Case: 20-30078     Document: 00515540252         Page: 1    Date Filed: 08/25/2020




         United States Court of Appeals
              for the Fifth Circuit                            United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
                                                                August 25, 2020
                                No. 20-30078                     Lyle W. Cayce
                              Summary Calendar                        Clerk


 Umbrella Investment Group, L.L.C.;
 Lawrence Q. Robertson; Micco D. Johnson;
 Jarmarritt Alexis; Eugene Pierre Steib;
 Valvenia R. Joseph; Leonard Robertson, III;
 Gregory Williams; Detrell Edmonds,

                                                        Plaintiffs—Appellants,

                                     versus

 Wolters Kluwer Financial Services, Incorporated,

                                                         Defendant—Appellee.


                 Appeal from the United States District Court
                    for the Eastern District of Louisiana
                          USDC No. 2:19-CV-2156


 Before Jolly, Jones, and Southwick, Circuit Judges.
 Per Curiam:
        Umbrella Investment Group, L.L.C., and certain of its board members
 (collectively, “UIG”) appeal the dismissal of their complaint for failure to
 state a claim, contending that UIG has stated claims for fraud and detrimental
 reliance. We disagree and thus AFFIRM the district court’s judgment.
Case: 20-30078      Document: 00515540252          Page: 2     Date Filed: 08/25/2020




                                   No. 20-30078


        In November 2014, Umbrella Investment Group, L.L.C., obtained a
 loan from Pedestal Bank, which the investors guaranteed, to pay for property
 to build a sports bar. When the loan came up for renewal, the bank informed
 the company that the property was in a special flood hazard area and required
 flood insurance. The company was unable to afford flood insurance, and the
 bank foreclosed on the property.
        Thereafter, UIG sued Wolters Kluwer Financial Services, Inc.
 (“Wolters Kluwer”). According to UIG, at the time of the loan, Wolters
 Kluwer provided the plaintiffs and Pedestal Bank “written certification that
 the property subject to the loan was not in a flood hazard area that required
 flood insurance under FEMA regulations pursuant to the Flood Disaster
 Protection Act of 1973.” Further, the plaintiffs maintained “on information
 and belief” that Wolters Kluwer “knew that the property was in a flood
 hazard area and deliberately, fraudulently, and falsely failed to disclose this
 information.”
        In the district court, Wolters Kluwer moved to dismiss the case under
 Federal Rule of Civil Procedure 12(b)(6), contending that the plaintiffs failed
 to state a claim by alleging fraud without the specificity required by Rule 9(b).
 UIG responded that its “Complaint spells out the specific and particular
 details of the circumstances and related facts of the fraud claim.” The
 district court granted the 12(b)(6) motion and then rendered judgment in
 favor of Wolters Kluwer while stating that “all claims in the above-captioned
 matter are DISMISSED WITHOUT PREJUDICE.”                           UIG timely
 appealed.
        To start, Wolters Kluwer denies that we have jurisdiction over this
 appeal. Because “the district court granted a Rule 12(b)(6) motion and
 dismissed the claims without prejudice,” Wolters Kluwer contends, “the
 district court made no ruling on the merits and the without prejudice




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                                         No. 20-30078


 dismissal is not a final judgment.” The conclusion pressed is that, without a
 final judgment, appellate jurisdiction under 28 U.S.C. § 1291 is lacking here.
         We disagree. The district court entered judgment dismissing “all
 claims in the above-captioned matter,” and a judgment dismissing all claims
 is a judgment dismissing an action. As one court has explained, “[t]he
 dismissal of an action – whether with or without prejudice – is final and
 appealable.”       Ciralsky v. C.I.A., 355 F.3d 661, 666 (D.C. Cir. 2004).
 Alternatively, the judgment should be read that way because, as another court
 stated, it “looks both ways.” Hoskins v. Poelstra, 320 F.3d 761, 764 (7th Cir.
 2003). In Hoskins, similar to this case, the district court dismissed a
 “complaint” “without prejudice,” ordinarily a nonfinal decision, while
 issuing a “final” judgment in the defendants’ favor under Rule 58. Id. at 763.
 To avert traps for the unwary in ambiguous cases, we treat the court’s
 decision/judgment on “all claims” as final and appealable.
         This conclusion is undisturbed by our court’s non-precedential opin-
 ion in King/Morocco v. Banner of N.O., L.L.C., 786 F. App’x 27 (5th Cir.
 2019), which Wolters Kluwer cites. According to that opinion, “an appeal
 from grant of a motion to dismiss without prejudice to refile . . . is not a final
 judgment because ‘the district court did not adjudicate or dispose of any sub-
 stantive issues on the merits.’” Id. (quoting Telles v. City of El Paso, 164 F.
 App’x 492, 495 (5th Cir. 2006) (unpublished)). 1 Whatever the merit of the
 internally quoted principle, though, it cannot be applied, as King/Morocco


         1
           Telles is not only non-precedential, but also clearly distinct. It involved “an appeal
 from a denial of a motion without prejudice to refile.” 164 F. App’x 492, 495 (5th Cir.
 2006) (emphasis added). Such a decision is likely to be “tentative, informal or incomplete”
 and thus unappealable under Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546,
 69 S. Ct. 1221, 1225 (1949), as well noted in Telles, 164 F. App’x at 495. Cohen is also cited
 in King/Morocco, but there its only work is to announce a general principle not clearly
 applicable to the case at hand. See 786 F. App’x at 28.




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                                     No. 20-30078


 applies it, out of line with the Supreme Court’s holding in United States v.
 Wallace & Tiernan Co. In that case, the fact “[t]hat the dismissal was without
 prejudice to filing another suit [did] not make the cause unappealable, for de-
 nial of relief and dismissal of the case ended this suit so far as the District
 Court was concerned.” 336 U.S. 793, 794 n.1, 69 S. Ct. 824, 825 n.1 (1949).
 In this case, too, the district court denied relief, dismissed the case, and
 ended this suit so far as the court was concerned. Under Wallace, such dis-
 position is final and appealable.

        On appeal, the central question is whether the district court erred in
 ruling that UIG failed to state a claim for fraud. Reviewing de novo, we ac-
 cept “all well pleaded facts as true and view[ ] those facts in the light most
 favorable to the plaintiff.” Toy v. Holder, 714 F.3d 881, 883 (5th Cir. 2013)
 (quoting Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010)). Still,
 we agree with the district court.

        “In alleging fraud or mistake, a party must state with particularity the
 circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). Of
 course, as UIG notes, “[m]alice, intent, knowledge, and other conditions of
 a person’s mind may be alleged generally.” Id. Moreover, “[i]f the facts
 pleaded in a complaint are peculiarly within the opposing party’s knowledge,
 fraud pleadings may be based on information and belief.” Tuchman v. DSC
 Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994). All the same, “this
 luxury ‘must not be mistaken for license to base claims of fraud on
 speculation and conclusory allegations.’”          Id. (quoting Wexner v. First
 Manhattan Co., 902 F.2d 169, 172 (2d Cir.1990)).
        In this case, the only relevant fact that UIG has alleged beyond what
 little it alleges “on information and belief” is that Wolters Kluwer provided
 “written certification that the property subject to the loan was not in a flood
 hazard area that required flood insurance under FEMA regulations pursuant




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                                         No. 20-30078


 to the Flood Disaster Protection Act of 1973.” That fact alone can ground
 nothing more than speculation as to the cause of the error, and therefore,
 UIG has failed to state a claim for fraud.
         A similar fate meets the rest of the appeal. UIG contends that the
 district court should have allowed it to amend its fraud claim and that it has
 stated a claim for detrimental reliance under Louisiana law. Neither issue
 was presented to the district court, 2 however, and neither will be considered
 first on appeal. 3 See Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243, 257 (5th
 Cir. 2008).
         Finding no error in the district court’s judgment, we AFFIRM.




         2
           For a contrasting example, see the only case cited by UIG, in which the plaintiffs
 “asked the court [in their opposition to the defendant’s motion to dismiss] to grant them
 leave to amend in the event that the complaint failed to ‘comply with the federal rules.’”
 Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996).
         3
           In a future order, to alleviate any possible confusion, a district judge might, in his
 discretion, invite a party to replead within 14 days.




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