Salinas v. Univ of TX Pan Amer ( 2001 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 00-41231
(Summary Calendar)
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OSCAR SALINAS,
Plaintiff - Appellant,
versus
UNIVERSITY OF TEXAS - PAN AMERICAN; WILL DAVIS, In
his individual and official capacity; CHRISTOPER MUNN, In his
individual and official capacity; LEE HAMILTON, Dr, In his
individual and official capacity; TIM KIKOS, In his individual and
official capacity; ADELLE MERY, In her individual and official
capacity; CATHI PIPKIN, In her individual and official capacity;
ELSA SAETA, In her individual and official capacity; KAREN JO
TAYLOR, In her individual and official capacity; RICHARD
HYSLIN, In his individual and official capacity; DOUG CUMMINS,
In his individual and official capacity; PAMELA MCCURDY, In her
individual and official capacity; RAY MCKINLEY WELCH, In his
individual and official capacity; SYLVIA DOMINGUEZ, In her
individual and official capacity; GLORIA LIND, In her individual and
official capacity; NORMA PEREZ; MIGUEL NEVAREZ, In his
individual and official capacity; RUDOLPH GOMEZ, Dr, In his
individual and official capacity,
Defendants - Appellees.
Appeal from the United States District Court
For the Southern District of Texas
Dist. Ct. No. M-99-CV-197
July 18, 2001
Before EMILIO M. GARZA, STEWART and PARKER, Circuit Judges.
PER CURIAM*:
Oscar Salinas (“Salinas”) filed suit against the University of Texas-Pan American (“UT-PA”)
and numerous individuals, most of whom he sued both in their individual and official capacities.1 His
claims against the defendants arise out of what Salinas alleges was his wrongful termination as a
lecturer at UT-PA. The defendants filed a motion to dismiss. The district court granted that motion
in part, finding that Salinas’s claims against UT-PA and the individual defendants in their official
capacities were barred by the Eleventh Amendment. The district court also dismissed Salinas’s 28
U.S.C. § 1983 claim for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The district
court denied the defendants’ motion to dismiss as to the remaining claims brought against the
individuals defendants qua individuals. Salinas appeals from the district court’s partial grant of the
defendants’ motion to dismiss.
We have jurisdiction over appeals from “final decisions by the district courts.” 28 U.S.C. §
1291. Where an action involves multiple claims and/or multiple parties, as is the case here, an order
dismissing some of the defendants and/or some of the claims is only final where the district court has
made “an express determination that there is no just reason for delay and [] an express direction for
*
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
Specifically, Salinas named the following persons as defendants individually and in
their official capacities: Will Davis, Christopher Munn, Dr. Lee Hamilton, Tim Kikos, Adelle Mery,
Cathi Pipkin, Elsa Saeta, Karen Jo Taylor, Richard Hyslin, Doug Cummins, Pamela McCurdy, Ray
McKinley Welch, Sylvia Dominguez, Gloria Lind, Miguel Nevarex, Dr. Rudolph Gomez. All of these
defendants are or were at times relevant to the lawsuit employees of the UT-PA. These defendants
together with the UT-PA are hereinafter collectively referred to as the defendants. Additionally,
Salinas brought suit against Norma Perez, the former manager of the apartment complex where
Salinas resided. This appeal does not concern Salinas’s causes of action against Perez.
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the entry of judgment.” Fed. R. Civ. P. 54(b). Here, the district court dismissed a single cause of
action and certain defendants, but left intact a number of Salinas’s claims against other defendants.
The district court did not enter an express determination that there was “no just reason for delay” nor
did it direct the entry of final judgment. In the absence of the requisite Rule 54(b) determination and
direction, and because we find that no other except ions to the final judgment rule are present, we
conclude that we are without jurisdiction over this appeal. See Borne v. A&P Boat Rentals No. 4,
Inc., 755 F.2d 1131, 1133 (5th Cir. 1985) (where the district court does not certify judgment “on
fewer than all of the claims asserted,” that judgment may not be appealed “absent a recognized
exception to . . . § 1291.”); Bondeloche v. TNEMEC Co., 693 F.2d 546, 547 (5th Cir. 1982) (“Any
appeal fro m a decision adjudicating a portion of a case that is not accompanied by a Rule 54(b)
certificate must be dismissed for want of jurisdiction.”); see also Thompson v. Betts, 754 F.2d 1243,
1246 (5th Cir. 1985) (grant of dismissal based on finding of immunity does not fall within exception
to final judgment rule); Eudy v. Motor-Guide, Hersheded Hall Clock Co., 604 F.2d 17, 18 (5th Cir.
1979) (no appellate jurisdiction where district court dismissed one claim in multiple claim action).
Accordingly, we DISMISS Salinas’s appeal for lack jurisdiction.
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