Fairley v. Louisiana State

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

August 6, 2008

No. 07-30589 Charles R. Fulbruge III

Clerk

ROBERT FAIRLEY; RONALD GEORGE, on their own behalf(s) and on

behalf of all individuals similarly situated; NATHANIEL CARR; KEVIN

GREEN; FAY HARDY; TYRELL LEBLANC; LADOIA SMITH; CLIFTON

THOMPSON

Plaintiffs - Appellants

BARBARA ANN ANDERSON; ET AL

Appellants

v.

RICHARD L STALDER, Secretary Department of Public Safety and

Corrections

Defendant - Appellee

Appeal from the United States District Court for the

Eastern District of Louisiana

No. 2:06-cv-3788

Before SMITH, WIENER, and HAYNES, Circuit Judges.

PER CURIAM:*

*

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.

No. 07-30589

Plaintiffs-Appellants Robert Fairley and Ronald George, on their own

behalves and on behalf of all individuals similarly situated, et al. (“Fairley”)

appeal dismissal of their claims against Louisiana Department of Public Safety

and Corrections Secretary Richard Stalder, in both his individual and official

capacities.1 Fairley contends that (1) the State of Louisiana waived its sovereign

immunity either constructively or by its litigation conduct, (2) Congress

abrogated Louisiana’s sovereign immunity by attaching “strings” to funds it

granted to the State, (3) Louisiana is a “person” subject to suit under 42 U.S.C.

§ 1983 (2000), and (4) the claims against Stalder in his individual capacity were

improperly dismissed. Concluding that these contentions are wholly without

merit, with some bordering on frivolous, we affirm their dismissal by the district

court.

I. FACTS AND PROCEEDINGS

Fairley filed a putative class action in the district court on behalf of

inmates and former inmates of penal facilities in Orleans Parish2 prior to and

in the aftermath of Hurricane Katrina. The complaint sought damages

stemming from the alleged deprivation and violation of federal constitutional

rights and rights under Louisiana law caused by the State of Louisiana, the

1

Fairley also contends that his claims against the State of Louisiana and the Louisiana

Department of Public Safety and Corrections were improperly dismissed. As he only urges

jurisdiction pursuant to 28 U.S.C. § 1291 as the basis for this appeal, however, dismissals

outside of the Rule 54(b) partial final judgment entered by the district court cannot be

considered by us at this juncture. Although it is possible for a district court’s order to be final

without explicit reference to Rule 54(b), counsel is required to direct our attention to language

that “either independently or together with related parts of the record reflects the trial judge’s

clear intent to enter a partial final judgment under Rule 54(b).” Kelly v. Lee’s Old Fashioned

Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en banc). The fact that the district

court did enter a Rule 54(b) partial final judgment as to some of the claims dismissed in its

earlier orders will be taken by us as some evidence that the court did not intend to create a

final judgment for our review of the claims dismissed but not part of the Rule 54(b) partial

final judgment.

2

Each of the penal facilities named appears to be a unit within the Orleans Parish

Criminal Sheriff’s Office (the “OPCSO”).

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No. 07-30589

Louisiana Department of Public Safety and Corrections (the “DOC”), Stalder, in

his individual and official capacities, the Orleans Parish Criminal Sheriff’s

Office, Orleans Parish Criminal Sheriff Marlin Gusman, in his individual and

official capacities, and unnamed deputies, officers, and troopers.

The complaint alleged that despite a declaration of emergency by

Louisiana Governor Kathleen Blanco on August 26, 2005, and a mandatory

evacuation order issued by New Orleans Mayor Ray Nagin on August 28, 2005,

both in advance of Hurricane Katrina’s landfall on August 29, 2005, the

defendants failed to plan for evacuation of the plaintiffs, to evacuate the

plaintiffs, and to provide food, water, clothing, bedding, sanitary facilities, and

medication. The conditions Fairley describes after Katrina are deeply troubling:

abandonment by the defendants; incarceration under lock and key in fetid

conditions without food, water, or sanitary facilities and without information as

to when assistance might come; and immersion in “toxic soup” during evacuation

to a filthy, hot, and uncomfortable highway overpass. He claims, under various

theories, that these acts and omissions violated his rights, and those of others

similarly situated, under the Fourth, Eighth, and Fourteenth Amendments to

the United States Constitution, as well as under Louisiana law. Suit for relief

on the federal claims was brought pursuant to 42 U.S.C. § 1983, and

supplemental jurisdiction was asserted for the state law claims.

Louisiana, the DOC, and Stalder, in his official capacity, moved to dismiss

the state law claims under Federal Rule of Civil Procedure 12(b)(1) and to

dismiss the § 1983 claims under Rule 12(b)(6), asserting sovereign immunity and

contending that Louisiana and the DOC are not “persons” susceptible to suit

under § 1983. Stalder also moved under Rule 12(b)(6) to dismiss all federal

claims against him in his individual capacity under the doctrine of qualified

immunity and to dismiss all state claims under Louisiana Revised Statutes

sections 9:2798.1 and 29:735.

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No. 07-30589

Fairley then filed a first amended complaint, which added additional

plaintiffs. After further motion practice, the magistrate judge to whom the case

had been referred ordered Fairley to file another amended complaint to comply

with the requirement, for cases in which qualified immunity has been asserted

as a defense, that plaintiffs plead “with factual detail and particularity, not mere

conclusionary allegations”3 any claims against Stalder in an individual capacity.

This second amended complaint was filed and included, inter alia, new claims

for prospective injunctive relief. Fairley’s effort to comply with the heightened

pleading standard for qualified immunity cases consisted of a four-line

paragraph purporting to incorporate by reference, in toto, the American Civil

Liberties Union (“ACLU”) National Prison Project report entitled Abandoned &

Abused: Orleans Parish Prisoners in the Wake of Hurricane Katrina.

The magistrate judge recommended that all state and federal claims

against Louisiana and the DOC be dismissed on grounds of sovereign immunity,

and that all claims against Stalder in his official capacity be dismissed because

he is not a person susceptible to suit under § 1983 in his official capacity. The

district court adopted the magistrate judge’s report and recommendations and

dismissed all claims against Louisiana, the DOC, and Stalder in his official

capacity pursuant to Rules 12(b)(1) and 12(b)(6). The district court also

dismissed the claims against Stalder in his individual capacity under Rule

12(b)(6). Leave to amend a third time was denied, and the district court

dismissed Fairley’s claims against Stalder for prospective injunctive relief.4 An

unopposed motion for a partial final judgment under Rule 54(b) as to all claims

3

The magistrate judge was quoting Anderson v. Pasadena Independent School District,

184 F.3d 439, 443 (5th Cir. 1999) (internal quotation marks omitted).

4

The basis for this dismissal does not appear in the record, but from the motion Stalder

filed in the district court, it appears to have been based on Rule 12(b)(6).

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No. 07-30589

for damages and injunctive relief against Stalder in his individual and official

capacities was then granted. This timely appeal followed.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s dismissal of claims under Rules

12(b)(1) and 12(b)(6).5 We “accept all well-pleaded facts as true, viewing them

in the light most favorable to the plaintiff” and do not dismiss a claim “unless

the plaintiff would not be entitled to relief under any set of facts or any possible

theory that it could prove consistent with the allegations in the complaint.”6

“However, conclusory allegations will not suffice to prevent a motion to dismiss,

and neither will unwarranted deductions of fact.”7

When claims have been asserted under § 1983 against a government

official, plaintiffs “must plead specific facts that, if proved, would overcome the

individual defendant’s immunity defense; complaints containing conclusory

allegations, absent reference to material facts, will not survive motions to

dismiss.”8 “When a public official pleads the affirmative defense of qualified

immunity in his answer [and] the district court . . . require[s] the plaintiff to

reply to that defense in detail[,] . . . . the reply must be tailored to the assertion

of qualified immunity and fairly engage its allegations.”9 Finally, “[i]n deciding

a motion to dismiss[,] the court may consider documents attached to or

5

Bombardier Aerospace Employee Welfare Benefits Plan v. Ferrer, Poirot & Wansbrough,

354 F.3d 348, 351 (5th Cir. 2003); Ramming v. United States, 281 F.3d 158, 161 (5th Cir.

2001).

6

Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999).

7

United States ex rel. Willard v. Humana Health Plan of Tex., Inc., 336 F.3d 375, 379

(5th Cir. 2003) (internal quotation marks and citations omitted).

8

Geter v. Fortenberry, 849 F.2d 1550, 1553 (5th Cir. 1988).

9

Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995).

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No. 07-30589

incorporated in the complaint and matters of which judicial notice may be

taken.”10

B. Merits

1. Official-Capacity Claims Against Stalder

Fairley asserts claims against Stalder in his official capacity for both

damages and injunctive relief.

a. Damages

We begin an analysis of Fairley’s claim against Stalder in his official

capacity for damages under § 1983 by quoting long and clearly established

Supreme Court precedent on the matter: “[N]either a State nor its officials

acting in their official capacities are ‘persons’ under § 1983.”11 As § 1983 only

provides a remedy against a “person,” the dismissal of Fairley’s § 1983 claims

was indisputably proper.

The claims asserted against Stalder in federal court on state law

grounds12 for money damages, although not barred by Will v. Michigan

Department of State Police,13 must still overcome Louisiana’s Eleventh

Amendment immunity.14 Fairley asserts five theories for his conclusion that this

immunity is overcome: (1) Louisiana has waived its sovereign immunity by

10

Humana Health Plan of Tex., 336 F.3d at 379.

11

Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989) (barring suits for money

damages under § 1983 against states and state officials in their official capacity).

12

Fairley claims that the alleged federal constitutional torts were also “practiced

intentionally, with malice, and/or with reckless disregard for and/or with deliberate

indifference to plaintiffs’ federally protected rights, as well as plaintiffs’ rights under State

law.”

13

491 U.S. at 71. The state law claims are not barred by Will because they are not

brought under § 1983.

14

See Edelman v. Jordan, 415 U.S. 651, 663-64 (1974) (barring suits against states and

state officials in their official capacity for damages without mention of the state or federal

nature of the claims); Hughes v. Savell, 902 F.2d 376, 378 (5th Cir. 1990).

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No. 07-30589

litigating other Hurricane Katrina-related suits in federal court as a plaintiff; (2)

Louisiana has constructively waived its sovereign immunity by participating in

various federal programs; (3) Louisiana has waived its sovereign immunity by

statute and constitutional provision; (4) Congress abrogated Louisiana’s

sovereign immunity as to the issues in the case, namely, flood control, hurricane

protection, prison reform, and disaster preparation and response; and (5) the

federal judiciary has “badly misconstrued” the Eleventh Amendment or it “does

not apply under the facts and circumstances of this case.” As to the final

“theory,” whatever its merit, we are unable to act on it as “only the Supreme

Court may overrule a Supreme Court decision.”15 And, as we show below,

Supreme Court precedents clearly speak to each of Fairley’s contentions.

The first theory fails when analyzed as a litigation-conduct waiver.16

There is an interesting argument to be made that invocations of federal

jurisdiction in related suits waive sovereign immunity as to other suits. This

15

Medellin v. Dretke, 371 F.3d 270, 280 (5th Cir. 2004).

16

See Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 619 (2002) (“[A]

State’s voluntary appearance in federal court . . . [is] a waiver of its Eleventh Amendment

immunity.” (emphasis added)); see also id. (“[A] State waives any immunity respecting the

adjudication of a ‘claim’ that it voluntarily files in federal court.” (emphasis added) (internal

quotation marks omitted)); Gunter v. Atl. Coast Line R.R. Co., 200 U.S. 273, 284 (1906)

(“[W]here a state voluntarily becomes a party to a cause, and submits its rights for judicial

determination, it . . . cannot escape the result of its own voluntary act by invoking the

prohibitions of the Eleventh Amendment.” (emphasis added)); cf. College Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675 (“[O]ur test for determining

whether a State has waived its immunity from federal-court jurisdiction is a stringent one.”

(internal quotation marks omitted)). Clearly, if invocations of a federal court’s jurisdiction in

one instance waived a state’s sovereign immunity for all other suits, the exception would

swallow the rule and the test for waiver would hardly be “stringent.” Fairley’s citation to

Clark v. Barnard, 108 U.S. 436 (1883), is inapposite, as Louisiana has not intervened in the

instant suit. If, for example, Louisiana should intervene in a case and assert a claim against

the plaintiffs, but simultaneously assert a defense of sovereign immunity against claims

brought against it, a very different case, under Clark and Lapides, would be present. Further,

if this case were consolidated with a case in which Louisiana were a plaintiff, perhaps a

different case would be present before us. Whether Lapides goes much further than Clark is

a question on which we do not pass today.

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No. 07-30589

argument emerges from language in Lapides v. Board of Regents of the

University System of Georgia, in which the Supreme Court distinguished

litigation-conduct waivers from other kinds of (repudiated) constructive

waivers.17 There the Court said:

[A]n interpretation of the Eleventh Amendment that finds waiver

in the litigation context rests upon the Amendment’s presumed

recognition of the judicial need to avoid inconsistency, anomaly, and

unfairness, and not upon a State’s actual preference or desire, which

might, after all, favor selective use of ‘immunity’ to achieve

litigation advantages.18

Fairley, however, has made no effort to link other pending Katrina litigation to

this case in a way that would highlight potential “inconsistency, anomaly, and

unfairness.” He asserts that this litigation and the Louisiana v. United States19

cases arise out of the “same transactions and occurrences” and are “logically

related” to this case because they all relate to the failures of levees and retaining

walls after Hurricane Katrina. Additionally, he contends that the evidence in

these cases will be the same as in the instant litigation. These observations,

without more particularized development to demonstrate the potential for

“inconsistency, anomaly, and unfairness” (particularly anomaly, which we do

not, without more, see here), or without an elaboration of why the cases arise out

of the “same transactions and occurrences,” are woefully insufficient to trump

Louisiana’s sovereign immunity.

The second theory, constructive waiver, is similarly meritless. Even

if constructive waiver arguments remain viable,20 a waiver of this type may be

17

535 U.S. at 620.

18

Id.

19

E.g., Louisiana v. United States, No. 2:07-cv-05040 (E.D. La. filed Aug. 29, 2007).

20

See Edelman v. Jordan, 415 U.S. 651, 673 (1974) (“Constructive consent is not a

doctrine commonly associated with the surrender of constitutional rights and we see no place

for it here.”).

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found only when a congressional desire to make states liable is found in the

“unmistakable language in the statute itself.”21 That not being the case here (or,

counsel not having invited our attention to any such statutory language),

discovery is unnecessary and dismissal is appropriate.22

The third waiver argument advanced by Fairley turns on the

contention that Louisiana has waived sovereign immunity expressly by

constitutional provision and statute. Under the Supreme Court’s rubric,

however, an express waiver may be found only when a provision expresses “the

State’s intention to subject itself to suit in federal court.”23 There is no express

consent to suit in federal court in section 10, article XII of the Louisiana

Constitution or Louisiana Revised Statutes section 9:2798.1, the provisions cited

by Fairley. Further, Louisiana Revised Statutes section 13:5106(A) provides:

“No suit against the state or a state agency or political subdivision shall be

21

Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985). In fact, it is now more

difficult for Congress to comply with this requirement from Atascadero after Seminole Tribe

v. Florida, 517 U.S. 44, 55 (1996), which ended the Court’s experimentation with abrogation

through pre-Eleventh Amendment congressional powers.

22

Fairley does not make clear in his briefs whether he is arguing that a constructive

waiver has arisen because of participation in the programs or because of an actual agreement

between Louisiana and the United States. In a late filing with this court, devoid of argument

or specific citations, Fairley’s counsel provided a copy of an article by Gil Seinfeld, Waiver-in-

Litigation: Eleventh Amendment Immunity and the Voluntariness Question, 63 OHIO ST. L.J.

871 (2002). Perhaps the only basis of support in it for Fairley’s request for discovery is the case

Innes v. Kansas State University (In re Innes), 184 F.3d 1275 (10th Cir. 1999). There, the

Tenth Circuit found a waiver of sovereign immunity in a contract between Kansas State

University and the United States. We question the reasoning of the court in that case,

particularly as Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004), addressed the

same situation with different, and broader, reasoning. See Susan E. Hauser, Necessary

Fictions: Bankruptcy Jurisdiction After Hood and Katz, 82 TUL. L. REV. 1181, 1202-09 (2008).

Nevertheless, it is important to note that even Innes appears to recognize the necessity of a

specific statutory or constitutional authorization for state officials to waive sovereign immunity

by contract. See Innes, 184 F.3d at 1280 (“[T]hese cases . . . firmly establish that a state agent

acting with proper authorization can effectuate a waiver . . . .” (emphasis added)). Fairley has

not brought to our attention any authorization to enter into an agreement that waives

immunity.

23

Atascadero, 473 U.S. at 241 (emphasis in original).

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instituted in any court other than a Louisiana state court.” These are the

reasons that we have unequivocally stated, on numerous occasions, that

Louisiana has not waived its Eleventh Amendment immunity in this manner.24

Finally, the contention that Congress has abrogated Louisiana’s

immunity in the areas of flood control, hurricane protection, prison reform, and

disaster preparation and response is feckless. Undoubtedly, Congress may

abrogate state sovereign immunity,25 but only pursuant to a post-Eleventh

Amendment grant of congressional power and then only through an unequivocal

expression of intent to exercise of that power.26 There are no allegations that

flood control, hurricane protection, and disaster preparation and response

statutes were enacted by Congress pursuant to a post-Eleventh Amendment

power or that Congress attempted to abrogate, unequivocally or otherwise, state

sovereign immunity from suit in these areas. Nevertheless, the plaintiffs

request discovery on these matters. As a statute “must contain an unequivocal

statement of congressional intent to abrogate,”27 however, discovery is

unwarranted here and dismissal is appropriate.

b. Injunctive Relief

24

E.g., Delahoussaye v. City of New Iberia, 937 F.2d 144, 147 (5th Cir. 1991).

25

See Seminole Tribe v. Florida, 517 U.S. 44, 55 (1996).

26

See id. at 55, 65, 72.

27

Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 277 (5th Cir. 2005).

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Injunctive relief against Stalder is also unwarranted.28 Ex Parte Young

does permit suits against state officials to force compliance with the Constitution

and federal law,29 but Stalder is not the proper party from whom to obtain relief

from harms Fairley may have suffered (or may fear suffering) in OPCSO

facilities. We find instructive district courts opinions that describe in some

detail the Louisiana framework governing parish penal facilities. In Galo v.

Blanco, for example, the court dismissed claims against Stalder, Governor

Blanco, and Mayor Nagin because “there is no legal basis for holding [the

defendants] liable for the conditions of plaintiff’s confinement within the Orleans

Parish Prison system.”30 We have examined Louisiana Revised Statutes sections

15:702, 15:704, 33:1435, and 33:4715, and we agree that day-to-day operation of

the parish prison is the responsibility of the local sheriff, and that financing and

maintenance are the responsibility of the local governing authority. Our

analysis of sections 15:826 and 15:827, which establish the services and duties

of the Department of Public Safety and Corrections, and section 15:823, which

establishes the duties of the Director of Corrections, further supports this view.

Accordingly, Stalder is not in a position to provide the requested relief.31

28

The claims of former inmates for injunctive relief are moot. See Herman v. Holiday,

238 F.3d 660, 665 (5th Cir. 2001); Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078,

1084 (5th Cir. 1991); Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988). As some of the

named plaintiffs may still be incarcerated, although whether or not that is so is hard to tell

from Fairley’s briefing, we nevertheless explain why the claims would fail even if they were

not moot.

29

209 U.S. 123, 155-56, 166-67 (1908).

30

No. Civ.A. 06-4290, 2006 WL 2860851, at *2 (E.D. La. Oct. 4, 2006); Broussard v.

Foti, No. Civ.A. 00-2318, 2001 WL 258055, at *1-2 (E.D. La. Mar. 14, 2001).

31

See Broussard, 2001 WL 258055, at *1-2; see also O’Quinn v. Manuel, 773 F.2d 605,

609 (5th Cir. 1985) (“The administration of the jails is the province of the sheriff.”); Howard

v. Fortenberry, 723 F.2d 1206, 1212-13 (5th Cir. 1984), vacated in part, 728 F.2d 712 (5th Cir.

1984) (noting the absence of a duty for the Secretary of the Louisiana Department of Public

Safety and Corrections to supervise local prison officials). It is questionable whether anyone

can be ordered to implement some of Fairley’s requests. For example, it is doubtful that a

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No. 07-30589

2. Individual-Capacity Claims32

Counsel for Fairley has abandoned any quarrel with the district court’s

determination that Stalder’s defense of qualified immunity for federal claims

against him individually was not overcome by Fairley’s responsive pleading.

Our searching review reveals no argument by Fairley, adequately briefed on

appeal,33 that engages this dispositive issue. Fairley’s initial brief does not even

contain the phrase “qualified immunity.” Any references to Stalder lacking

immunity generally are beyond conclusional. Fairley’s reply brief, at which

point it was too late to preserve the issue in any event,34 is scarcely better.

Accordingly, we will not disturb the district court’s determination that Fairley

did not adequate reply to Stalder’s defense of qualified immunity.

As for the state law claims against Stalder, Fairley has again failed to

brief the issue adequately. The district court was not able to find any allegations

of action or inaction by Stalder individually in the complaint or in the ACLU

report that was purported to be incorporated by reference.35 Other than a few

district court could enjoin a person to “[b]egin to view detention as a process rather than a

place.”

32

It appears at one point that Fairley is requesting injunctive relief against Stalder in

an individual capacity. As Stalder has no control over OPCSO facilities in his official capacity,

it is odd to suggest that he might have such control in an individual capacity. The claim, if in

fact made, is frivolous.

33

See Audler v. CBC Innovis Inc., 519 F.3d 239, 255 (5th Cir. 2008) (“A party waives

an issue if he fails to adequately brief it. Though pro se litigants’ briefs are liberally construed

so as to avoid waiver of issues, the indulgence for parties represented by counsel is necessarily

narrower.” (internal quotation marks and citations omitted)). Were we to grant the same level

of indulgence that we would to a pro se appellant, the shape of the briefs filed by counsel for

Fairley prevents even a liberal construction from preserving the issue.

34

See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

35

To describe the report as incorporated and properly part of the complaint is to be

generous. It was attached without any particular references or evidence that it contained

material concerning the plaintiffs in the action. We join the district court in condemning this

type of trial practice. And, we analogize this method of pleading to “scattershot” rather than

to “buckshot” as did the district court.

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regurgitations of portions of his complaint, the only remotely relevant portions

of Fairley’s appellate brief are those that state: “The State of Louisiana and

Secretary Stalder, in particular, played a prominent role in what happened, and

what is likely to happen ‘next time.’ . . . ‘[S]omeone’ had to make the decision not

to evacuate the inmates . . . . Other than Sheriff Gusman and/or Secretary

Stalder, who were the ‘someone’s’ who made this moronic and misery-causing

decision?” At best these are the “unwarranted deductions of fact” that are not

considered sufficient to survive a Rule 12(b)(6) challenge. The rest of the

hyperbolized, meandering comments in that section of the brief have to do with

the Eleventh Amendment and counsel’s railings about the perceived injustice of

the heightened pleading rules. Nowhere does Fairley point to a place in the

complaint where he alleges action or inaction by Stalder individually, without

which the state law claims fail.

III. CONCLUSION

For the foregoing reasons, the partial final judgment of the district court,

dismissing all claims against defendant-appellant Richard L. Stalder, is, in all

respects, AFFIRMED. We also GRANT Stalder’s motion to strike sixty-one

individuals from this appeal for want of jurisdiction over them or the order

denying leave to add them below.36 Therefore, the only plaintiffs-appellants

36

We granted, in a per curiam order, Stalder’s motion to strike the eight duplicate

names that appeared in the notice of appeal sent to us. A motion to strike the names of sixty-

one individuals who were not parties to the litigation below was carried with the case. These

individuals were the subject of a failed (third) attempt by Fairley’s counsel to amend the

complaint in the district court. In denying the motion for leave to amend a third time, the

magistrate judge said: “The proposed Third Supplemental and Amending Complaint appears

to be a veiled effort to continue to add party-plaintiffs rather than properly pursue the class

action certification. The repeated addition of named plaintiffs is prejudicial to the defendants

and fails to account for the applicable statute of limitations and the relating-back doctrine . .

. . To allow the plaintiffs to file the Third Supplemental and Amended Complaint would be

prejudicial and futile.” Rather than appeal this determination at the appropriate time,

Fairley’s counsel surreptitiously attempted to add these sixty-one plaintiffs to this appeal.

When caught by counsel for Stalder, counsel for Fairley responded: “[P]laintiffs/appellants were

erroneously denied leave to amend their Complaint . . . . They are aggrieved by this erroneous

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subject to this judgment are Robert Fairley, Ronald George, Fay Hardy, Ladoia

Smith, Nathaniel Carr, Kevin Green, Tyrell LeBlanc, and Clifton Thompson.

ruling . . . . They are ‘appellants’ no matter how one may look at this case.”

Denial of a motion for leave to amend a complaint is ordinarily not immediately

appealable, Wallace v. County of Comal, 400 F.3d 284, 291-92 (5th Cir. 2005), and it is quite

unclear that any cognizable attempt to appeal that denial was made before slapping these

extra names on the case. Further, the Federal Rule of Civil Procedure 54(b) partial final

judgment in the district court did not include denial of this motion. And it is axiomatic that

we only possess appellate jurisdiction, absent another basis urged, over final decisions, making

appeal of this motion for leave to amend improper. See 28 U.S.C. § 1291 (2000). Even if we

did possess jurisdiction, it was clearly not an abuse of discretion for the district court to deny

leave to amend a third time, particularly given counsel’s attempt to add plaintiffs endlessly

without regard for the district court’s prior orders. Therefore, as to this appeal, the sixty-one

individuals are nonparties.

Nonparties may appeal only after satisfying a three-part test that focuses on actual

participation by the nonparties, the equities in favor of hearing them, and the personal stake

of the nonparties in the outcome. See Castillo v. Cameron County, Tex., 238 F.3d 339, 349-50

(5th Cir. 2001). Fairley’s counsel has made absolutely no effort to identify this test or to apply

it, and our sua sponte examination reveals it would be improper to allow these nonparties to

appeal.

We remind counsel of Federal Rule of Appellate Procedure 38 for our purposes, and, for

his purposes, we remind him of Louisiana Rules of Professional Conduct 1.1, 3.1, and 3.3(a)(2).

14