                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                   May 18, 2006
                       FOR THE FIFTH CIRCUIT
                                                             Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                     Clerk

                            No. 05-60384

                      ))))))))))))))))))))))))))

GLOVER ALCORN RUSSELL, JR.;
GLOVER ALCORN RUSSELL, III,

                                               Plaintiffs-Appellants,

versus

WATKINS LUDLAM WINTER &
STENNIS, P.A.; FOX-EVERETT, INC.;
WENDY EVERSOLE; HEALTH & WELFARE
PLAN FOR EMPLOYEES OF WATKINS
LUDLAM WINTER & STENNIS, P.A.,


                                                   Defendants-Appellees.




           Appeal from the United States District Court
             for the Southern District of Mississippi
                       USDC No. 3:04-CV-220




Before REAVLEY, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiffs-Appellants challenge the district court’s order

dismissing their claims for failure to comply with Rule 8 of the

Federal Rules of Civil Procedure.     We DISMISS the appeal for lack


     *
      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this opinion should not be published and is not precedent except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.
of jurisdiction.

I.     BACKGROUND

       On April 8, 2003, Plaintiff-Appellant Glover Alcorn Russell,

III (“Trey”) was injured in an automobile accident.                 After the

accident, Trey’s father, Plaintiff-Appellant Glover Alcorn Russell,

Jr., a former employee of Defendant-Appellee Watkins Ludlam Winter

& Stennis, P.A. (“Watkins Ludlam”), enrolled Trey in the Health &

Welfare Plan for Employees of Watkins Ludlam (“the Plan”).             Because

Plaintiffs-Appellants contend that they have not been reimbursed for

medical expenses resulting from Trey’s accident, they filed a

complaint        asserting    that    Defendants-Appellees1         willfully,

deceptively, intentionally, and/or negligently failed to inform them

of the availability and extent of medical insurance coverage under

the    Consolidated      Omnibus   Budget    Reconciliation   Act    of   1985

(“COBRA”), 29 U.S.C. §§ 1161-1168, in contravention of the Employee

Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. §§ 1001-

1461, and the Health Insurance Portability and Accountability Act

of 1996 (“HIPAA”), Pub. L. No. 104-191, 110 Stat. 1936.2

       The complaint is over one hundred pages long and contains over

four       hundred   paragraphs.     There   are   twenty-seven     counts   of


       1
      In addition to Watkins Ludlam Winter & Stennis, P.A.,
Plaintiffs-Appellants named the Plan and the Plan’s
administrators Fox-Everett, Inc. and Wendy Eversole as
Defendants.
       2
      Additionally, the Plaintiffs-Appellants seek penalties,
removal of Plan fiduciaries, attorney’s fees, and costs.

                                       2
malfeasance and approximately one hundred thirty pages of exhibits.

     Defendants-Appellees were granted extensions of time to respond

to the complaint.    Next, Defendants-Appellees filed motions to

dismiss the Plaintiffs’ complaint for failure to comply with Rule

8 of the Federal Rules of Civil Procedure.3   Meanwhile, Plaintiffs-

Appellants, on March 14, 2005, filed a Motion for Default Judgment

against Defendants-Appellees. On March 31, 2005, without addressing

Plaintiffs’ Motion for Default Judgment, the district court granted

Defendants’ Motions to Dismiss without prejudice.    The court also

stated that “Plaintiffs may re-file their complaint but only in

obedience to the rules for pleading.”   However, the court did not

set forth judgment on a separate document in accordance with Rule




     3
       While the substance of the motions focused on the
Plaintiffs’ violations of Rule 8, Defendants-Appellees filed the
motions generally pursuant to Rules 8, 12, and 41 of the Federal
Rules of Civil Procedure.
     Rule 8(a) provides that “[a] pleading which sets forth a
claim for relief...shall contain...a short and plain statement of
the claim showing that the pleader is entitled to relief.”
FED.R.CIV.P. 8.
     Rule 12(e) states that “[i]f a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a
party cannot reasonably be required to frame a responsive
pleading, the party may move for a more definite statement before
interposing a responsive pleading. The motion shall point out the
defects complained of and the details desired.” FED.R.CIV.P.
12(e).
     Rule 41(b) provides that “[f]or failure of the
plaintiff...to comply with [the Federal Rules of Civil Procedure]
or any order of court, a defendant may move for dismissal of an
action or of any claim against the defendant.” FED.R.CIV.P.
41(b).

                                 3
58.4       Instead of refiling their complaint, Plaintiffs-Appellants

filed this appeal.       Defendants-Appellees filed motions to dismiss

this appeal for lack of jurisdiction.              Appellees’ motions and

Appellants’ response were carried with the case so that the issue

of whether this Court has jurisdiction could be decided alongside

the issue of whether the district court’s dismissal constitutes an

abuse of discretion.

II.    DISCUSSION

       The threshold question in this case is whether this Court has

jurisdiction to hear this appeal.            In order to hear this case we

must determine that the district court’s order is final, and thus

appealable.      See 28 U.S.C. § 1291.       This Court lacks jurisdiction

over the appeal for two reasons: (1) Defendants-Appellees raised the

issue that the district court did not set forth judgment on a

separate document in accordance with Rule 58; and (2) the district

court’s order does not end the litigation on the merits.

       First, in Nagle v. Lee, 807 F.2d 435 (5th Cir. 1987), this

Court acknowledged:

                    the [Supreme] Court emphasized that where
                    the district court had evidenced its
                    intent that an opinion and order would
                    represent its final decision in the case
                    and the clerk records that order and
                    neither party objects to the lack of a
                    separate judgment document, the parties


       4
      Rule 58 provides that, with limited exceptions, “[e]very
judgment...must be set forth on a separate document.”
FED.R.CIV.P. 58.

                                         4
                will have waived the requirements of rule
                58 and the appellate court may take
                jurisdiction over this “final” judgment.

Id. at 441 (emphasis added)(citing Bankers Trust Co. v. Mallis, 435

U.S. 381, 386 (1978)).    Similarly, this Court has held that “we may

take jurisdiction of an appeal from a ‘final decision’ under

[section] 1291, even though no separate judgment has been entered,

when the parties fail to raise the issue.”5                 Hanson v. Town of

Flower Mound, 679 F.2d 497, 501 (5th Cir. 1982)(emphasis added).

In accordance with this principle, this Court has refused to hear

appeals where the district court did not comply with Rule 58 and an

appellee asserted lack of jurisdiction.               Nagle, 807 F.2d at 441

(“Consistent    with   Hanson,   we       have   dismissed    an   appeal   for

noncompliance with rule 58 where an appellee asserted lack of

jurisdiction.” (citing Seal v. Pipeline, Inc., 724 F.2d 1166 (5th

Cir. 1984))).

     Defendants-Appellees, in this case, have raised the issue that

the district court did not enter a separate judgment. The fact that

Defendants-Appellees     have    objected        to   the   district   court’s

noncompliance with Rule 58 mandates a dismissal. See Seal, 724 F.2d

at 1167.


     5
      The panel also noted that the Supreme Court’s decision in
Bankers Trust Co. v. Mallis, 435 U.S. 381 (1978), did not affect
the law regarding the separate document requirement when an
appellee does object to the district court’s failure to comply
with rule 58. Hanson v. Town of Flower Mound, 679 F.2d 497, 502
(5th Cir. 1982).

                                      5
     This Court also lacks jurisdiction over the appeal because the

district court’s order does not end the litigation on the merits.

A “final decision” is one that “ends the litigation on the merits

and leaves nothing for the court to do but execute the judgment.”

Catlin v. United States, 324 U.S. 229, 233 (1945).6

     The district court’s order dismissed Appellants’ claims without

prejudice.     Moreover, the court expressly gave Appellants the

opportunity to re-file or amend their complaint.7   Finally, because

the court did not reach Appellants’ substantive arguments, its order

did not dispose of the merits of the litigation.    Consequently, we

find that the district court’s order is not final; thus it is not

appealable.8


     6
      Similarly, this Court has stated:
               “When a decree finally decides and
               disposes of the whole merits of the
               cause, and reserves no further
               questions or directions for the
               future judgment of the court, so
               that it will not be necessary to
               bring the cause again before the
               court for its final decision, it is
               a final decree.”
Anastasiadis v. S.S. Little John, 339 F.2d 538, 539 (5th Cir.
1964)(quoting Beebe v. Russell, 60 U.S. 283 (1856)).
     7
      We are also convinced that the district court’s failure to
enter judgment on a separate document also evidences the court’s
intent to not issue a final decision.
     8
      Appellants also argue that the district court should have
entered a default judgment for them because Appellees filed a
motion to dismiss instead of an answer. Although a motion to
dismiss is not a responsive pleading, because the district court
considered Appellees’ motion pursuant to Rule 12 to include a
motion under Rule 12(e) for a more definite statement, Appellees

                                 6
III. CONCLUSION

     Because this Court lacks jurisdiction, we DISMISS the appeal.




were not required to file a responsive pleading until the court
ruled on its pending motion. FED.R.CIV.P. 12(f); McZeal v. Ocwen
Fin. Corp., 252 F.3d 1355 (5th Cir. 2001).

                                7
