Riley v. Wooten ( 1993 )


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  •                    UNITED STATES COURT OF APPEALS
    For the Fifth Circuit
    No. 91-3916
    JAY H. RILEY,,
    Plaintiff-Appellant,
    versus
    ERNEST WOOTEN, Individually and in his
    capacity as Sheriff of Plaquemines Parish, Et Al.,
    Defendants,
    ERNEST WOOTEN, Etc., and
    PLAQUEMINES PARISH COUNCIL,
    Defendants-Appellees.
    Appeals from the United States District Court
    for the Eastern District of Louisiana
    (August 18, 1993)
    Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
    DeMoss, Circuit Judge:
    I.    FACTS AND PROCEDURAL HISTORY
    On June 18, 1989, Plaquemines Parish Sheriff's deputies and a
    representative of the Louisiana Office of Alcohol and Beverage
    Control entered Jay Riley's business, the J.U. Lounge, and removed
    his state and parish alcohol permits and other permits and licenses
    necessary for him to operate, which effectively closed down his
    business.    In his federal suit, Riley alleges that such actions
    were unlawful because the Council and sheriff closed his business
    and suspended his licenses without prior notice or an opportunity
    for a hearing violating his right to procedural due process.
    1
    Because of those allegedly unlawful actions, Riley claims that the
    Council and Sheriff damaged his business.
    On August 24, 1989, Riley filed a petition for damages, writ
    of mandamus, and temporary restraining order in Louisiana state
    court    against   Ernest   Wooten,       in    his     capacity       as    Sheriff    of
    Plaquemines Parish; Luke Petrovich, in his capacity as President of
    Plaquemines    Parish;      Larry    Dickenson,             in   his        capacity     as
    Commissioner of the Office of Alcohol and Beverage Control; and the
    State of Louisiana.
    The next week, Luke Petrovich filed a petition for revocation
    and/or suspension of Riley's liquor permit and occupational license
    with the Plaquemines Parish Council (the Council) alleging that
    Riley served alcohol to intoxicated persons, operated a disorderly
    house,    violated   Plaquemines      Parish         building      codes,      and     that
    representatives of Riley possessed and sold drugs on the premises.
    At a public hearing on September 28, 1989, the Council adopted
    Resolution    Numbers    89-334     and       89-335,    which     revoked       Riley's
    Plaquemines    Parish     occupational          license      and    liquor       permit.
    Meanwhile,    in   the   state    court       suit    the    defendants        filed    an
    exception of prematurity, which the court granted on September 1,
    1989. Riley appealed the trial court's ruling. On appeal, because
    the Council had conducted a hearing and revoked Riley's permit and
    license, the Louisiana appellate court sustained the dismissal of
    Riley's case as moot as far as he was seeking the return of his
    license and permit.
    On October 16, 1989, Riley filed a motion and order for
    devolutive appeal in Louisiana state court challenging the decision
    of the Council to revoke his permits.                 The Louisiana trial court
    2
    dismissed the suit since Riley had not timely brought it under
    Louisiana law, which required an aggrieved party to appeal the
    suspension of their permits within 10 days of being notified of the
    suspension.            See La. R.S. 33:4788.
    Not      to      be     deterred,           Riley       again        sued       Sheriff         Wooten,
    Petrovich, and the Council in the United States District Court for
    the Eastern District of Louisiana (USDC) asserting that they
    violated his right to procedural due process.1                                        Petrovich filed a
    motion for summary judgment based on absolute immunity, which was
    unopposed, and the USDC granted the motion. The Council then filed
    a motion to dismiss on the ground of res judicata, and on October
    8, 1991, the USDC granted the motion.                                 Riley appealed the October
    8 dismissal on October 25.                          Thereafter, on December 2, the USDC
    dismissed Sheriff Wooten on the ground of res judicata.                                                    Riley
    appealed the December 2 dismissal on January 6.
    II. DISCUSSION
    1.      Appellate Jurisdiction
    The Council contends when Riley appealed the order dismissing
    his claim against it, this Court did not have jurisdiction because
    the      order        was     interlocutory              and      there        was      no     Rule       54(b)2
    certification.                That is so, because when the USDC dismissed the
    Council, it had not adjudicated Riley's claim against Sheriff
    Wooten and; therefore, there was not a final judgment.                                              After the
    1
    We have subject matter jurisdiction of this appeal pursuant to 28 U.S.C. § 1331, which states "[t]he district
    courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the
    United States."
    2
    Fed. R. Civ. P. 54(b) states "[w]hen more than one claim for relief is presented in an action, whether as a
    claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct
    the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express
    determination that there is no just reason for delay and upon an express direction for the entry of judgment."
    3
    USDC dismissed Sheriff Wooten, Riley appealed the order as to
    Sheriff Wooten, but did not appeal the order relating to the
    Council.   Therefore, according to the Council, this Court has no
    appellate jurisdiction over it.
    In a multi-party suit, a court's order is final only if it
    meets one of two conditions: (1) it must adjudicate all the claims
    of all the parties, or (2) the court must expressly determine there
    is no just reason for delay and direct an entry of judgment under
    Rule 54(b).   Jetco Electronic Industries, Inc., v. Gardiner, 
    473 F.2d 1228
    , 1231 (5th Cir. 1973).
    To support its contention that we do not have appellate
    jurisdiction over it, the Council directs us to the cases of
    Kirtland v. J. Ray McDermott & Co., 
    568 F.2d 1166
    (5th Cir. 1978)
    and United States v. Taylor, 
    632 F.2d 530
    (5th Cir. 1980).        In
    Kirtland, the plaintiff sued his employer, McDermott, under the
    Jones Act and general maritime law.     Kirtland, at 1168.   Later he
    sued an additional defendant, Columbia Gulf Transmission Company.
    
    Id. The trial
    court then granted a summary judgment to Columbia
    and the plaintiff appealed.    
    Id. One day
    after the appeal was
    docketed, the trial court entered a Rule 54(b) order stating there
    was no just reason for delaying an entry of final judgment.       
    Id. On appeal,
    this court dismissed the appeal holding that when "more
    than one claim for relief is presented in an action, an express
    determination pursuant to Rule 54(b) is required as a prerequisite
    to an appeal from an order disposing of fewer than all the claims."
    
    Id. In Taylor
    , the defendant appealed the trial court's denial of
    his motion to join and the dismissal of his counter-claim.    Taylor,
    4
    at 530. After the defendants appealed, the plaintiff dismissed the
    case, which ended the litigation.                      
    Id. at 531.
           On appeal, this
    court   refused      to    exercise       its       jurisdiction     holding      that   the
    defendant's failure to appeal from the final judgment making the
    joinder   denial      and    the        counter-claim          dismissal    a    final    and
    appealable decision deprived the court of jurisdiction.                           
    Id. The court
    also held the final judgment did not retroactively validate
    the premature notice of appeal.                     
    Id. To refute
    the Council's contention, Riley relies on the Rule
    first announced in Jetco Electric Industries, Inc., v. Gardiner,
    
    473 F.2d 1228
        (5th    Cir.        1973).          In   Jetco,     the    plaintiffs
    prematurely    appealed       an        order       dismissing     only    one    of    three
    defendants.    
    Id. at 1231.
                Several months later, the trial court
    entered an agreed judgment disposing of the claims against the two
    remaining defendants.             
    Id. On appeal,
    while recognizing that the
    appeal met neither the requirements of Rule 54(b) nor a final
    judgment,     this        court     nevertheless           concluded       that    it    had
    jurisdiction to consider the premature appeal.                       
    Id. at 1231.
            The
    court stated the "two orders, considered together, terminated this
    litigation just as effectively as would have been the case had the
    district judge gone through the motions of entering a single order
    formally reciting the substance of the earlier two orders."                              Id.;
    See also Alcorn County, Miss. v. U.S. Interstate Supplies Inc., 
    731 F.2d 1160
    , 1166 (5th Cir. 1984) (interpreting Jetco) ("[W]e may
    consider a premature appeal in those cases where judgment becomes
    final prior to disposition of the appeal.").
    This court has followed the Jetco rule in many decisions.
    See, Levron v. Gulf Intern. Marine, Inc., 
    854 F.2d 777
    , 779-80 (5th
    5
    Cir. 1988); Crowley Maritime Corp., v. Panama Canal Comm., 
    849 F.2d 951
    , 953      (5th    Cir.      1988);   Alcom   Electric    Exchange,   Inc.,   v.
    Burgess, 
    849 F.2d 964
    , 966-69 (5th Cir. 1988) (expressly rejecting
    Taylor); Sandidge v. Salen Offshore Drilling Co., 
    764 F.2d 252
    , 255
    (5th Cir. 1985); Tower v. Moss, 
    625 F.2d 1161
    , 1164-65 (5th Cir.
    1980).   More recently, this court reaffirmed the efficacy of the
    Jetco Rule in Simmons v. Willcox, 
    911 F.2d 1077
    , 1080 (5th Cir.
    1990).   In Simmons, the trial court granted summary judgment to
    four of six defendants, thus leaving two defendants remaining in
    the   case.          
    Id. at 1080.
         Without   seeking     a   Rule   54(b)
    certification, the plaintiff appealed.              
    Id. After that,
    the trial
    court dismissed the remaining two defendants and the plaintiff
    filed a second appeal.              This court held that it had appellate
    jurisdiction over all of the defendants in that the defect in the
    initial appeal was cured by the later dismissal of the remaining
    defendants, which ended the litigation before the disposition of
    the appeal.     
    Id. In our
    view, the Jetco Rule controls the present case and we
    should exercise jurisdiction over this appeal.                  Similar to Jetco
    and Simmons, here, the defect in Riley's original appeal was cured
    by the trial court's subsequent dismissal of Sheriff Wooten from
    the case before we disposed of the appeal.                The cases relied upon
    by the Council, Kirtland and Taylor, are distinguishable.                        In
    Kirtland, the original premature notice of appeal was not cured by
    a later dismissal of the remaining defendant before the court
    disposed of the appeal, and in Taylor the litigation was ended by
    the plaintiff's voluntary dismissal of the case. To the extent the
    opinions in Kirtland and Taylor conflict with the opinion in Jetco,
    6
    we hold that Jetco controls as this Circuit has applied it more
    prevalently and for a longer period.
    2.     Res Judicata
    We must first decide whether the state or federal rules of
    claim preclusion apply. In University of Tennessee v. Elliott, 
    478 U.S. 788
    , 799 (1986), the Supreme Court held that federal courts
    apply state rules of issue preclusion after a state administrative
    adjudication.              Since this case involves the preclusive effect to
    give the Council's administrative adjudication, Louisiana's res
    judicata law governs this appeal.
    Both parties agree that under Louisiana law once the time to
    appeal an administrative ruling has run, the ruling becomes final
    and has res judicata effect.                       See, Robinson v. City of Baton Rouge,
    
    566 So. 2d 415
    (La. App. 1st Cir. 1990);                                  La. R.S. 33:4788.3                  What
    the parties disagree on is the scope of the preclusive effect to be
    given to Riley's failure to appeal timely the Council's ruling.
    Louisiana Revised Statute Annotated 13:4231 determines the scope of
    the preclusive effect of a prior suit.                                  For a former judgment to
    bar a subsequent suit on the ground of res judicata, the statute
    required that:
    [t]he thing demanded must be the same; the demand must be
    founded on the same cause of action; the demand must be
    3
    La. R.S. 33:4788 states:
    [t]he holder of the permit who is aggrieved by a decision of the governing body of the
    municipallity or parish or a municipal alcoholic beverage control board to suspend or revoke
    his permit, may within ten days of the notification of the decision take a devolutive appeal to
    the district court having jurisdiction of his place of business and on such appeal the trial shall
    be do novo . . . .
    La. R.S. 33:4788.
    7
    between the same parties, and formed by them against each
    other in the same quality.4
    La. R.S. 13:4231.
    Riley contends that the state suit challenging the Council's
    ruling does not preclude him on the ground of res judicata from
    bringing the present suit, because neither the state suit nor the
    Council hearing addressed the same relief or the same cause of
    action, the propriety of and damages flowing from the initial
    closing of his business on June 18, which he now pursues in the
    present suit. To support his contention that the present action is
    not barred by res judicata, Riley relies on the Fifth Circuit case
    of Frazier v. King, 
    873 F.2d 820
    , 824 (5th Cir.), cert. denied, 
    493 U.S. 977
    (1989).5
    In Frazier,6 the plaintiff, after obtaining a favorable ruling
    in a Louisiana Civil Service Commission (LCSC) hearing, sued in
    federal court for damages alleging that her employer violated her
    constitutional rights under the First and Fourteenth amendments and
    committed several state law torts.                                 In response, the defendants
    answered, and the trial court agreed, that the LCSC adjudication
    4
    Sheriff Wooten points out the Louisiana Legislature has recently amended La. R.S. 13:4231, so that it now
    adopts the broader common law theory of res judicata which is based on a transactional or occurrence test. The
    comments to the recent amendments to the legislation succinctly state "R.S. 13:4231 makes a substantial change
    in the law. Under the present law a second action would be barred by the defense of res judicata only when the
    plaintiff seeks the same relief based on the same cause or grounds. This interpretation of res judicata is too
    narrow to fully implement the purpose of res judicata which is to foster judicial efficiency and also to protect the
    defendant from multiple lawsuits. . . ." Under the new La. R.S. 13:4231, Wooten contends Riley's federal suit
    would be barred. What Wooten omits is that the comments to the Act specifically state that "the preclusive effect
    and authority of a judgment rendered in an action filed before the effective date of this Act, shall be determined
    by the law in effect prior to January 1, 1991."
    5
    See also Cantrelle Fence & Supply Co., Inc. v. Allstate Ins. Co., 
    515 So. 2d 1074
    (La. 1987), which
    recognizes that the common law rule allowing preclusive effect to be given to all matters that might have been
    pled or raised is inapplicable in Louisiana.
    6
    In Frazier, the court did not decide whether state or federal rules of claim preclusion apply after a state
    agency, rather than a state administrative, adjudication. Under either the federal or state rule of claim preclusion,
    the court held that the plaintiff's federal claims were not barred.
    8
    barred the federal claims on the ground of res judicata.                           On
    appeal, this Court reversed, holding that the "thing" demanded by
    the plaintiff in the agency hearing, reinstatement with back pay,
    differed from the relief she sought in federal court, money damages
    and attorney's fees, and; indeed, could not have been granted in
    the   agency    hearing.      In   the   present      case,    Riley   argues     the
    administrative hearing conducted by the Council did not decide the
    propriety of or the damages resulting from the initial closing of
    his   business,    and,     therefore,   did    not    adjudicate      his   rights
    regarding the initial June 18 closing.             Riley contends, just as in
    Frazier, neither the "thing" demanded by him nor the present cause
    of action was adjudicated by the Council or the state court, and
    consequently Louisiana's law of res judicata does not bar the
    present suit.
    The    Council      contends   that      Riley's    argument      that      its
    administrative hearing did not have as its focus the initial
    closing of his business, and, therefore, did not adjudicate his
    procedural due process rights regarding the initial closing misses
    the point.      According to the Council, whether its administrative
    hearing addressed the initial closing of his business is not
    essential to the core of its res judicata argument.                    Rather, the
    Council contends that its administrative ruling revoking Riley's
    permits is final and acts as res judicata on the issue of the
    revocation of the permits in that Riley failed to appeal timely its
    ruling.        Therefore,    the   Council     contends       the   issue    of   the
    revocation of the permits is final, and consequently any claim for
    damages by Riley resulting from the revocation of those permits is
    barred, even his claim for damages resulting from the initial
    9
    closing of his business.    If Louisiana did not take such a narrow
    view of res judicata, the Council's argument might carry the day.
    The Council contends that Myers v. City of Lafayette, 
    537 So. 2d
    1269, 1275 (La. App. 3rd Cir. 1989) supports its argument that
    because Riley failed to appeal the administrative ruling, he has no
    claim for damages resulting from the closing of his business in any
    regard.   In Myers, the court held that the plaintiff's failure to
    appeal timely the Louisiana Office of Alcoholic Beverage Control's
    denial of her alcohol beverage permits to the court as the statute
    required, made the decision of the state and the city not to issue
    the permits final and binding on all of the parties.       Further, the
    court stated "[s]ince plaintiff had no legal right to compel the
    issuance of permits or to even now challenge the non-issuance of
    the permits she has no cause of action for damages resulting from
    the non-issuance of the permits."          
    Id. at 1275.
       In sum, the
    Council   contends   Riley's     failure     to   appeal   timely   its
    administrative ruling revoking his permits bars him from now
    bringing a procedural due process claim for the initial closing of
    his business.
    The Council's argument relying on Myers is unpersuasive,
    however, because Myers involved neither the revocation of an issued
    permit nor the closing of an ongoing business, but the denial of an
    application for a permit.      In Myers, therefore the issue of the
    propriety of the closing of the plaintiff's business, initial or
    otherwise, was not before the court.        Consequently, we conclude
    that the holding in Myers does not foreclose Riley from bringing
    his procedural due process claim in the present case.        Moreover,
    our conclusion is buttressed by the Louisiana Supreme Court case of
    10
    Paillot v. Wooton, 
    559 So. 2d 758
    (La. 1990), in which the court
    struck down the Council ordinances7 in issue on this appeal.
    In Paillot, the plaintiff, Paillot, sued seeking damages and
    an order enjoining the Council from suspending her permits on the
    ground of due process, after the sheriff and the Council shut down
    her bar without prior notice or a hearing.                                      The Louisiana trial
    court issued a preliminary injunction ordering the Council to
    return all of Paillot's permits, pending a hearing.                                               After the
    court issued the injunction, the Council conducted a hearing and
    suspended Paillot's permits.                           On appeal, the Louisiana Supreme
    Court held the Plaquemine's ordinances allowing the revocation of
    Paillot's permits and the closing of her business without prior
    notice and a hearing violated her right to procedural due process.
    In so holding, the court rejected the Council's argument that the
    administrative              hearing         after       the      initial         closing         cured       the
    illegality of the initial closing. In rejecting that argument, the
    court stated:
    [b]ecause in this case the license and permits were again
    suspended when a hearing was finally held by the council
    almost a month after the initial government action, there
    is reason to believe plaintiff may have committed
    violations which justified suspension of the permits.
    However ``to one who protests against the taking of his
    7
    Plaquemines Parish Ordinance 4-14 provided:
    [i]f any disturbance of the peace, public nuisance or other violation of state law or this chapter is committed on
    said premises [businesses licensed to sell alcoholic beverages], the president of the council with the approval of
    the commissioner of finance or the sheriff, is hereby authorized to suspend or revoke said permit [to sell liquor
    or beer] . . . In case of such suspension or revocation, permittee may appeal to the council for a hearing, to
    remove or recall the suspension or revocation, pending which hearing no liquor or beer shall be sold by permittee
    ....
    Plaquemines Parish Ordinance 14-26 provided:
    if any violation of Louisiana law or parish ordinance is committed on said [licensed] premise, the council, through
    its president, with recommendations from the director of administration or the sheriff, may suspend or revoke the
    occupational license to continue to conduct such business . . . .
    11
    property without due process of law, it is no answer to
    say that in his particular case due process of law would
    have led to the same result because he had no adequate
    defense on the merits.'
    
    Id. at 762
    (quoting Wilson v. City of New Orleans, 
    479 So. 2d 891
    ,
    894 (La. 1985)).
    We   are     obligated      to    follow     the   Louisiana    courts'
    interpretation of its law regarding res judicata. In our view, the
    Louisiana Supreme Court would not bar Riley from suing the Council
    or Sheriff Wooten on the ground of res judicata for the initial
    closing   of    his   business   although   the     Council   held   a   later
    administrative hearing, which Riley lost.
    In sum, the Council hearing did not address the propriety of
    the initial closing of Riley's business or whether Riley suffered
    any damages because of the closing.                That fact, coupled with
    Louisiana's narrow view of res judicata supports our holding that
    the USDC erred in granting summary judgment to the Council and
    Sheriff Wooten.
    III.    CONCLUSION
    For the foregoing reasons, the judgment of the district court
    is REVERSED and the case is REMANDED.
    12