Steve D. Thompson Trucking, Inc. v. Dorsey Trailers, Inc. And Dyro-Tech Industries, Inc., D/B/A "Cor Tec"

880 F.2d 818

5th Cir.

1989

Check Treatment

STEVE D. THOMPSON TRUCKING, INC., Plaintiff-Appellee, v. DORSEY TRAILERS, INC. and Dyro-Tech Industries, Inc., d/b/a “Cor Tec“, Defendants-Appellants.

No. 88-4374.

United States Court of Appeals, Fifth Circuit.

Aug. 3, 1989.

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion April 26, 1989, 5th Cir., 870 F.2d 1044)

appeal. This order is stayed, however, until all appeals have been exhausted or the time for taking such appeals has expired. (Emphasis added.)

An appealable final decision under 28 U.S.C. § 1291 is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.

Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945). By its own terms, therefore, the January 15, 1986 order constituted an appealable final decision not just as to the award of the fund balance to CFT but also as to the district court‘s determination in its June 26, 1986 order that neither Southwest nor class counsel had any equitable claim to the fund balance.

Moreover, we have jurisdiction of the appeal from the April 17, 1987 order denying class counsel‘s application for attorney‘s fees from TWU. The April 17 order also was a final decision under

Catlin, supra, because it decided the merits of class counsel‘s claim against TWU and left nothing for the district court to do with respect to that petition for attorneys’ fees. In sum, by virtue of the district court having rendered final decisions in this case and the parties having timely appealed them, the district court relinquished its jurisdiction, , and we assumed it.

The question thus is not whether we have jurisdiction but whether it is appropriate for us to approve the settlement given the Rule 23(e) provision that “a class action shall not be dismissed or compromised without the approval of the court....” The purpose of Rule 23(e) is “to protect the nonparty members of the class from unjust or unfair settlements affecting their rights.”

Piambino v. Bailey, 610 F.2d 1306, 1327 (5th Cir.1980) (citing 7A C. Wright and A. Miller, Federal Practice and Procedure § 1797 at 226 (1972). Ordinarily, some proceedings, or at least “familiarity with the litigants and their strategies, positions and proofs” are required to accomplish this objective. See . As we noted above, however, in the instant case, a fairness hearing with respect to the settlement of the class claims was duly held, and the fund completely discharged its obligations to the class some six years ago. This action thus lost its class character long ago. Therefore, a remand is unnecessary to protect the interests of the class members. Compare . From the evidence in the record, we can easily determine whether the settlement is fair, adequate, and reasonable, see , and under the circumstances we believe that it is appropriate for us to do so.

IV

In accordance with the foregoing, we REVERSE and VACATE the district court‘s order of January 15, 1987, and Part II of its order of June 26, 1986; and approve the settlement outlined herein.

REVERSED AND VACATED.

William E. Brown, Noel J. Darce, C. Lawrence Orlansky, Steven D. Orlansky, Stone, Pigman, Walther, Wittmann & Hutchinson, New Orleans, La., for Dorsey Trailers, Inc.

Raymond J. Salassi, Jr., Covert J. Geary, Jones, Walker, Waechter, Poitevent, Carrere & Denergre, New Orleans, La., for “Cortec” Inc. and Dyro-Tech Industries, Inc.

Jarrell E. Godfrey, Jr., Chaffe, McCall, Phillips, Tolar & Sarpy, New Orleans, La., for Steve D. Thompson Trucking, Inc.

Before BROWN, JOHNSON, and DAVIS, Circuit Judges.

JOHNSON, Circuit Judge:

In denying the petition for rehearing and suggestion for rehearing en banc, we note that a prior decision of this Court might be construed as somewhat incongruent with the result we reach in the instant case. In

Henson v. Columbus Bank, 651 F.2d 320 (5th Cir. Unit B 1981), the plaintiff Henson filed suit first in a Georgia federal district court alleging truth in lending violations and pendent state law based claims against the defendant bank. The Georgia federal district court declined to exercise pendent jurisdiction over Henson‘s state law based claims. Thereafter, Henson filed a duplicative suit in a Georgia state trial court. The Georgia state trial court dismissed Henson‘s action on limitations grounds. Again pursuing his action in the Georgia federal district court, Henson received a jury verdict in his favor and the court entered judgment on the verdict. On appeal to this Court, the defendant bank argued that the Georgia state court‘s dismissal on limitations grounds was res judicata as to Henson‘s claims in Georgia federal district court. Unpersuaded by the defendant bank‘s contentions in that regard, we affirmed the Georgia federal district court citing section 49, comment (a) of the Restatement of Judgments (1942) which provides that dismissal of a cause of action on limitations grounds in one state does not preclude a plaintiff from maintaining the same cause of action in another state which has a more favorable period of limitations.

We note that the facts in Henson are distinguishable from the facts presented by the instant case. In Henson, the plaintiff proceeded from Georgia federal district court to Georgia state court and back to the Georgia federal district court. In contrast, the plaintiff in the instant case attempted to move from a Louisiana federal district court to a Mississippi federal district court. Our opinion today should not be read as departing from the Restatement approach summarized above as applied to duplicative actions in state courts in different states. Rather, our holding today merely stands for the proposition that a dismissal on statute of limitations grounds in federal court (Louisiana) is a final adjudication on the merits, particularly where, as is the case in the instant appeal, the federal district court (Louisiana) dismissed the plaintiff‘s complaint with prejudice.

Shoup v. Bell & Howell, Co., 872 F.2d 1178 (4th Cir.1989), the Fourth Circuit was confronted with an appeal which was procedurally an exact duplicate of the instant case. In Shoup, the plaintiff filed a products liability action in a Pennsylvania state court and the defendant successfully removed to a federal district court sitting in diversity in Pennsylvania. The Pennsylvania federal district court dismissed the complaint on limitations grounds. Thereafter, the plaintiff filed a duplicative action in a Maryland federal district court likewise sitting in diversity. The Maryland federal district court allowed the case to proceed. However, the Fourth Circuit reversed holding that the dismissal on limitations grounds by the Pennsylvania federal district court was a decision on the merits. Accordingly, the Fourth Circuit, noting that the controversy before it was one for which the doctrine of res judicata was designed, held that res judicata barred the subsequent action in Maryland federal district court.¹ See , , , . See also Restatement (2d) of Judgments, section 87 (federal law determines the effects under the rules of res judicata of a judgment of a federal court).

Because we conclude that Henson is distinguishable from the case at bar, and because we are persuaded that Shoup is the better course to follow, we deny the petition for rehearing. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Federal Rules of Appellate Procedure and Local Rule 35) the suggestion for rehearing en banc is DENIED.

JOHN R. BROWN, Circuit Judge, dissenting.

My previous limited concurrence now turns into a dissent.

Henson v. Columbus Bank, 651 F.2d 320 (5th Cir.1981) announced the correct rule of law and one which we ought to have followed. Moreover, in the light of our Holy Rule that one panel does not overrule an earlier panel it is not only persuasive as stare decisis. It is binding as the law of the Medes and Persians which altereth not.

The effort to distinguish this binding precedent is not rationally based. It rests on the theory that in Henson the suit was first filed in the Georgia Federal Court, then later in a Georgia state court, whereas in the instant cases, both cases were filed in a federal court, the first in Louisiana, the second in Mississippi. This effort to alter substantive law by metaphysical wizardry ignores the accepted principle that in diversity matters a federal district court is just another court of the state in which it sits.

In Henson the Georgia state court decision that the case was barred by the statute of limitations was not res judicata in the Georgia federal district court. It was not res judicata, not because of the distinct creations of the two tribunals. Rather, it was because dismissal of a cause of action on limitation grounds in one state does not preclude a plaintiff from maintaining the same cause of action in another state which has a more favorable period of limitations. Restatement of Judgments, § 49 Comment (a) (1942).

If Henson is the law—and this panel in the accompanying order denying rehearing does not even begin to impugn it—our instant decision cannot stand. We either give way to Henson or en banc rehearing is inevitably demanded.

Notes

To underscore the striking similarity between the Shoup case and the instant appeal, we quote the following language from Shoup:
In this case we must determine if a dismissal by one federal court on statute of limitations grounds bars subsequent litigation of the same claim between the same parties in a second federal forum. The district court held it does not. We reverse and hold that pursuant to Fed.R.Civ.P. 41(b) the earlier statute of limitations ruling is a judgment on the merits subject to claim preclusion.
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