Carolyn Dawson v. The Bank of New York Mellon, et

Case: 18-20657 Document: 00514904508 Page: 1 Date Filed: 04/05/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 18-20657 April 5, 2019
Lyle W. Cayce
CAROLYN R. DAWSON, Clerk
Plaintiff - Appellant
v.
THE BANK OF NEW YORK MELLON, formerly doing business as The Bank
of New York, as Trustee for the Benefit of the Certificate Holders of the
CWABS, Inc., Asset Backed Certificates, Series 2006-SD1; SHELLPOINT
MORTGAGE, L.L.C.,
Defendants - Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-2846
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Carolyn Dawson filed suit challenging Defendants’ foreclosure of her
property, in violation of a March 5, 2014 district court dismissal and preclusion
order prohibiting her from filing further actions regarding the property.
Dawson sought leave to amend her complaint, which the court denied in a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 18-20657
management order on September 13, 2018. On September 24, 2018, Dawson
filed a notice of appeal from this management order. Dawson additionally
moves this court for an emergency stay of the district court’s order to vacate
the property.
“Federal appellate courts have jurisdiction over appeals only from (1) a
final decision under 28 U.S.C. § 1291; (2) a decision that is deemed final due to
jurisprudential exception or that has been properly certified as final pursuant
to Fed. R. Civ. P. 54(b); and (3) interlocutory orders that fall into specific
classes, 28 U.S.C. § 1292(a), or that have been properly certified for appeal by
the district court, 28 U.S.C. § 1292(b).” Askanase v. Livingwell, Inc., 981 F.2d
807, 809-10 (5th Cir. 1993).
The September 13, 2018 management order denying Dawson’s motion to
amend her complaint is not a final judgment, an interlocutory order appealable
under § 1292(a), nor was it certified as final under Rule 54(b) or § 1292(b). See
28 U.S.C. §§ 1291, 1292; FED. R. CIV. P. 54(b); see also Wells v. S. Main Bank,
532 F.2d 1005, 1006 (5th Cir. 1976) (“Denial of leave to amend pleadings is
ordinarily not final for purposes of appeal.”). Dawson contends that the court
can review the management order under the collateral order doctrine, which
allows the appeal of certain other interlocutory matters under § 1291. To be
appealable under the collateral order doctrine, an “order must (1) conclusively
determine the disputed question, (2) resolve an important issue completely
separate from the merits of the action, and (3) be effectively unreviewable on
appeal from a final judgment.” Henry v. Lake Charles Am. Press, L.L.C., 566
F.3d 164, 171 (5th Cir. 2009) (quoting Coopers & Lybrand v. Livesay, 437 U.S.
463, 468 (1978)). Contrary to Dawson’s argument, the collateral order doctrine
does not permit appeal of a management order denying a motion to amend a
complaint because such an order is reviewable by this court following a final
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No. 18-20657
judgment. See Pan E. Exploration Co. v. Hufo Oils, 798 F.2d 837, 840 (5th Cir.
1986) (“[T]he major characteristic of collateral orders [is] that unless it can be
reviewed before the proceedings terminate, it can never be reviewed at all.”)
(internal quotation marks omitted); see also Johnson v. Crown Enterprises Inc.,
178 F. App’x 393, 394 (5th Cir. 2006) (stating that orders granting or denying
motions to add parties are not appealable under the collateral order doctrine).
Accordingly, we are without jurisdiction to review the district court’s denial of
Dawson’s motion to amend her complaint. See Askanase, 981 F.2d at 809-10.
The Federal Rules of Appellate Procedure state that a “notice of
appeal . . . must designate the judgment, order, or part thereof appealed from.”
FED. R. APP. P. 3(c). Dawson’s notice of appeal designates only the September
13, 2018 management order. We are therefore deprived of appellate
jurisdiction to consider any other orders Dawson discusses in her brief. See
Trust Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th Cir. 1997) (“[W]here a
party designates in the notice of appeal particular orders only (and not the
final judgment), we are without jurisdiction to hear challenges to other rulings
or orders not specified in the notice of appeal.”).
Dawson’s appeal is DISMISSED for lack of jurisdiction. Accordingly,
because there is no appeal pending, her motion for stay is DENIED. See In re
Barrier, 776 F.2d 1298, 1299 (5th Cir. 1985) (providing that Federal Rule of
Appellate Procedure 8(a) “only authorizes stays pending appeals to this court”).
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