders after a final determination of liability on the merits.” (emphasis
*
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.
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Case: 10-30231 Document: 00511609164 Page: 3 Date Filed: 09/21/2011
No. 10-30231
added)); Shipes v. Trinity Indus., Inc., 883 F.2d 339, 342 (5th Cir. 1989) (holding
that to be eligible for interlocutory appeal under the Cohen collateral-order
doctrine, an interim attorney-fee order must, inter alia, “resolve an important
issue completely separate from the merits of the action, and be effectively
unreviewable on appeal from a final judgment.” (citation omitted)).
Accordingly, IT IS ORDERED that the appeal is DISMISSED. IT IS
FURTHER ORDERED that the motion of appellee Sidney Donecio Torres, III to
dismiss is DENIED AS MOOT, the motion of appellee Sidney Donecio Torres, III
for costs is DENIED AS MOOT, and the motion of appellee Sidney Donecio
Torres, III for the award of attorneys’ fees is DENIED.
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