* 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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30077

 

CLEVELAND FONTENOT, JR.,

Plaintiff-Appellant,

versus

ALBEMARLE CORPORATION,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Middle District of Louisiana

(96-CV-416)

 

May 18, 1999

Before GARWOOD, BARKSDALE and STEWART, Circuit Judges.*

GARWOOD, Circuit Judge:

Cleveland Fontenot, Jr. (Fontenot) appeals from a summary

judgment granted to his former employer Albemarle Corp. (Albemarle)

for federal and state claims related to the termination of his

employment. We affirm.

Facts and Proceedings Below

Fontenot began working for Ethyl Corp. (Ethyl) in 1971. In
2

1994, Ethyl spun off its chemicals division into a separate

corporate entity which became Albemarle. Fontenot moved to

Albemarle shortly after its inception. In 1995, Albemarle

conducted an internal review of its organizational structure and

decided to transfer Fontenot’s duties (purchasing) to another

department. Fontenot’s former position was eliminated and Fontenot

was terminated. Fontenot was then fifty-three years old.

Believing he had been unfairly discriminated against,

Fontenot, represented by counsel, sued Albemarle. Fontenot’s

complaint, filed in April 1996, raised claims under the Age

Discrimination in Employment Act (ADEA), 42 U.S.C. § 12101 et.

seq., the Employee Retirement Income Security Act (ERISA), 29

U.S.C. § 1001 et. seq., and their Louisiana statutory analogues

(collectively, the discrimination claims), as well as other

undefined state tort claims, resulting in physical, mental, and

financial damages (the state law claims). 

Discussion

As a threshold matter, we must determine whether we have

jurisdiction over this appeal. Federal courts are duty bound to

determine their own jurisdiction, and may do so sua sponte if

necessary. See, e.g., Williams v. Chater, 87 F.3d 702, 704 (5th

Cir.1996) (recognizing court’s obligation to inquire into its own

jurisdiction, even where parties fail to raise the issue).

With limited exceptions not relevant here, “[t]he courts of

appeals . . . shall have jurisdiction [only] of appeals from all

final decisions of the district courts of the United States[.]” 28
3

U.S.C. § 1291 (West 1999); Moreau v. Harris County, 158 F.3d 241,

244 (5th Cir. 1998). The question before this Court is whether the

judgment sought to be appealed here is final within the meaning of

28 U.S.C. § 1291.

“A final judgment is one that <ends the litigation on the

merits and leaves nothing for the court to do but execute the

judgment.’” Moreau, 158 F.3d at 244, quoting Coopers & Lybrand v.

Livesay, 98 S.Ct. 2454, (1978). If additional parties or claims

remain before the district court, the judgment is not final and

appealable unless certified under Fed. R. Civ. P. 54(b). See Bader

v. Atlantic International Ltd., 986 F.2d 912, 914-15 (5th Cir.

1993). There is nothing amounting to (or which either party claims

amounts to) a Rule 54(b) certification here. To determine whether

a judgment is final, this Court must ascertain the district court’s

intent. See Moreau, 158 F.3d at 244 (“We have advocated a

practical approach in deciding issues of finality. A judgment

reflecting an intent to dispose of all issues before the district

court is final.”) (citations omitted).

Our hesitation in this case derives from the district court’s

September 29, 1997, judgment dismissing “Fontenot’s claims,” while

its accompanying memorandum opinion discusses only some of these

claims. The court’s opinion discussed its reasons for finding that

Fontenot had failed to survive summary judgment on the issue of

discrimination, and explicitly discussed the discrimination claims,

including those based on Louisiana statutory law. The opinion does

not, however, discuss the other “state law claims.” If those
4

claims were not dismissed, then they remain pending in the court

below and the order sought to be appealed is not final and

appealable. 

Although both parties agree that the court’s order dismissed

all of Fontenot’s claims, the parties dispute whether Albemarle

requested judgment on the entire complaint. Albemarle’s motion for

summary judgment specifically discusses the age discrimination and

ERISA claims only, but nonetheless requests that Fontenot’s “suit”

be dismissed with prejudice. Albemarle also submitted a memorandum

supporting its motion which, also not mentioning the state law

claims, requested that Fontenot’s “claims” be dismissed. In his

opposition to the motion, Fontenot suggested that the summary

judgment motion did not include the state law claims.

Subsequently, on September 19, 1997, Albemarle, with leave of

court, filed a Reply Memorandum explicitly requesting dismissal of

these claims. Specifically, the Reply Memorandum asserts that

Fontenot failed to meet his burden of proof supporting those

claims: “Finally, plaintiff has completely failed to present any

evidence to support his state law claims of damages, such as that

his heart attack was caused by Albemarle’s (alleged) discrimination

against him based upon his age.” By the unambiguous language of

Albemarle’s Reply Memorandum, Albemarle requested dismissal of all

of Fontenot’s claims—including, but not limited to (“such as”),

Fontenot’s claims of emotional distress. 

Fontenot, with leave of court, responded to Albemarle’s Reply

Memorandum, but did not mention the state law claims. Similarly,
1 Albemarle argues that Fontenot’s state claims should

therefore be deemed abandoned and waived. “If a party abandons one

of its claims, a judgment that disposes of all remaining theories

is final and appealable so long as it is apparent that the district

judge intended the judgment to dispose of all claims.” Moreau, 158

F.3d at 244, citing Chiari v. City of League City, 920 F.2d 311,

314 (5th Cir. 1991). We do not reach this issue.

5

Fontenot did not discuss the state law claims in his motion for

reconsideration to the district court—even though he has

consistently maintained on this appeal that he understood the

district court’s order to have dismissed his entire case.1 

We also note that neither the summary judgment motion nor its

supporting memorandum expressly mentions the state law

discrimination claims. Yet, the district court expressly mentioned

these claims, and Fontenot concedes they were included in the

summary judgment motion, even though not expressly mentioned.

Moreover, Fontenot’s state law discrimination claims are grouped in

his complaint not with their federal counterparts, but instead with

Fontenot’s other “Pend[e]nt State Claims.” By reaching the state

law discrimination claims—even though not explicitly discussed in

Albemarle’s motion—the district court manifested its understanding

that it was disposing of the entire case. The court’s dismissal of

“Fontenot’s claims,” therefore, is a dismissal of the entire

complaint. See Armstrong v. Trico Marine, Inc., 923 F.2d 55, 58

(5th Cir. 1991) (finding final order in dismissal of “complaint,”

despite court’s failure to mention all claims).

A closer look at the substance of Fontenot’s state law claims

confirms that the entire case was dismissed. Under the subheading

“Pendant [sic] State Claims,” Fontenot alleges that Albemarle’s
2 Both during oral argument and in his supplemental brief to

this Court, Fontenot attacks Albemarle for “mischaracterizing” his

state personal injury claims as intentional or negligent infliction

of emotional distress claims. However, in Fontenot’s opening brief

to this Court, Fontenot himself characterized his state law claims

as such. (“In his Complaint, the appellant alleged that he suffered

damages under Louisiana law because of the appellee’s actions.

[Citation]. These damages involved, inter alia, the negligent and

intentional infliction of emotional distress.”). 

6

“intentional and/or negligent conduct [subjected Fontenot] to

extreme and unwarranted stress, which caused [Fontenot] to have a

heart attack.” We interpret this allegation as raising alternative

claims for negligent and intentional infliction of emotional

distress under Louisiana law.2 See White v. Monsanto, 585 So.2d

1205, 1209 (La. 1991) (“One who by extreme and outrageous conduct

intentionally causes severe emotional distress to another is

subject to liability for such emotional distress, and if bodily

harm to the other results from it, for such bodily harm.”); See

also Walker v. Allen Parish Health Unit, 711 So.2d 734 (La. Ct.

App.--3d Cir. 1998) (recognizing tort of negligent infliction of

emotional distress under Louisiana law). 

Fontenot has not alleged any facts to support these claims

apart from the alleged discrimination. Thus, despite Fontenot’s

present assertion that these claims do not depend upon proof of

discrimination, neither the complaint nor the record reveals any

other possible basis for these claims. Indeed, the success of

either claim is dependent upon a finding of discrimination.

Therefore, the district court’s order dismissing “Fontenot’s

claims” can be read to include the emotional distress claims, even

though the district court did not explicitly state its reasons for
7

so holding in its memorandum and opinion. See Moreau, 158 F.3d at

244 (“Here, the district court in entering final judgment appeared

to decide all claims, although it did not explicitly address

plaintiffs' wrongful refusal and retaliation claims.”).

Finally, Fontenot argues that his complaint states a claim

based on the loss of certain personal papers, including a

promissory note and letters from Fontenot’s late father, missing

from Fontenot’s former office. Fontenot’s complaint does not

mention any loss of property. Similarly, Fontenot’s opening brief

to this Court characterizes his state law claims only as involving

“inter alia, the negligent and intentional infliction of emotional

distress.” It is true that early in the litigation, Fontenot

responded to a motion in limine by expressing that “the missing

personal papers is [sic] part of the pendant [sic] state law claim

[singular]. . . in which the Plaintiff alleges both negligent and

intentional conduct by the Defendant.“ Because the district court

granted summary judgment before ruling on the motion in limine, it

did not address whether such a claim was present in the complaint.

No amended complaint mentioning lost papers or property was ever

filed or tendered. The response to the motion in limine cannot be

considered any part of the complaint.

Federal courts require that a plaintiff’s pleadings provide “a

short and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2). Even under this

lenient standard, see 5 Wright & Miller, Federal Practice &

Procedure Civ. 2d § 1215, no claim for a tort related to Fontenot’s
8

personal property can be gleaned from the complaint. In twelve

pages and fifty-eight paragraphs, Fontenot’s complaint does not

even mention any personal property either generally or

specifically. Nor does Fontenot’s list of nine distinct classes of

damages include any reference to property, or a specific dollar

amount for the value of the allegedly missing promissory note.

Instead, Fontenot now purports to interject a cause of action

entirely unrelated to the remainder of his complaint into his

boilerplate and nonspecific request for “any other legal and

equitable relief that this Court deems just and proper.”

We cannot unearth from Fontenot’s complaint any hint of

Albemarle’s alleged interference with Fontenot’s personal property.

Fontenot’s complaint in no way even attempts to state a claim

grounded on or related to any taking or loss of or damage to

personal property. Cf. Wright & Miller, supra, (“[G]reat

generality in the statement of these circumstances [supporting

plaintiff’s claim] will be permitted as long as defendant is given

fair notice of what is claimed; nonetheless, Rule 8(a)(2) does

require that the pleader disclose adequate information concerning

the basis of his claim for relief as distinguished from a bare

averment that he wants relief and is entitled to it.”). It cannot

be said that any such claim still endures before the district

court—none ever existed.

Both parties interpret the district court’s order to dismiss

all of Fontenot’s claims, and we concur. The court below intended

to—and indeed did—dismiss Fontenot’s entire case, and this Court
9

therefore may assert jurisdiction over this appeal. See 28 U.S.C.

§ 1291.

Next, we reject Fontenot’s contention that the district court

erred in considering his state law claims on summary judgment. The

crux of Fontenot’s argument is that these claims were not presented

in Albemarle’s summary judgment motion. Thus, Fontenot suggests

that the court sua sponte dismissed these claims, without providing

ten days’ notice and the opportunity to respond, as required by

Rule 56(c) and the holdings of this Court. See, e.g., Fed. R. Civ.

P. 56(c); Ross v. University of Texas at San Antonio, 139 F.3d 521,

527 (5th Cir. 1998); Judwin Properties, Inc. v. United States Fire

Ins. Co., 973 F.2d 432, 436 (5th Cir. 1992). 

This argument is without merit. Albemarle’s Reply Memorandum

clearly requests dismissal of Fontenot’s state law claims and

specifically notes Fontenot’s lack of proof of causation as to his

heart attack. Fontenot filed a response to Albemarle’s Reply

Memorandum, but failed to address these claims, let alone present

any supporting evidence. Similarly, Fontenot failed to address

these claims in his motion for reconsideration to the district

court.

In his supplemental brief to this Court, Fontenot acknowledges

that Albemarle raised the issue in its Reply Memorandum. Yet,

confoundingly, in the very next paragraph Fontenot insists that he

has no duty to respond to issues not presented in a motion for

summary judgment. If this argument can be read consistently, we

must deduce that Fontenot is challenging the propriety of the
10

district court’s considering a claim raised initially in a reply

memorandum to a summary judgment motion. Unfortunately, Fontenot

has neither provided any argument why the Reply Memorandum should

not be read as a mere clarification of the initial summary judgment

request, nor supplied this Court with any legal authority

supporting his position. Finally, Fontenot offers no explanation

for his failure to challenge the procedural posture of the motion

in the district court, despite having squandered two separate

occasions to do so.

Having failed to respond to issues indisputably raised in the

court below, Fontenot cannot now argue that he was without notice

of his duty to support his claims in order to defeat summary

judgment. Cf. Celotex Corp. v. Cattret, 106 S.Ct. 2548, 2553

(1988) (after party moving for summary judgment demonstrates

absence of genuine dispute for trial, nonmoving party bears burden

of pointing to evidence in the record showing genuine dispute of

material fact). The district court did not err in dismissing

Fontenot’s state law claims.

Turning to the discrimination claims, we essentially agree

with the well-reasoned opinion of the district court, that Fontenot

failed to establish a genuine dispute of material fact as to any of

these claims.

Conclusion

The judgment before us, while not explicitly mentioning the

state law damages claims, dismisses Fontenot’s entire complaint and

is thus a final, appealable order. The district court did not err
11

in dismissing all of Fontenot’s claims.

For the reasons stated herein and in the opinion of the

district court, the judgment is 

AFFIRMED.