District Court Order Striking Class Action Allegations but Permitting Named Plaintiffs to Pursue Individual Claims not Appealable thus Requiring Dismissal of Appeal from Class Action Order Fifth Circuit Holds
Plaintiffs filed a class action lawsuit against various defendants alleging that the Army Corps of Engineers had defectively designed and constructed various levee and floodwall systems that failed during a hurricane, resulting in flood damage. In re Complaint of Ingram Barge Co., 517 F.3d 246, 2008 WL 315465, *1 (5th Cir. 2008). Defense attorneys moved to strike the class action allegations and plaintiffs’ demand for a jury trial. Ingram, at *1. The district court granted the motion, but though it struck the class action allegations it permitted the plaintiffs to pursue their claims individually. Id. Plaintiffs appealed, contending that appellate jurisdiction existed under 28 U.S.C. §§ 1291 and 1292(a)(3); defense attorneys moved to dismiss the appeal on the ground that the order striking the class action allegations was not an appealable final decision because the district court permitted plaintiffs to pursue their claims individually. Id. The Fifth Circuit agreed with the defense and dismissed the appeal for lack of jurisdiction.
The Circuit Court noted that plaintiffs had not sought a Rule 54(b) certification, and that while Rule 23(f) confers appellate jurisdiction over orders granting or denying class action certification, appellate review thereunder must be sought within 10 days of entry of the class action certification order. Ingram, at *1. Plaintiffs did not seek such review. Accordingly, the sole issue was whether the district court order striking the class action allegations constituted a final decision within the meaning of § 1291, and the Fifth Circuit held that it did not. Id. Accordingly, it dismissed the appeal for lack of jurisdiction.
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