     Case: 12-20726      Document: 00512305028         Page: 1    Date Filed: 07/11/2013




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                  Fifth Circuit

                                                                          FILED
                                                                         July 11, 2013

                                    No. 12-20726                         Lyle W. Cayce
                                  Summary Calendar                            Clerk



TAASHEANA QUINN, individually and on behalf of her minor child, S.M.,

                                                 Plaintiff–Appellant
v.

MAURICE MILLER,

                                                 Defendant–Appellee



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:12-CV-02181


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Taasheana Quinn (“Plaintiff”) appeals the district
court’s dismissal of her claim against Defendant–Appellee Maurice Miller
(“Defendant”) for medical expenses incurred as a result of a car accident. The
district court found Plaintiff’s claim time-barred under the applicable two-year


       *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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statute of limitations. See Tex. Civ. Prac. & Rem. Code § 16.003(a). On appeal,
Plaintiff argues that the district court erred in granting the dismissal without
requiring formal written notice to Plaintiff or allowing the opportunity for
response or discovery.    Plaintiff also challenges the district court’s order
requiring a $4,000 deposit for the appointment of a guardian ad litem to pursue
a claim on behalf of Plaintiff’s minor child, arguing that this was a punitive
measure designed to force Plaintiff to abandon the child’s claim. Because
neither of these rulings constitutes a final judgment or an appealable collateral
order, we lack jurisdiction to review their merits and dismiss Plaintiff’s appeal.
                              I. BACKGROUND
      On November 7, 2008, Defendant failed to stop at a stop sign and hit
Plaintiff’s vehicle, causing property damage and personal injury to Plaintiff and
her minor child, S.M.     Plaintiff’s treatment resulted in $8,800 in medical
expenses. Though the child apparently required no actual treatment, her trip
to the emergency room cost $8,000. Medicaid paid for these expenses and placed
a lien on any recovery Plaintiff might receive from the car accident.
      On July 19, 2012, more than two years after the statute of limitations had
run, Plaintiff filed her first valid complaint, claiming $750,000 in damages
individually and $250,000 in damages on behalf of her minor child.            She
amended her complaint on July 25, 2012, decreasing the amount of damages
claimed and requesting a jury trial. During a court-ordered pretrial conference
on October 1, 2012, Defendant orally moved for summary judgment, but filed no
written motion. The court then issued a Partial Dismissal Order dismissing
Plaintiff’s individual claims because the statute of limitations had expired, but
allowed the child’s claim to proceed. The court also ordered Plaintiff to deposit
$4,000 into the court registry as security for payment of a guardian ad litem.
Plaintiff has timely appealed these orders.



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                                II. DISCUSSION
      Plaintiff appeals both the dismissal of her own claim and the order
requiring the deposit of $4,000 to secure payment for a guardian ad litem. She
does not allege a tolling of the statute of limitations but instead appeals the
Partial Dismissal Order on the grounds that the district court erred in
dismissing her personal injury claim after only an oral motion for summary
judgment and without written notice or the opportunity for discovery or briefing,
notwithstanding the fact that the district court did not grant summary judgment
but dismissed the claim.
      As explained below, this Court lacks jurisdiction to review the district
court’s orders in accordance with the requirements of Federal Rule of Civil
Procedure 54(b) and the collateral order doctrine.
1.    Partial Dismissal Order
      This Court has jurisdiction to review only final judgments and certain
interlocutory orders of district courts. 28 U.S.C. §§ 1291–1292. In the absence
of certification by the district court that it has expressly determined there is no
just reason for delay and has expressly directed entry of judgment, “a partial
disposition of a multi-claim or multi-party action is ordinarily not a final
appealable order.” Tower v. Moss, 625 F.2d 1161, 1164–65 (5th Cir. 1980)
(explaining an exception to the Rule 54(b) requirement where the district court
dismissed plaintiffs’ claims against multiple defendants in separate orders, such
that all claims were adjudicated (citing 10 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure §§ 2653–2660 (2d ed. 1973))); see Fed. R.
Civ. P. 54(b); cf.. An “order . . . that adjudicates fewer than all the claims . . . of
fewer than all the parties does not end the action as to any of the claims or
parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.” Fed. R.
Civ. P. 54(b).

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      Exceptions to the requirement of an explicit determination of final
judgment have been found where the language of the order or information in the
record indicates the district judge’s intent to enter a final judgment under Rule
54(b). See, e.g., Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1219,
1220 (5th Cir. 1990) (en banc) (holding that the language in the order and in the
underlying motion sufficiently demonstrated the district judge’s intent to enter
a partial final judgment under Rule 54(b)). In the absence of an explicit
determination of final judgment, the order must indicate an “unmistakable”
intent on the part of the district judge that it be a final judgment.           See
Briargrove Shopping Ctr. v. Pilgrim Enters., Inc., 170 F.3d 536, 539 (5th Cir.
1999); see also Kelly, 908 F.2d at 1219 (holding that an order captioned “F.R.C.P.
54(b) JUDGMENT” and including language “that there be a final judgment
entered pursuant to Federal Rule of Civil Procedure 54(b)” sufficiently indicated
an intent that it be a final judgment).
      The order dismissing Plaintiff’s individual claim does not meet the
requirements for an exception to Rule 54(b). The order does not mention Rule
54(b), state that there is no just reason for delay, or indicate an intent that this
be a final and immediately appealable judgment. See Crostley v. Lamar Cnty.,
No. 12-40288, 2013 U.S. App. LEXIS 10850, at *23–24 (5th Cir. May 29, 2013).
Accordingly, there is no evidence of the district judge’s “unmistakable” intent
that this be a final judgment. See Briargrove Shopping Ctr., 170 F.3d at 539.
This lack of evidence, along with our established interest in avoiding piecemeal
litigation, supports Defendant’s position that this Court lacks jurisdiction to
review the district court’s decision where one claim, the child’s, has yet to be
adjudicated. See Curtiss–Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980).
2.    Order to Deposit
      Plaintiff next requests that this Court reverse the Order to Deposit $4,000,
arguing that the collateral order doctrine should apply to allow the appeal of this

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order notwithstanding the absence of a final judgment. She alleges that the
$4,000 security for payment of a guardian ad litem is a penalty that forces her
to abandon the claim. Defendant claims we lack jurisdiction to review the
Order to Deposit under the collateral order doctrine.
      There are three conditions to allowing a collateral order appeal: (1) the
order must conclusively determine the disputed question; (2) the order must
resolve an important issue completely separate from the merits of the action;
and (3) the order must be effectively unreviewable on appeal from a final
judgment. Will v. Hallock, 546 U.S. 345, 349 (2006) (citing P.R. Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).             These
requirements have been found in limited cases where an order effectively
excludes litigants from court or rejects a complete defense such as qualified
immunity. See, e.g., Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713 (1996);
Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (citing Mitchell v. Forsyth, 472 U.S.
511, 525–26 (1985)). If delaying review until entry of final judgment would
“imperil a substantial public interest” or “some particular value of a high order,”
then the third condition is met. Will, 546 U.S. at 352–53.
      A collateral order appeal may also be granted if the central benefits or
rights of the claim or defense would otherwise be forfeited. P.R. Aqueduct &
Sewer Auth., 506 U.S. at 143–44. For example, when a defendant appeals a
denial of a qualified immunity or Eleventh Amendment immunity claim, appeal
is granted because otherwise the purpose of the defense—avoiding the costs of
subjecting public officials to the risks of discovery and trial—would be
undermined. Id. Because the right to immunity would be lost were a case
erroneously permitted to go to trial, a denial of immunity must be immediately
appealable.
       In arguing that this Court has jurisdiction, Plaintiff relies on Cohen v.
Benefit Industrial Loan Corporation, 337 U.S. 541 (1949), in which the Supreme

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Court decided that the district court’s decision denying the defendant’s right to
security was appealable as a final disposition of a claimed right which was not
an ingredient of the cause of action. Cohen, 337 U.S. at 546. There, the plaintiff
brought a shareholder derivative action, and the corporation appealed the
district court’s decision not to apply a state statute requiring the plaintiff to post
security to be used for the payment of the defense expenses in the case that the
plaintiff’s suit was unsuccessful. Id. at 543 – 45. The plaintiff had demanded
that the corporation initiate proceedings for the recovery of $100,000,000 in
assets allegedly diverted due to fraud and mismanagement, but the individual
defendants prevented it from doing so by their control of the corporation. Id. at
543. As only one of 16,000 stockholders, the plaintiff’s holdings, along with those
of the intervenor, accounted for approximately 0.0125% of the corporation’s
stock. Id. at 544. The effect of the statute in question was “to make a plaintiff
having so small an interest liable for the reasonable expenses and attorney’s fees
of the defense if he fail[ed] to make good his complaint and to entitle the
corporation to indemnity before the case [could] be prosecuted.” Id. at 544 – 45.
Because the district court’s decision not to enforce the statute requiring security
effectively determined the defendant’s right to indemnification, which would
otherwise be lost, the Supreme Court held that it was final and appealable. Id.
at 545–46.
      The Supreme Court, however, made clear that its decision did not alter the
disallowance of appeals from tentative, informal, or incomplete decisions under
28 U.S.C. § 1291, nor did it allow appeal from a matter that remains open or
inconclusive. Id. at 546. Even a decision that is “fully consummated” is not
appealable if it is but a step towards a final judgment with which it will merge.
Id. The Supreme Court allowed the appeal in Cohen because once there was a
final judgment, it would be too late to review the present order and the rights
conferred by the statute would be lost. Id. Significantly, it noted that not all

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orders fixing security are subject to appeal. Id. at 547.
      Here, the Order to Deposit a security payment is not such a decision that
effectively deprives the Plaintiff of a right, because whether she chooses to pay
the deposit or not, the right to pursue the claim will not be lost. Unlike the facts
in Cohen, where, had the security payment requirement not been enforced, the
defendant likely would have lost the right to attorney’s fees and expenses and
been unable to appeal once a final judgment had been entered, here, the minor’s
claim will not be lost as a result of failing to pay the security deposit for the
appointment of a guardian ad litem. While the child is under eighteen years of
age, the statute of limitations is tolled. Tex. Civ. Prac. & Rem. Code § 16.001.
Once she turns eighteen, she will have two years to bring this claim without the
need for a guardian ad litem or the $4,000 security deposit. Additionally, if
Plaintiff chooses not to deposit the money, both claims will most likely be
dismissed by a final judgment, at which point they will become appealable.
      If instead Plaintiff chooses to pay the $4,000 security deposit, she will be
able to appeal the issue of the Order to Deposit along with the merits of the case
once the district court has entered a final judgment on the merits of the minor
child’s claim. An interim fee award due that does not constitute an appealable
order is subject to review following the rendering of a final judgment. See Shipes
v. Trinity Indus., 883 F.2d 339, 344 (5th Cir. 1989); Ruiz v. Estelle, 609 F.2d 118,
119 (5th Cir. 1980) (holding that an order for attorney’s fees was subject to later
reconsideration by the court and thus not immediately appealable). Either way,
Plaintiff maintains the right to appeal both the merits of the claims and the
question of whether the security deposit requirement was a punitive measure.
                         III. CONCLUSION
      The Partial Dismissal Order did not adjudicate all claims in this multi-
claim suit, and is therefore not a final order from which an appeal may be
granted.   Because the Order to Deposit does not deprive Plaintiff of the

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remaining claim, and because delaying review until a final judgment will not
“imperil a substantial public interest” or any “particular value of a higher order,”
as set out in Will, this Court lacks jurisdiction to review this appeal. 546 U.S.
at 473. We therefore DISMISS the appeal for want of jurisdiction.




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