Judd vs. The University, (5th Cir. 1997)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 97-50242 Conference Calendar KEITH JUDD, Plaintiff-Appellant, versus THE UNIVERSITY OF NEW MEXICO; ALBUQUERQUE POLICE DEP'T; C. LEROY HANSEN, U.S. District Judge for the District of New Mexico, Albuquerque Division; LORENZO GARCIA, U.S. District Judge for the District of New Mexico, Albuquerque Division; W.W. DEATON, U.S. Magistrate Judge for the District of New Mexico, Albuquerque Division, Defendants-Appellees. Appeal from the United States District Court for the Western District of Texas USDC No. MO-96-CV-122 December 9, 1997 Before BARKSDALE, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM: * We must examine the basis of our jurisdiction on our own motion if necessary. Mosley v. Cozby , 813 F.2d 659, 660 (5th Cir. 1987). When an action involves multiple parties or multiple claims, any decision that adjudicates the liability of fewer than all the parties or disposes of fewer than all the claims does not terminate the litigation and is therefore not appealable unless certified under F ED . R. C IV .
P. 54(b). See Thompson v. Betts , 754 F.2d 1243, 1245 (5th Cir. 1985); Borne v. A & P Boat Rentals No. 4, Inc. , 755 F.2d 1131, 1133 (5th Cir. 1985). The district court did not certify the order of dismissal of the federal judges for appeal; and the order does not independently, or together with related parts of the record, reflect the district court's clear intent to enter a judgment under Rule 54(b). See Kelly v. LeeÂ’s Old Fashioned Hamburgers, Inc. , 908 F.2d 1218, 1219-20 (5th Cir. 1990) (en banc).
In addition, contrary to Judd's contentions, the "collateral order" exception to 28 U.S.C. § 1291 is inapplicable. The order dismissing the judges "is not collateral to merits, but rather determines merits defenses, and it would be fully and effectively reviewable on appeal if and when a final judgment is rendered . . . ." Exxon Corp. v. Oxxford Clothes, Inc ., 109 F.3d 1069, 1070 n.2 (5th Cir. 1997). Accordingly, we are without jurisdiction.
This appeal is frivolous, and it is a continuation of Judd's pattern of frivolous filings. The appeal is DISMISSED. See Howard v. King , 707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR .
R. 42.2. We caution Judd that any additional frivolous appeals filed by him or on his behalf will invite the imposition of sanctions. To avoid sanctions, Judd is further cautioned to review any pending appeals to ensure that they do not raise arguments that are frivolous.
APPEAL DISMISSED; SANCTION WARNING ISSUED.
No. 97-50242
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This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1291 - Sec. 1291. Final decisions of district courts
- U.S. Court of Appeals for the Fifth Circuit - Exxon Corporation, Plaintiff-Appellee, v. Oxxford Clothes, Inc., and Oxxford Clothes Xx, Inc., Defendants-Appellants., 109 F.3d 1069 (5th Cir. 1997)
- U.S. Court of Appeals for the Fifth Circuit - Clinton C. Howard, Jr., and Michael Chapman and Kenneth Robinson, Plaintiffs-Appellants, v. John T. King, Secretary, Department of Corrections, and Ross Maggio, Jr., Warden, Louisiana State Penitentiary, Defendants-Appellees., 707 F.2d 215 (5th Cir. 1983)
- U.S. Court of Appeals for the Fifth Circuit - Marion Ray Mosley, Plaintiff-Appellant, v. Officer M.D. Cozby, Et Al., Defendants-Appellees., 813 F.2d 659 (5th Cir. 1987)
- U.S. Court of Appeals for the Fifth Circuit - Wendolyn A. Kelly, Plaintiff-Appellant, v. Lee'S Old Fashioned Hamburgers, Inc. (Lee'S Old Fashioned Hamburgers of New Orleans, Inc.), Defendant, State Farm Fire & Casualty Company, Defendant-Appellee., 908 F.2d 1218 (5th Cir. 1990)
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