United States Court of Appeals

for the Fifth Circuit

No. 20-50077

Jose Luis Torres, 

Plaintiff—Appellant,

versus

Lowe’s Home Centers, L.L.C., 

Defendant—Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 3:18-CV-366

Before Jones, Smith, and Elrod, Circuit Judges.

Per Curiam:*

Jose Luis Torres appeals the district court’s dismissal of his claims 

under Federal Rule of Civil Procedure 41(b) for lack of prosecution. We have 

jurisdiction to consider the appeal and, for the reasons stated below, we 

AFFIRM the district court’s judgment.

* Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 4, 2021

Lyle W. Cayce

Clerk

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I.

Torres brought this case in August 2018 in Texas state court. He 

alleged that he was injured while shopping at Lowe’s “when a piece of chain 

holding woodplanks [sic] on top of an elevated shelf display broke off, causing 

the wood planks to fall.” Torres asserted various negligence claims and 

sought damages up to $150,000 for his injuries. Torres named as defendant 

“Lowe’s Companies Inc. d/b/a/ Lowe’s.”

In November 2018, a different entity, “Lowe’s Home Centers, LLC,” 

timely removed the action to federal court. In its notice of removal, Lowe’s 

Home Centers (Lowe’s) asserted that it was the proper defendant identified 

in Torres’s complaint. It further asserted that diversity jurisdiction existed 

because Lowe’s Home Centers is a limited liability company whose “sole 

member” is Lowe’s Companies, Inc., a corporation headquartered and 

incorporated in North Carolina. Torres did not oppose removal or otherwise 

challenge that Lowe’s Home Centers was the proper defendant.

Following an order from the district court in January 2019, the parties 

agreed to serve initial disclosures, as required by Federal Rule of Civil 

Procedure 26, by February 22, 2019. The district court subsequently entered 

a scheduling order which set discovery completion deadlines in November

2019 and filing deadlines for dispositive motions in December 2019.

On December 9, 2019, Lowe’s moved to dismiss the case for lack of 

prosecution under Federal Rule of Civil Procedure 41(b) because Torres had 

failed to serve his required initial disclosures—despite multiple requests 

from opposing counsel to do so—and had failed to take a single deposition or 

otherwise pursue the case. Lowe’s separately moved for summary judgment, 

citing Torres’s failure to present any evidence to sustain his negligence 

claims. Torres did not file an opposition to either motion.

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On January 10, 2020, the district court granted the unopposed motion 

to dismiss, denied the motion for summary judgment as moot, and closed the 

case. Judgment was entered against Torres the same day. Torres timely 

appealed.

II.

Both parties argue that this court lacks appellate jurisdiction. As 

always, we must address the scope of our jurisdiction first.

Torres argues that the district court lacked jurisdiction over Lowe’s 

Home Centers because Torres named a different entity, Lowe’s Companies, 

Inc., in his original complaint. However, Torres did not object when Lowe’s 

Home Centers asserted in its notice of removal that it was the proper 

defendant. Because Torres did not raise this claim before the district court, 

we need not consider it for the first time on appeal. See Stewart Glass & 

Mirror, Inc. v. U.S. Auto Glass Disc. Ctrs., Inc., 200 F.3d 307, 316–17 (5th Cir. 

2000) (“It is a bedrock principle of appellate review that claims raised for the 

first time on appeal will not be considered.”); see also Leverette v. Louisville 

Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). Moreover, Torres’s brief does 

not dispute that diversity jurisdiction pursuant to 28 U.S.C. § 1332 existed at 

the time of removal. Cf. Arena v. Graybar Elec. Co., 669 F.3d 214, 223 (5th 

Cir. 2012) (“A litigant generally may raise a court’s lack of subject matter 

jurisdiction at anytime in the same civil action, even initially at the highest 

appellate instance.”) (quoting Grupo Dataflux v. Atlas Global Grp., L.P., 541 

U.S. 567, 576 (2004)).1

1 On appeal, Torres does not dispute that “[t]he entity Torres sued was a 

corporation [Lowe’s Companies, Inc.] incorporated in the State of North Carolina, not a 

limited liability company.” On the record here, even if Lowe’s Companies, Inc. were a 

proper defendant, diversity of citizenship still exists because Torres is a citizen of Texas.

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Alternatively, Torres argues that the district court’s order is not a final 

judgment because it did not dispose of all of his claims. Not so. Both the 

order and judgment dismissed all of “Plaintiff’s claims in the abovecaptioned action” and closed the case. Consequently, appellate jurisdiction 

exists. 28 U.S.C. § 1291.

Lowe’s argues that we lack appellate jurisdiction because Torres did 

not designate the relevant order in its notice of appeal. Federal Rule of 

Appellate Procedure 3 requires that the appellant’s notice of appeal must 

“designate the judgment, order, or part thereof being appealed.” Fed. R. 

App. P. 3(c)(1)(B). Torres designated the district court’s “order granting 

summary judgment” in his notice of appeal, but the district court ruled only 

on the motion to dismiss and denied the summary judgment motion as moot. 

While Lowe’s is correct that no such summary judgment order exists, the 

notice specified that Torres seeks review of the order “entered in this action 

on the 10th day of January, 2020,” which is the date of the district court’s 

dismissal order. Lowe’s does not aver that it was prejudiced by or misled by 

this error; on the contrary, Lowe’s fully briefed the issues concerning the 

dismissal order here. Consequently, we find that Torres’s error does not bar 

appellate review. See Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th 

Cir. 1991) (“If there is an error in designating a judgment appealed, the error 

should not bar an appeal if the intent to appeal a particular judgment can be 

fairly inferred, and if the appellee is not prejudiced or misled by the 

mistake.”).

III.

Satisfied of our jurisdiction, we turn to the merits of Torres’s appeal. 

This court has “made clear that any issue not raised in an appellant’s opening 

brief is forfeited.” United States v. Bowen, 818 F.3d 179, 192 n.8 (5th Cir. 

2016).

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Torres fails to brief this court on whether the district court was right 

to dismiss his case based on Lowe’s motion to dismiss. Having failed to brief 

the court on the relevant issue, Torres cannot prevail on appeal. See Cinel v. 

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994) (“A party who inadequately briefs 

an issue is considered to have abandoned the claim.”). We AFFIRM the 

district court’s judgment.

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