Denial of Rule 54(b) Certification Order Is Not Immediately Appealable — Unsupported Dicta in Prior Decision That Would Create Circuit Split on Issue Construed Away

Lewis v. Sheriff's Department Bossier Parish, 478 Fed. Appx. 809 (5th Cir. 2012):

Although we have not squarely addressed the question of whether a denial of a Rule 54(b) certification motion is immediately appealable, our sister circuits have repeatedly held that the denial of a Rule 54(b) certification is not appealable. See, e.g., McCall v. Deeds, 849 F.2d 1259, 1259 (9th Cir. 1988) ("[T]he denial of Rule 54(b) certification is not appealable."); Makuc v. Am. Honda Motor Co., 692 F.2d 172, 173 (1st Cir. 1982) (finding that the denial of motion for Rule 54(b) judgment is not appealable); Robert Stigwood Grp., Ltd. v. Hurwitz, 462 F.2d 910, 913-14 (2d Cir. 1972) (concluding that since the district court refused to certify the dismissal of a complaint against some, but not all, defendants as final, the appellate court had no jurisdiction to review it); Cruey v. Early, 396 F. App'x 940, 941 (4th Cir. 2010) (per curiam) (unpublished) (finding that court had no jurisdiction to review dismissal of some claims and denial of Rule 54(b) certification); Brunswick Bowling & Billiards Corp. v. Mendes, Inc., No. 95-2209, 1995 U.S. App. LEXIS 35538 (6th Cir. Nov. 21, 1995) (unpublished order) (finding that an "order denying Rule 54(b) certification is not an appealable order"). Dicta in a prior Fifth Circuit opinion, Swope v. Columbian Chemicals Co., 281 F.3d 185 (5th Cir. 2002), states that the denial of a Rule 54(b) motion is "reviewable for abuse of discretion," without explaining when such a review would take place and under what circumstances. Id. at 193. However, Swope fails to cite any authority to support this proposition, nor does it cite to the many circuit decisions finding such a ruling not to be appealable. We find it unlikely that this court would create a circuit split without analyzing the issue in detail or mentioning the numerous cases that reach the opposite result; thus, we construe this as a reference to the abuse of discretion standard underlying a petition for writ of mandamus. In re Volkswagen of America, Inc. 545 F.3d 304, 310 (5th Cir. 2008)(en banc) ("[M]andamus is entirely appropriate to review for an abuse of discretion that clearly exceeds the bounds of judicial discretion."). We now hold that the denial of a motion for a Rule 54(b) judgment is not appealable by way of interlocutory appeal.

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