           UNITED STATES COURT OF APPEALS
                For the Fifth Circuit



                    No. 99-30035



     GEORGE ELDREDGE; JANIE ELDREDGE LANGUIRAND;
                 HARTWELL LANGUIRAND,

                                     Plaintiffs-Appellants,

                       VERSUS

           MARTIN MARIETTA CORP.; ET AL.,

                                                   Defendants,

LUHR BROTHERS, INC.; MARTIN MARIETTA MATERIALS, INC.,

                                      Defendants-Appellees.

  ************************************************


                    No. 99-30220



     GEORGE ELDREDGE; JANIE ELDREDGE LANGUIRAND;
                 HARTWELL LANGUIRAND,

                                     Plaintiffs-Appellants,

                       VERSUS

           MARTIN MARIETTA CORP.; ET AL.,

                                                   Defendants,

LUHR BROTHERS, INC.; MARTIN MARIETTA MATERIALS, INC.;
           DRAVO BASIC MATERIALS CO., INC.,

                                      Defendants-Appellees.




    Appeal from the United States District Court

                          1
                  For the Western District of Louisiana
                                    March 22, 2000


Before JOLLY and DeMOSS, Circuit Judges, and DOWD,* District Judge.

DeMOSS, Circuit Judge:

        George   Eldredge,       Janie    Eldredge    Languirand,      and   Hartwell

Languirand (collectively “Appellants”) appeal the district court’s

orders    granting       partial     summary    judgment     to     Martin   Marietta

Materials,       Inc.    (“Martin    Marietta”),      and    Luhr    Brothers,   Inc.

(“Luhr”), and granting summary judgment to Dravo Basic Materials,

Inc. (“Dravo”).         We affirm the grant of summary judgment to Dravo,

but find that the partial summary judgment order as to Martin

Marietta and Luhr was not a final judgment pursuant to Rule 54(b)

of the Federal Rules of Civil Procedure and, therefore, we dismiss

Appellants’       appeal    of     that    judgment    for    lack    of     appellate

jurisdiction.

                                           I.

        Appellants jointly own property located on the Vermilion River

in Louisiana.           They claim that various towboat companies sued

herein have trespassed on their land and damaged the trees and soil

on their property through repetitive use of the trees located on

the property for tying off barges in custody of towboats operated

by these companies.           According to the deposition testimony of

George Eldredge, he knew that barges were being tied off to the



    *
       District Judge of the Northern District of Ohio, sitting by
designation.

                                            2
land and that his father once complained to the local sheriff in

the mid-1960s about this practice.              The sheriff, however, took no

action, and towboat companies have continued to use the property in

this       manner   over   the   past   few    decades.        In   1993,   Hartwell

Languirand posted signs warning against trespassing, contacted the

Coast Guard to complain about the towboat companies, and also cut

and removed the ropes and cables that those companies had left on

the property.        The Coast Guard allegedly told Hartwell Languirand

that word would be passed around to the various towboat companies

regarding      Appellants’       displeasure    with   the     towboat   companies’

activities, but barges continued to be tied off to the property.

       On April 20, 1998, Appellants filed suit in Louisiana state

court seeking damages and permanent injunctive relief against

Martin Marietta, Luhr, Vulcan Materials (“Vulcan”), and Ingram

Barge Lines, Inc. (“Ingram”).1           Ingram removed the suit to federal

court based on diversity jurisdiction on May 15, 1998.                   Appellants

later added Dravo as a defendant.

       Based on the principle of liberative prescription, Martin

Marietta filed a motion for partial summary judgment, which Luhr

followed.       Despite opposition from Appellants, the district court

granted Martin Marietta’s and Luhr’s motions for partial summary

judgment.       Subsequent to this ruling, Dravo filed its own motion

for    summary      judgment      and   incorporated      by    reference    Martin

Marietta’s arguments.            That unopposed motion by Dravo was also

       1
       Appellants later accepted Vulcan’s and Ingram’s offers of
judgment pursuant to Rule 68 of the Federal Rules of Civil
Procedure.

                                          3
granted.     After Appellants filed separate notices of appeal, the

district court entered judgments pursuant to Rule 54(b).

                                        II.

      Before proceeding to the merits of Appellants’ appeal, we must

first consider whether the district court’s rulings were suitable

for     entry     as    final    judgments      under        Rule   54(b)   and   are,

consequently, appropriate for appellate review.                     Rule 54(b) allows

a   district      court   “[w]hen   more       than    one    claim   for   relief    is

presented in an action . . . [to] 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.”      Fed. R. Civ. P. 54(b).          It reflects a balancing of two

policies: avoiding the “danger of hardship or injustice through

delay     which    would    be    alleviated          by   immediate    appeal”      and

“avoid[ing] piecemeal appeals.”                PYCA Indus. v. Harrison County

Waste Water Management Dist., 81 F.3d 1412, 1421 (5th Cir. 1996).

      To enter a Rule 54(b) final judgment, the district court must

have disposed of “one or more . . . claims or parties.”2                      Fed. R.

Civ. P. 54(b).         That requirement is jurisdictional, is reviewed de

novo, and may be raised by this court even though the parties may


      2
        Furthermore, the district court must make “an express
determination that there is no just reason for delay.” Fed. R.
Civ. P. 54(b).    This requirement is not jurisdictional and is
reviewed for an abuse of discretion. See Samaad v. City of Dallas,
940 F.2d 925, 930 (5th Cir. 1991). Where, as here, the parties do
not challenge the propriety of the Rule 54(b) judgment, we do not
consider sua sponte the district court’s determination regarding
delay. See id.

                                           4
not have challenged it.         See Samaad v. City of Dallas, 940 F.2d

925, 930 (5th Cir. 1991).            Additionally, we must look to see

whether this requirement is met as to each party or claim.                   See,

e.g., In re Southeast Banking Corp., 69 F.3d 1539, 1548-52 (11th

Cir. 1995) (finding that a Rule 54(b) final judgment was improperly

entered as to certain rulings because they did not dispose of

distinct claims, but that it was properly entered as to certain

defendants who were completely dismissed).

     Because the district court dismissed with prejudice all claims

against Dravo, Dravo was no longer a party before that court and

the order granting summary judgment is properly on appeal pursuant

to Rule 54(b).    On the other hand, the ruling as to Martin Marietta

and Luhr did not eliminate either as a party because part of

Appellants’ tort claim, i.e., the non-prescribed portion, remains

pending against each of them.              Hence, for this Court to have

jurisdiction     under   Rule   54(b),     the    district    court   must   have

resolved a distinct “claim for relief” against each of Martin

Marietta and Luhr.       The critical issue, then, is whether a statute

of limitations ruling that precludes recovery for a certain past

time period but allows such recovery for another current time

period creates two distinct claims for purposes of Rule 54(b)’s

requirement that the district court dispose of one or more claims.

     We   have   never    answered    this       specific    question,   and    no

definitive formulation has emanated from the Supreme Court.                    The

Court has recognized that “a complaint asserting only one legal

right, even if seeking multiple remedies for the alleged violation


                                       5
of that right, states a single claim for relief.”     Liberty Mut.

Ins. Co. v. Wetzel, 96 S. Ct. 1202, 743 n.4 (1976).    And several

years ago, it held that separate claims could arise out of the same

transaction and occurrence.    See Cold Metal Process Co. v. United

Eng’g & Foundry Co., 76 S. Ct. 904 (1956).      But those judicial

crumbs have failed to lead the circuit courts to a concensus as to

the handling of this confusing area of law.

     Instead, various methods to determine what constitutes a

“claim for relief” for purposes of Rule 54(b) have percolated

amongst the circuits. One approach “focuse[s] upon the possibility

of separate recoveries under arguably separate claims.”     Samaad,

940 F.2d at 931.   If the alleged claims for relief do not permit

more than one possible recovery, then they are not separately

enforceable nor appropriate for Rule 54(b) certification.       See

Brandt v. Bassett (In re Southeast Banking Corp.), 69 F.3d 1539,

1547 (11th Cir. 1995) (concluding that allegations seeking damages

against holding company’s directors for failing to consider merger

possibilities over several years stated one claim because relief

could only be recovered once); Local P-171, Amalgamated Meat

Cutters v. Thompson Farms Co., 642 F.2d 1065, 1070 (7th Cir. 1981)

(Wisdom, J.) (“At a minimum, claims cannot be separate unless

separate recovery is possible.”).

     Another approach “concentrate[s] on the facts underlying the

putatively separate claims.”     Samaad, 940 F.2d at 931.   If the

facts underlying those claims are different, then those claims may

be deemed separate for Rule 54(b) purposes.     See Jack Walters &


                                 6
Sons v. Morton Bldg., 737 F.2d 698, 702 (7th Cir. 1984)); see also

Purdy Mobile Homes, Inc. v. Champion Home Builders Co., 594 F.2d

1313, 1316 (9th Cir. 1979).              “By the same token, if there is a

great deal of factual overlap between the decided and the retained

claims they are not separate, and appeal must be deferred till the

latter are resolved.”3           Jack Walters & Sons, 737 F.2d at 702.          A

prime basis for the factual approach is “to spare the court of



appeals from having to keep relearning the facts of a case on

successive appeals.”           Id.

           Finally, at least one circuit has expressed that claims are

not distinct when they are “‘so closely related that they would

fall       afoul   of    the   rule   against   splitting   claims   if   brought

separately.’”           Tolson v. United States, 732 F.2d 998, 1001 (D.C.

Cir. 1984) (quoting Local P-171, 642 F.2d at 1071).

           We have yet to resolve which amongst these methods is the

preferable method of discerning what a claim is for purposes of

Rule 54(b), and we decline to do so today.                    Rather, in this

unsettled area of the law, we simply note the important cases and

competing methods in existence and earmark them as guideposts for

future deliberations.           We now turn to the case at hand.

           In a case analogous to the present situation, the Seventh

Circuit utilized a factual approach to review the propriety of a

       3
       Although in Cold Metal Process, the Supreme Court held that
separate claims could arise out of the same transaction and
occurrence, that view does not necessarily conflict with the
factual approach. See, e.g., Minority Police Officers Ass’n v.
City of South Bend, 721 F.2d 197, 200-01 (7th Cir. 1983).

                                           7
district court’s decision to enter a Rule 54(b) final judgment

after issuing a statute of limitations ruling. See Minority Police

Officers Ass’n v. City of South Bend, 721 F.2d 197 (7th Cir. 1983).

Under the facts of that case, the district court had barred

liability for racially discriminatory acts beyond a certain time

period,   but    it   had     allowed   the   plaintiffs    to   proceed   with

allegations     based    on   more   recent   acts.   The    Seventh   Circuit

conceded that “[i]n a purely verbal sense [the] ruling[] disposed

of [a] separate claim[],” id. at 201, and that “a separate judgment

could in principle be entered on each claim,” id. at 200.              However,

the court mentioned two points that militated against finding

separability: (1) the presumption was against characterizing a

pleading as containing multiple claims for relief rather than a

single claim; and (2) the acts from the earlier time period would

be admissible to prove that the later acts were discriminatory,

thus resulting in near-complete “factual overlap” between the

alleged claims.         See id. at 200-01.      With such an overlap, the

Seventh Circuit reasoned that it would still have to relearn the

same set of facts if and when the timely allegations were appealed

from the district court’s final judgment. As a result, the Seventh

Circuit found that the Rule 54(b) final judgment was improper.

     We find the Seventh Circuit’s analysis in Minority Police

Officers instructive and conclude that Rule 54(b) was improperly

applied as to Martin Marietta and Luhr.          In the instant case, facts

pertaining to the prescribed portion of Appellants’ claim may

conceivably be admitted in the pending district court trial to


                                        8
buttress Appellants’ allegations that Martin Marietta and Luhr

trespassed      and   damaged      the    Vermilion       property    within       the

prescription      period.        Those   facts    may    include     any   evidence

identifying the two companies as past trespassers or suggesting

that they had a habit or routine of tying off to Appellants’

property. In addition, any calculation of damages arising from the

non-prescribed portion of Appellants’ claim will invariably require

a consideration of the facts prior to April 20, 1997, to determine

the extent of damages caused within the prescription period.4

     Hence, we perceive a strong factual overlap between the

prescribed      and   non-prescribed       portions      of   Appellants’    claim.

Accordingly, the appeal of the partial summary judgment in favor of

Martin Marietta and Luhr is dismissed for want of jurisdiction.5

                                         III.

     Since the appeal of Dravo’s summary judgment is properly

before   this    Court,     we   must    review   that    judgment    de    novo    to

determine whether, viewing the evidence in the non-movant’s favor,


     4
       The intertwined nature of the damages calculation is
reinforced by the fact that Appellants essentially seek one total
recovery for the alleged cumulative damages caused to their
property. That fact also comports with the single recovery test
enunciated in Southeast Banking, further belying the existence of
multiple claims in the present case.
     5
        In their brief, Appellants also imply that this court may
have jurisdiction pursuant to 28 U.S.C. § 1292(a) & (b). They do
not actually discuss those subsections but merely refer to them in
the Statement of Issues portion of their brief.     An appellant,
however, abandons all issues not raised and argued in its initial
brief on appeal. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th
Cir. 1994); United States v. Ballard, 779 F.2d 287, 295 (5th Cir.
1986) (“Notice pleading does not suffice for appellate briefs.”).
We, therefore, refrain from addressing these points.

                                          9
there is no genuine issue of material fact and whether the movant

is entitled to judgment as a matter of law.        See Owsley v. San

Antonio Indep. Sch. Dist., 187 F.3d 521, 523 (5th Cir. 1999),

petition for cert. filed, 68 U.S.L.W. 3491, (U.S. Jan. 18, 2000)

(No. 99-1205).    The district court granted summary judgment for

Dravo based on liberative prescription. Under Louisiana Civil Code

article 3492, “[d]elictual actions are subject to a liberative

prescription of one year.”    La. Civ. Code Ann. art. 3492.    “When

damage is caused to immovable property, the one year prescription

commences to run from the day the owner of the immovable property

acquired, or should have acquired, knowledge of the damage.”     La.

Civ. Code Ann. art. 3493.    The defendant has the burden of proving

that a tort claim has prescribed.      See Dixon v. Houch, 466 So. 2d

57, 59 (La. Ct. App. 1985).   If the defendant proves that one year

has passed between the tortious acts and the filing of the lawsuit,

then the burden shifts to the plaintiff to prove an exception to

prescription.    See id. at 60.

     Here, Dravo satisfied its burden by offering uncontradicted

evidence that it had not conducted any operations in Louisiana

since 1995; thus, at least one year had passed between any possible

tort by Dravo and the filing of Appellants’ suit.        Appellants,

though, contend that two exceptions apply.     First, they argue for

the application of the doctrine of contra non valentem.       Second,

they maintain that Dravo’s acts were a continuing tort.




                                  10
     Under the doctrine of contra non valentem, the prescription

period does not run when “the cause of action is not known or

reasonably knowable by plaintiff, even though his ignorance was not

induced by defendant.”     Landreneau v. Fruge, 598 So.2d 658, 662

(La. Ct. App. 1992) (citing Corsey v. State Dep’t of Corrections,

375 So. 2d 1319, 1321-22 (La. 1979)).        As a judicial exception to

the statutory rule of prescription, Louisiana courts strictly

construe this doctrine and only extend its benefits up to “the time

that the plaintiff has actual or constructive knowledge of the

tortious act.”    Bergeron v. Pan American Assurance Co., 731 So. 2d

1037, 1042 (La. Ct. App. 1999).     That is defined as “‘the time at

which the plaintiff has information sufficient to excite attention

and prompt further inquiry.’”       Id. (quoting National Council on

Compensation Ins. v. Quixx Temporary Servs., Inc., 665 So. 2d 120,

124 (La. Ct. App. 1995)).

     Based   on   the   summary   judgment    evidence,   we   find   that

Appellants may not receive the benefits of contra non valentem.

According to deposition testimony, Eldredge knew that his father,

the predecessor-in-title to Appellants, had noticed damage to the

trees caused by the barges starting in the mid-1960s, and that his

father had complained to the sheriff. The sheriff, though, took no

action, and likewise, the father took no further legal steps to

stop the towboat companies from trespassing and damaging the

Vermilion property.     In 1993, Hartwell Languirand also observed

damage to the trees and complained to the Coast Guard.                 He

requested information about the towboat companies causing the


                                   11
damage, but the Coast Guard was unable to provide him with the

businesses’ names because he failed to provide enough information

about   the   boats.      Although   he    knew   of   the   damage,   Hartwell

Languirand did not file suit until 1998.               Appellants clearly had

knowledge of the tort, at least since 1993, and chose not to

exercise their duty to seek out those responsible for their injury

in a timely manner.       See Tilley v. Kennedy, 605 So. 2d 226, 228

(La. Ct. App. 1992) (finding that claims of property damage from

defective mud were barred because the plaintiffs were told before

the prescription period that the mud was causing property damage).

      As for the second exception, Appellants assert that the

continuing tort doctrine should apply in the present case.                Under

this doctrine, when tortious conduct and resulting damages are of

a continuing nature, prescription does not begin to run until the

conduct causing the damages is abated.            See Doe v. Doe, 671 So. 2d

466, 469 (La. Ct. App. 1995).        “Typically, courts have found torts

to be continuous in nature where each individual act would not

necessarily give rise to a cause of action; but instead, the

cumulative effect of regularly-occurring or continuous actions

results in successive damages from day to day.”              Hunter v. Tensas

Nursing Home, 743 So. 2d 839, 842 (La. Ct. App. 1999).              Again, this

doctrine does not apply in Dravo’s case.                 Appellants have not

disputed Dravo’s contention that it did not engage in activity near

the   property   within    one   year     of   when    the   suit   was   filed.

Therefore, Dravo cannot have committed a continuing tort that

extends into the prescription period, and Appellants’ action has


                                      12
prescribed.

                                   IV.

      For the reasons assigned, we affirm the district court’s award

of   summary   judgment   to   Dravo    on   the   grounds   of   liberative

prescription and dismiss the appeal of the partial summary judgment

in favor of Martin Marietta and Luhr for want of jurisdiction.




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