     Case: 19-30286      Document: 00515352783         Page: 1    Date Filed: 03/20/2020




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

                                                                                FILED
                                                                            March 20, 2020
                                      No. 19-30286
                                                                             Lyle W. Cayce
                                                                                  Clerk
JUANEA L. BUTLER, Individually and as representative of all others
similarly situated,

               Plaintiff–Appellant

v.

DENKA PERFORMANCE ELASTOMER LLC; E I DUPONT DE NEMOURS
& COMPANY; LOUISIANA STATE, Through the Department of
Environmental Quality; LOUISIANA STATE, Through the Department of
Health; Incorrectly named as Louisiana State Through the Department of
Health and Hospitals,

               Defendants–Appellees


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:18-CV-6685


Before DENNIS, GRAVES, and WILLETT, Circuit Judges.
PER CURIAM:*
       In this environmental tort case, Juanea Butler alleges that neoprene
production from the Pontchartrain Works Facility exposed residents of St.
John the Baptist Parish to unsafe levels of chloroprene, which may result in,
among other concerns, an elevated risk of cancer. Butler sued, seeking class



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 19-30286
certification, damages, and injunctive relief. The district court granted
Defendants’ motions to dismiss, but the Dismissal Order was, for reasons
explained below, not a final judgment. Butler filed two notices of appeal, but
because the district court had not yet entered a final judgment, we lack
jurisdiction under 28 U.S.C. § 1291 to consider either. We therefore DISMISS.

                               I. BACKGROUND
      DuPont owned and operated Pontchartrain Works Facility from 1969 to
2015, when DuPont sold the plant to Denka Performance Elastomer LLC.
Butler alleges that the plant, for decades, emitted unsafe levels of chloroprene
into the air of the surrounding community. According to Butler, tens of
thousands of people who comprise this putative class live or work near the
plant, where they are being continuously exposed to dangerous emissions of
chloroprene.
      Butler sued DuPont, DPE, the Louisiana Department of Environmental
Quality, and the Louisiana Department of Health in Louisiana state court.
DuPont then removed the case to federal court based on jurisdiction under the
Class Action Fairness Act, 28 U.S.C. § 1332(d). Butler’s motion to remand was
denied. All four Defendants filed 12(b) motions to dismiss, arguing, among
other things, that Butler’s claims were time-barred and inadequately pled.
Before the district court ruled on any of these motions, Butler filed a motion to
amend her petition. This was referred, under a local rule, to a magistrate judge.
And before the magistrate judge resolved Butler’s motion to amend, the district
court granted Defendants’ motion to dismiss. But the district court cabined its
Dismissal Order. Its ruling was subject to “the proviso that there is pending
before Chief Magistrate Judge Roby a contested motion for leave to file second
amended class action petition, and the Court does not purport to interfere with
the magistrate judge’s proceedings on that remaining motion.”


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                                       No. 19-30286
       Butler filed a notice of appeal in April of 2019. She sought review of three
orders: (1) the district court’s Dismissal Order; (2) the denial of her motion to
remand; and (3) the order dismissing her motion for class certification. Five
days after Butler filed her notice of appeal, the magistrate judge granted in
part and denied in part Butler’s motion to amend her complaint to pursue new
claims against DuPont and DPE. The magistrate judge revived Butler’s claims
against DuPont only as to strict liability, and she granted Butler leave to
amend on a continuing-tort theory of liability as to DPE. Butler filed an
amended complaint, which is currently pending before the district court.
DuPont appealed the magistrate judge’s order allowing amendment, and the
district court reversed the magistrate judge’s order as to DuPont. Butler filed
a second notice of appeal in June, this time appealing the district court’s
reversal of the magistrate judge’s order allowing amendment, in addition to
the orders previously appealed in April. 1 Butler raises many issues on appeal,
but because we lack jurisdiction to address the merits of her claims, we only
discuss her jurisdictional arguments. Butler contends that (1) the Dismissal
Order was a final, appealable judgment; and that even if it wasn’t, (2) the
Order denied an injunction, which is appealable under 28 U.S.C. § 1292(a)(1).
Both arguments lack merit.

                                    II. JURISDICTION
A.     Finality of Judgment Below
       Under 28 U.S.C. § 1291, “federal courts of appeals are empowered to
review only ‘ final decisions of the district courts.’ ” Microsoft Corp. v. Baker,
137 S. Ct. 1702, 1707 (2017) (quoting 28 U.S.C. § 1291). To determine finality,


       1 The June appeal was assigned the same case number as the April appeal. Butler
filed a motion to sever, seeking a separate briefing schedule for each appeal. The motion also
requested that the two appeals, after severance for separate briefing schedules, be
consolidated to one panel. The motion to sever and consolidate was denied. The two appeals
are now before us as one appeal, and we address the issues raised in both.
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                                         No. 19-30286
the court asks whether the order “ends the litigation on the merits and leaves
nothing for the court to do but execute judgment.” Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S.
229, 233 (1945)). And in a multi-party lawsuit, “a dismissal of claims against
some, but not all, defendants is not a final appealable judgment unless,
pursuant to Rule 54(b) . . . the district court concludes there is no justification
for delaying an appeal and specifically directs entry of judgment.” Elizondo v.
Green, 671 F.3d 506, 509 (5th Cir. 2012). 2
       Here, there is no final, appealable judgment. The district court granted
Defendants’ motions to dismiss with a “proviso” that specifically kept alive
contested motions before the magistrate judge. Butler then filed a notice of
appeal, after which the magistrate judge granted in part and denied in part
Butler’s motion for leave to file a second amended complaint, which prevented
this case from being dismissed in its entirety. Butler’s Second Amended
Complaint contained new and revised claims against DPE and DuPont. Thus,
the district court’s Dismissal Order did not end the litigation on the merits.
The Order expressly contemplated that the litigation might continue, which is
exactly what happened.
       In her opening brief, Butler failed to invoke our jurisdiction under any
authority. 3 In her reply brief, Butler argues we have jurisdiction because the



       2  Rule 54(b) specifically requires the district court to certify the judgment as “final for
appellate jurisdiction purposes,” which “must comply with the requirements set out in Rule
54(b).” Witherspoon v. White, 111 F.3d 399, 402 (5th Cir. 1997). Here, there was no entry of
judgment or certification under 54(b).
        3 Butler’s failure to do so is reason enough to dismiss her appeal. As the appellant, she

“‘ bears the burden of establishing this court’s appellate jurisdiction over this appeal’ and
there is no need to explore jurisdictional bases the appellant does not address.” Thibodeaux
v. Vamos Oil & Gas Co., 487 F.3d 288 (5th Cir. 2007) (quoting Acoustic Sys., Inc. v. Wenger
Corp., 207 F.3d 287, 289 (5th Cir. 2000)). And we “need not consider a claim raised for the
first time in a reply brief.” United States v. Prince, 868 F.2d 1379, 1386 (5th Cir. 1989), cert.
denied, 493 U.S. 932 (1989).
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                                  No. 19-30286
Dismissal Order was final. If, Butler contends, the district court’s intention is
to dismiss an action, it’s a final judgment, “notwithstanding any additional
language that might appear to be conditional.” But Butler’s authorities for this
proposition only highlight the weakness of her position. These cases involved
orders that imposed conditions upon the parties, rather than on the court itself.
Consider our 1990 decision in Picco v. Global Marine Drilling Co. 900 F.2d 846,
847 (5th Cir. 1990). In Picco, the district court granted a motion to dismiss on
forum non conveniens grounds. The court’s order included “a number of
conditions preventing the defendants from asserting the statute of limitations
and other defenses against Picco’s claim in the Texas courts.” Id. at 849. On
appeal, we found that the order was final because the dismissal “had the
practical effect of a dismissal without prejudice.” Id. at 849 n.1. We noted that
“the bare possibility that the district court might ultimately reassume
jurisdiction over the case in the event of some unspecified future contingency
does not prevent the order from becoming appealable.” Id. But here, we don’t
have an unspecified future contingency; we have concrete, contested motions
before the court.
      Butler also cites to Koke v. Phillips Petorleum Co. and to Cuevas v.
Reading & Bates Corp. Both of these cases, like Picco, dealt with forum non
conveniens dismissal orders that contained conditional language. In Cuevas,
the district court merely “held open the possibility that, should appellees have
failed subsequently to submit to the jurisdiction of a foreign forum, appellants
might refile their complaints in the district court.” 770 F.2d 1371, 1376 (5th
Cir. 1985) (overruled on other grounds) (emphasis added). Because the district
court’s order “did not contemplate the entry of any further orders regarding
the merits of any such determinations . . . ,” it was final and appealable. Id.
Plus, we stated that any ability to bring the action again in federal court “lie[d]
expressly with the appellants,” which created the “practical effect of a dismissal
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                                       No. 19-30286
without prejudice.” Id. (emphasis in original). Koke was remarkably similar. In
that case, we observed that the case was “only open in the event that the
conditions [were] not met and the appellants refile[d] their claims.” 730 F.2d
211, 216 (5th Cir. 1984) (overruled on other grounds) (emphasis added). The
order was final because the conditions the court imposed, like those in Picco,
merely protected the appellants by allowing them to refile in federal court,
“without penalty, if the defendant balks in the foreign forum.” Id. at 218.
Another key factor in Koke: The orders were final because they “put the
appellants effectively out of federal court, leaving them no option to continue
in that forum.” Id.
       Koke, Cuevas, and Picco all emphasize the same underlying standard for
evaluating finality: We look to the “underlying effect of the orders, and not
merely their language per se.” Cuevas, 770 F.2d at 1375. Here, the effect of the
district court’s conditional language is clear—it kept the case open. Butler was
not effectively put out of court; she was kept in court. This is how the
magistrate judge must have understood the conditional language, since she
ruled (favorably in part) on Butler’s motions before her. And that’s how the
parties understood the order because they continued to litigate before the
district court and magistrate judge. Indeed, even Butler continued filing below
after her notice of appeal. The district court’s Dismissal Order, rather than
refer to “an unspecified future contingency,” pointed to a specific motion, still
pending before the court, that kept the case open. 4 The proviso in the Order


       4 Butler’s other cases fare no better. In Herman v. Cataphora, Inc. 730 F.3d 460 (5th
Cir. 2013), the district court granted a motion to dismiss and a motion to transfer venue. We
wrestled with the effect of those conflicting orders and found that the dismissal order was
valid and effective. But unlike here, in Herman there was no conditional language, just two
contrary holdings. And either disposition would have taken the case out of the district court.
We were simply tasked with deciding which order controlled. Butler also cites to Demahy v.
Schwarz Pharma, Inc., 702 F.3d 177, 182 n.1 (5th Cir. 2012), and Witherspoon, 111 F.3d at
401–02. Demahy merely stands for the proposition that the district court does not need to
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                                        No. 19-30286
rendered it non-final. And thus we have no jurisdiction to entertain the April
or June appeals. 5
B.     Refusal of an Injunction
       Butler argues, in the alternative, that if the district court’s order is not
a final judgment, we still have jurisdiction under 28 U.S.C. § 1292(a)(1)
because the district court’s Dismissal Order “refused” an injunction sought by
Butler in her petition. Section 1292(a)(1) does allow for interlocutory appeal
when injunctive relief is granted or denied, but Butler’s argument is squarely
foreclosed by Supreme Court and Fifth Circuit precedent. We have offered
clear guidance on how to determine whether we have jurisdiction over such
appeals.
       The “first question under § 1292(a)(1) is whether the order appealed from
specifically denied an injunction . . . or merely had the practical effect of doing
so.” E.E.O.C. v. Kerrville Bus Co., Inc., 925 F.2d 129, 131 (5th Cir. 1991)



name every defendant in the actual entry of judgment. The court will look to whether the
district court “clearly intended to effect a final dismissal of a claim.” Demahy, 702 F.3d at 182
n.1 (quoting Picco, 900 F.2d at 846 n.4). Butler asserts that Witherspoon applied Picco and
“found a judgment final and appealable, despite ambiguous language in that judgment.” But
Butler is confused. In Witherspoon, we found that the “Final Judgment” at issue lacked
finality. We did so in large part because the record indicated that the “district court failed to
adjudicate the rights and liabilities” of all the parties. This failure deprives an order of
finality, “irrespective of the district court’s intent.” Witherspoon, 111 F.3d at 402.
Witherspoon, in reality, stands for the proposition that “[m]erely labeling a judgment as final
does not make it so.” Id. at 401. That undermines, rather than supports, Butler’s argument.
        5 Butler also contends that the filing of her first notice of appeal stripped the district

court of jurisdiction, so the district court’s decision to reverse the magistrate judge should be
vacated. Butler is correct that, generally, filing a notice of appeal strips the district court of
jurisdiction, but this rule is inoperative for nonappealable orders. United States v. Hitchmon,
602 F.2d 689 (5th Cir. 1979) (en banc), superseded by statute on other grounds (holding that
a “notice of appeal from a nonappealable order does not render void for lack of jurisdiction
acts of the trial court taken in the interval between the filing of the notice and the dismissal
of the appeal by either the district court or the appellate court”); United States v. Dunbar,
611 F.2d 985 (5th Cir. 1980) (same). And as we have explained, Butler’s first notice of appeal
sought review of a nonappealable order. In any event, Butler’s argument has little relevance
because we would still lack jurisdiction even if the district court was temporarily stripped of
its jurisdiction, merely based on the proviso in the district court’s Dismissal Order.
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                                       No. 19-30286
(emphasis in original). If the order specifically denied an injunction, the order
is immediately appealable as of right. Id. at 132. Here, the district court did
not specifically mention the injunction in its dismissal order, so the order is
not appealable as of right. In this situation, we move to the second step: If the
order “only had the practical effect of denying an injunction,” the party may
still have a right to immediate appeal. 6 But the appealing party must “meet
the test established by Carson: it must show both that the order may have
serious, perhaps irreparable consequences, and that the order can only be
effectively challenged by an immediate appeal.” Id.; see also Carson v.
American Brands, Inc., 450 U.S. 79, 84 (1981). Here, Butler has shown neither.
She did not even make an argument for why the order can’t be effectively
challenged after a final judgment. Because she did not do so, we cannot
entertain an appeal from the injunction’s denial until there is a final judgment
below.

                                      CONCLUSION
       There is no final judgment below, and Butler does not satisfy the test for
interlocutory appeal of an injunction established by Carson. We therefore
DISMISS for lack of jurisdiction.




       6 But we have made it clear that “an order that dismisses a claim seeking an injunction
is not ordinarily an order specifically denying the injunctive relief sought by the claim.”
Kerrville Bus Co., 925 F.2d at 132. Because of our “important policy” of avoiding piecemeal
litigation, there must be a “substantial indication” that the district court was “acting
specifically to deny injunctive relief.” Id.
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