     Case: 14-30379      Document: 00512967562         Page: 1    Date Filed: 03/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30379                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
LENETRA JEFFERSON,                                                        March 12, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

DELGADO COMMUNITY COLLEGE CHARITY SCHOOL OF NURSING,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-2626


Before JOLLY, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:*
       The Louisiana Attorney General appeals from two interlocutory rulings
in the district court, a motion to dismiss and a motion for reconsideration,
holding that plaintiff Lenetra Jefferson could proceed with her suit against the
State of Louisiana. At issue in this appeal is the correct procedure for naming
the State as a defendant under Louisiana law. Because we conclude for the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-30379
reasons that follow that we lack appellate jurisdiction, we DISMISS this
appeal for want of jurisdiction.
                                         I.
      Jefferson initiated this action by filing a complaint in Louisiana state
court, alleging a racial discrimination claim under Title VII, 42 U.S.C. § 2000e-
2(a). Her claim stems from alleged incidents of discrimination that occurred
while she was employed by the Charity School of Nursing at Delgado
Community College. In the caption of her complaint, she lists the defendant
as “Delgado Community College (Charity School of Nursing),” and she
identifies Delgado in the body of the complaint as “an agency or
instrumentality of the government of the State of Louisiana.”
      After first attempting to serve Delgado through its chancellor, Jefferson
subsequently served the Louisiana Attorney General, who appeared in the
action and removed the case to the district court. Although the Attorney
General ostensibly has represented Delgado, he purports to appear only to
protect any state interests implicated by this suit. Once in the district court,
the Attorney General moved to dismiss the case on procedural grounds,
arguing that Jefferson had not actually sued the State because she named
Delgado, which is the common name of the community college, and not the
specific state agency authorized by Louisiana statute as the entity amenable
to suit. The Attorney General declined to identify the correct state agency
before the district court, but he has represented before this Court that
Jefferson should have named the Board of Supervisors of Community and
Technical Colleges and served the Board Chairman, who is the Board’s agent
for receiving service of process.
      The district court denied the Attorney General’s motion, concluding that
Jefferson’s complaint named the State because it identified Delgado as a state
agency in the body of the complaint. Similarly, the district court denied the
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                                 No. 14-30379
Attorney General’s motion for reconsideration, and the Attorney General filed
this interlocutory appeal.
                                      II.
      The Attorney General asserts that we have jurisdiction under the
collateral order doctrine, which permits immediate appellate review under 28
U.S.C. § 1291 of a “narrow class of collateral orders.” Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 712 (1996).         Collateral orders are immediately
appealable only if they “fall in that small class [of orders] which finally
determine claims of right separate from, and collateral to, rights asserted in
the action, too important to be denied review and too independent of the cause
itself to require that appellate consideration be deferred until the whole case
is adjudicated.” Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546
(1949). We have said that an interlocutory order is reviewable under Cohen if
it is “sufficiently conclusive, separate, unreviewable, and (perhaps most-
importantly) important that the benefits of immediate appellate review
outweigh the loss of efficiency that any movement away from a strict finality
approach entails.” Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 173
(5th Cir. 2009).     Following review, and with the benefit of supplemental
briefing on the issue, we hold that the district court’s rulings are not
immediately appealable under the collateral order doctrine because this Court
may review them upon entry of final judgment.
      The Attorney General contends that the State’s due process rights are
violated if the State is compelled to participate in this litigation because
Jefferson did not properly name and serve the State as a defendant. Merely
asserting a due process right, however, does not mean that the collateral order
doctrine applies. For example, personal jurisdiction implicates a defendant’s
due process rights, but a defendant may not appeal the denial of a motion to
dismiss based on lack of personal jurisdiction under the collateral order rule.
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                                  No. 14-30379
See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994)
(rejecting a broad assertion of a right under the collateral order doctrine in
part because it would extend the doctrine to personal jurisdiction); see also Turi
v. Main St. Adoption Servs., LLP, 633 F.3d 496, 502 (6th Cir. 2011) (“A claim
that the trial court lacks personal jurisdiction over the defendant can be
vindicated on appeal after trial, and thus does not satisfy the third prong of
the collateral-order doctrine.”). Here, the State’s rights may be vindicated on
appeal from final judgment. If the State was not properly served and named
in the action, any judgment against it would be unenforceable. Although the
Attorney General asserts that he risks waiving the issue by appearing and
defending this suit, a party waives a challenge to the sufficiency of process by
failing to raise the argument in accordance with the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 12(h)(1). The Attorney General has asserted that
Jefferson did not properly serve the State, and the State has preserved this
argument for review following entry of a final judgment.
      The Attorney General draws from the Supreme Court’s decision in
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., in which the Court
acknowledged the “bedrock principle” that “[a]n individual or entity named as
a defendant is not obliged to engage in litigation unless notified of the action,
and brought under a court’s authority, by formal process.” 526 U.S. 344, 347
(1999). Murphy Brothers involved the time period for removal under 28 U.S.C.
§ 1446(b), and not the collateral order doctrine. To the point, the State’s due
process rights here are no more fundamental than personal jurisdiction, which
“protects the individual interest that is implicated when a nonresident
defendant is haled into a distant and possibly inconvenient forum.” United
States v. Morton, 467 U.S. 822, 828 (1984).         As with a defendant who
unsuccessfully moves to dismiss based on lack of personal jurisdiction, the
Attorney General here faces the same strategic dilemmas. He may take a
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                                 No. 14-30379
default judgment and appeal on the issues he has raised here, but he may face
a binding judgment if this Court does not ultimately agree with the Attorney
General’s contention that the State was not properly named and served as a
defendant in this action. Conversely, the Attorney General may defend the
action on behalf of the State and incur litigation costs that are ultimately
unnecessary if this Court adopts his position. Any litigant faces these choices
when a court denies a potentially dispositive motion, but it would eviscerate
the collateral order doctrine to hold that any such interlocutory order is
immediately appealable.     See Will v. Hallock, 546 U.S. 345, 350 (2006)
(emphasizing that the class of reviewable collateral orders is “narrow and
selective in its membership”).
      Indeed, the Supreme Court has observed that service of process, which
initiates a defendant’s obligations in a civil suit, imposes no great burden on
the defendant. See Van Cauwenberghe v. Biard, 486 U.S. 517, 526 (1988)
(“Service of process merely requires that a defendant appear through an
attorney and file an answer to the complaint to avoid default.”). Even when a
defendant claimed to be immune to service of process because his presence in
the United States was due solely to his extradition on criminal charges, the
Court held that such an immunity would relieve him from the binding force of
the judgment only, not from the inconvenience of having to stand trial. See id.
at 527.   Thus, the district court’s denial of a motion to dismiss was not
immediately appealable. Id. As in Van Cauwenberghe, the district court’s
conclusion in this case means that the State must now defend the litigation or
face the risk of a default judgment against it. Like the defendant in Van
Cauwenberghe, however, the Attorney General may raise his arguments
regarding service of process at issue here on appeal from a final judgment.
      Finally, we reject the Attorney General’s assertion that the State is
entitled to immediate appellate review because it is a sovereign state. We note
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                                      No. 14-30379
that “[c]onsistent with Supreme Court precedent and the general purposes of
the final judgment rule, we determine whether an order is appealable as a
general or categorical matter.”         Henry, 566 F.3d at 173.          At bottom, the
Attorney General has raised a procedural argument: the complaint should be
dismissed because Jefferson listed “Delgado Community College (Charity
School of Nursing)” in the caption of her complaint instead of the Board of
Supervisors of Community and Technical Colleges, and consequently, the
State has not been properly named and served with process in this action. The
Attorney General’s argument is no different from the argument that any
private litigant could make concerning the insufficiency of service of process. 1
       Thus, we hold that the Attorney General is not entitled to appellate
review of the district court’s orders under the collateral order doctrine.
                                            III.
       Alternatively, the Attorney General requests that we effectively treat his
appeal as a petition for a writ of mandamus raising this issue. A writ of
mandamus is appropriate only if: “(1) the petitioner has no other adequate
means to attain the desired relief; (2) the petitioner has demonstrated a right
to the issuance of a writ that is clear and indisputable; and (3) the issuing
court, in the exercise of its discretion, is satisfied that the writ is appropriate
under the circumstances.” In re Allen, 701 F.3d 734, 735 (5th Cir. 2012) (per




       1The Attorney General points the Court to a case holding that a denial of a motion to
dismiss based on sovereign immunity is immediately appealable under the collateral order
doctrine. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993).
The Attorney General has not cited to any authority, however, suggesting that his specific
argument here implicates sovereign immunity. For example, he does not argue that Jefferson
is barred from bringing a Title VII claim against the State based on the allegedly
discriminatory incidents that occurred at Delgado Community College. Instead, he merely
argues that Jefferson has failed to name and serve the State as a defendant, a procedural
contention.

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                                    No. 14-30379
curiam) (internal quotation marks omitted). The Attorney General has not
satisfied any of the three elements of mandamus review.
      As we have discussed above, the State has an effective right to relief on
appeal from final judgment. See In re Occidental Petroleum Corp., 217 F.3d
293, 295 (5th Cir. 2000) (stating that a petitioner for mandamus relief must
show that “error is irremediable on ordinary appeal”). Additionally, the district
court denied the Attorney General’s motions based on a Louisiana appellate
decision that applies a flexible inquiry into whether a plaintiff has sued the
State. See Dejoie v. Medley, 945 So. 2d 968, 973 (La. Ct. App. 2006). In Dejoie,
the plaintiff attempted to sue the Civil District Court for the Parish of Orleans,
which argued that it was not a juridical person. The court reasoned that the
plaintiff had named the State as a defendant in the suit, however, and it
reversed the trial court’s ruling that the Civil District Court lacked procedural
capacity to be sued. Id. The district court here did not clearly abuse its power
by concluding that Jefferson’s description of Delgado as a state agency in the
body of her complaint was sufficient to name the State in the suit and that her
service on the Attorney General was service on the State. Additionally, a writ
is inappropriate because the Attorney General has identified the proper state
board that he asserts should be named on the face of the complaint and
formally served with process. Thus, the parties may now reevaluate their
positions in the district court in the light of the Attorney General’s
acknowledgment.
      Accordingly, we decline to consider the Attorney General’s arguments on
a petition for mandamus review because mandamus review is not warranted
on these facts. 2


      2 We note that the Attorney General cites to our decision in In re Equal Employment
Opportunity Commission, 709 F.2d 392 (5th Cir. 1983). In that case, we recognized that we
may also grant mandamus review in certain cases to resolve important and unsettled issues
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                                      No. 14-30379
                                            IV.
       In sum, we hold that we lack jurisdiction to consider the Attorney
General’s interlocutory appeal.
                                                                            DISMISSED.




of law. Id. at 394. We are unpersuaded that the service-related issues here are of such great
importance that immediate review is warranted. Instead, we believe that any error by the
district court can be remedied on appeal from a final judgment.

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