IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

DAVID SAMBRANO, et al., individually, 

and on behalf of all others similarly situated, 

Plaintiffs, 

§ 

§ 

§ 

§ 

§ 

§ 

v. 

UNITED AIRLINES, INC., 

Defendant. 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 4:21-CV-01074-P 

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION TO LIFT 

 STAY AND FOR ENTRY OF PARTIAL FINAL JUDGMENT 

Case 4:21-cv-01074-P Document 282 Filed 09/25/24 Page 1 of 20 PageID 19349
 -iTABLE OF CONTENTS

Page 

INTRODUCTION ......................................................................................................................... 1 

BACKGROUND ........................................................................................................................... 2 

ARGUMENT ................................................................................................................................. 4 

I. THE UNTIMELINESS OF PLAINTIFFS’ MOTION DEFEATS THEIR 

ASSERTION THAT “THERE IS NO JUST REASON FOR DELAY” ........................... 5 

II. THIS IS NOT THE SORT OF RARE CASE WHERE “HARDSHIP OR 

INJUSTICE” WOULD OCCUR WITHOUT A RULE 54(B) APPEAL .......................... 6 

A. Plaintiffs Identify No Danger Of Hardship Or Injustice ........................................ 6 

B. Plaintiffs Cannot Use The Pending Rule 23(f) Appeals To Bootstrap An 

Interlocutory Appeal Of The Dismissal Order....................................................... 8 

III. CERTIFICATION IS NOT A SURE PATHWAY TO MORE EFFICIENT 

PROCEEDINGS IN THIS COURT ................................................................................ 12 

CONCLUSION ............................................................................................................................ 13 

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 -iiTABLE OF AUTHORITIES 

Page(s) 

CASES

Air Liquide Mexico S. de R.L. de C.V. v. Talleres Willie, Inc., 

2015 WL 13764403 (S.D. Tex. July 31, 2015) ..........................................................................7 

Bank of New York v. Hoyt, 

108 F.R.D. 184 (D.R.I. 1985) ....................................................................................................5 

Bell v. Ascendant Solutions, Inc., 

422 F.3d 307 (5th Cir. 2005) ...............................................................................................9, 12 

Bruff v. N. Miss. Health Servs., 

244 F.3d 495 (5th Cir. 2001) ...................................................................................................10 

Charalambopoulos v. Grammer, 

2016 WL 5942225 (N.D. Tex. Oct. 13, 2016) ...........................................................................6 

Chiari v. City of League City, 

920 F.2d 311 (5th Cir. 1991) .....................................................................................................9 

Curtiss–Wright Corp. v. Gen. Elec. Co., 

446 U.S. 1 (1980) .......................................................................................................................1 

DOH Oil Co. v. QEP Res., Inc., 

2022 WL 18585970 (W.D. Tex. Aug. 25, 2022) .......................................................................5 

Eldredge v. Martin Marietta Corp., 

207 F.3d 737 (5th Cir. 2000) .................................................................................................4, 9 

Escobar v. Montee, 

895 F.3d 387 (5th Cir. 2018) ...............................................................................................9, 11 

Firestone Tire & Rubber Co. v. Risjord, 

449 U.S. 368 (1981) ...............................................................................................................4, 8 

Jasmin v. Dumas, 

726 F.2d 242 (5th Cir. 1984) .................................................................................................1, 4 

LeFever v. Ferguson, 

567 F. App’x 426 (6th Cir. 2014) ............................................................................................11

Case 4:21-cv-01074-P Document 282 Filed 09/25/24 Page 3 of 20 PageID 19351
 -iiiLucero v. Caterpillar Inc., 

2023 WL 6036802 (N.D. Tex. Feb. 23, 2023) .......................................................................4, 6 

Medifast, Inc. v. Minkow, 

2012 WL 13175889 (S.D. Cal. Apr. 13, 2012) ..........................................................................5 

Menard v. LLOG Expl. Co., 

2017 WL 1426968 (E.D. La. Apr. 21, 2017) .............................................................................7 

Miami Tribe of Oklahoma v. United States, 

2006 WL 3848949 (D. Kan. Dec. 29, 2006) ..............................................................................5 

Microsoft v. Baker, 

582 U.S. 23 (2017) ...................................................................................................................11 

Mims v. Stewart Title Guar. Co., 

590 F.3d 298 (5th Cir. 2009) .....................................................................................................9 

Parker v. Ahmsi Ins. Agency Inc., 

2021 WL 8565968 (S.D. Fla. July 8, 2021) ...............................................................................8 

PYCA Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 

81 F.3d 1412 (5th Cir. 1996) ........................................................................................... passim

Regents of Univ. of Cal. v. Credit Suisse First Bos. (USA), Inc., 

482 F.3d 372 (5th Cir. 2007) ...............................................................................................9, 12 

Sahr v. City of Des Moines, 

693 F. Supp. 3d 999 (S.D. Iowa 2023) ......................................................................................7 

SBN V FNBC LLC v. Baldone, 

2023 WL 2213257 (E.D. La. Feb. 24, 2023) .............................................................................7 

Schaeffer v. First Nat. Bank of Lincolnwood, 

465 F.2d 234 (7th Cir. 1972) .....................................................................................................5 

Schexnaydre v. Travelers Ins. Co., 

527 F.2d 855 (5th Cir. 1976) .....................................................................................................9 

Spiegel v. Tr. of Tufts Coll., 

843 F.2d 38 (1st Cir. 1988) ........................................................................................................7 

Swint v. Chambers Cnty. Comm’n, 

514 U.S. 35 (1995) ...................................................................................................................12 

Case 4:21-cv-01074-P Document 282 Filed 09/25/24 Page 4 of 20 PageID 19352
 -ivTetra Techs., Inc. v. Cont’l Ins. Co., 

755 F.3d 222 (5th Cir. 2014) .....................................................................................................8 

United States v. Crow, Pope & Land Enters., Inc., 

474 F.2d 200 (5th Cir. 1973) .....................................................................................................9 

STATUTES

28 U.S.C. § 1291 ..........................................................................................................................4, 6 

OTHER AUTHORITIES

Fed .R. Civ. P. 23 ................................................................................................................... passim 

Fed. R. Civ. P. 54 ................................................................................................................... passim 

Wright & Miller, Federal Practice & Procedure § 2659 ..................................................................4 

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1 

INTRODUCTION 

As an exception to the usual rule that interlocutory orders are not immediately appealable, 

entry of a partial final judgment under Federal Rule of Civil Procedure 54(b) “should be [used] 

sparingly,” not “routinely.” Jasmin v. Dumas, 726 F.2d 242, 244 (5th Cir. 1984). One would 

never know this from Plaintiffs’ motion, which identifies no extraordinary circumstances 

warranting Rule 54(b) treatment and ignores several countervailing considerations. 

First, Plaintiffs do not satisfy Rule 54(b)’s requirement that “there is no just reason for 

delay,” for their motion is itself untimely. They have unjustifiably delayed seeking permission to 

appeal the partial dismissal order, which this Court entered more than nine months ago and denied 

reconsideration of more than three months ago. 

Second, a district court may enter a Rule 54(b) judgment “only when there exists some 

danger of hardship or injustice.” PYCA Indus., Inc. v. Harrison Cnty. Waste Water Mgmt. Dist., 

81 F.3d 1412, 1421 (5th Cir. 1996). Plaintiffs simply disregard this controlling precedent. They 

speak about “judicial administration” and “efficien[cy],” ECF 280 at 8–9, but never identify any 

hardship or injustice. Nor is there any. This is a common situation where some claims were 

dismissed and others were not. That does not warrant an exception to “the historic federal policy 

against piecemeal appeals.” Curtiss–Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980). 

The pending Rule 23(f) appeals do not alter that analysis. While Plaintiffs assert there is 

“substantial overlap” between those class-certification appeals and the dismissal order, ECF 280 

at 9, that is both irrelevant and wrong. Even if there were such overlap, Plaintiffs “articulate[] no 

hardship or danger” from applying the ordinary appellate timing rule to the dismissal order. PYCA 

Indus., 81 F.3d at 1421. And anyway, any overlap is minimal at best. The class-certification order 

is entirely unrelated to this Court’s dismissal of (1) the retaliation claims on the merits and (2) some 

other claims on procedural grounds. While the partial denial of class certification did rely in part 

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2 

on this Court’s prior ruling interpreting the adverse-action requirement when dismissing some 

Plaintiffs’ accommodation claims, there are multiple independent grounds on which the Fifth 

Circuit may affirm the class-certification denial. Using the class-certification appeals to justify 

bootstrapping an appeal of separate dismissal rulings that the Fifth Circuit otherwise has no need 

to consider would unnecessarily complicate the Rule 23(f) appeals. Worse, it would end-run the 

limits on pendent appellate jurisdiction and undermine Rule 23(f)’s purpose, which is to allow an 

interlocutory appeal focused on a single topic: class certification. 

Third, even if “efficiency” could justify a Rule 54(b) certification, Plaintiffs are wrong 

when they insist that allowing an appeal now is inevitably the most efficient way to dispose of this 

case. The reverse could easily be true. If, for example, the Fifth Circuit were to reverse the partial 

dismissal order, it might require this Court to redo its class-certification analysis, in whole or in 

part. While Plaintiffs can, no doubt, posit different scenarios, the point is that there is no guarantee 

that certifying an appeal now will improve the chances of a prompt resolution. 

In sum, this is not the sort of rare case that warrants an early appeal under Rule 54(b). This 

Court should deny Plaintiffs’ motion. 

BACKGROUND 

On December 18, 2023, this Court granted in part United’s motion to dismiss Plaintiffs’ 

second amended complaint. ECF 231 at 1, 31. First, the Court dismissed the retaliation claims as 

meritless. Id. at 14–17. Second, the Court dismissed on procedural grounds some of the failureto-accommodate claims brought by four Plaintiffs: Mr. Castillo, Ms. Medlin, and Mr. Rains failed 

to file a timely charge with the EEOC, id. at 17–26, and Ms. Jonas’s Title VII claim fell outside 

the scope of her EEOC charge, id. at 27–28. Third, the Court dismissed the failure-toaccommodate claims brought by Mr. Castillo and Ms. Hamilton, holding that their masking-andtesting allegations did not plead an adverse employment action. Id. at 3–9. 

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Following the partial dismissal order, on January 12, 2024, the remaining Plaintiffs moved 

for class certification on their remaining claims. ECF 238; ECF 280 at 4. Four days later, Plaintiffs 

also sought reconsideration of the partial dismissal order. ECF 241. Plaintiffs did not, however, 

ask this Court in the alternative to enter Rule 54(b) judgment on the dismissed claims. 

On June 21, 2024, this Court ruled on Plaintiffs’ motion for class certification, granting it 

in part and denying it in part. ECF 263 at 1. The Court certified a class under Rule 23(b)(3) 

consisting of “all employees United deemed customer-facing who received an accommodation . . . 

and who were put on unpaid leave.” Id. at 41 (emphasis omitted). This Court declined to certify 

any other classes. It held that there are significant individualized issues concerning employees 

who either received a masking-and-testing accommodation or raised only an ADA claim, which 

precluded certification of any class including such employees under Rule 23(a), 23(b)(2), and 

23(b)(3). Id. at 4, 6–16, 20–21, 25–26, 35, 40. The Court also held that Plaintiffs’ request for 

punitive damages independently foreclosed certification of any class under Rule 23(b)(2), because 

such damages are not incidental to class-wide injunctive relief. Id. at 27–30. Finally, in the same 

document, the Court also included a separate order denying Plaintiffs’ motion for reconsideration 

of the partial dismissal order. Id. at 41. 

United filed a timely petition under Rule 23(f) for permission to appeal the order partially 

granting class certification. Two of the eight Plaintiffs—Mr. Sambrano and Ms. Kincannon—

filed a Rule 23(f) petition for permission to appeal the order partially denying class certification. 

On August 1, 2024, a panel of the Fifth Circuit granted both petitions. 

While the Rule 23(f) petitions were still pending, Plaintiffs filed a notice of appeal from 

the dismissal order and the reconsideration denial. ECF 266. Rather than asking this Court to 

enter partial final judgment on the dismissed claims under Rule 54(b), Plaintiffs incorrectly 

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4 

asserted that the dismissal order was itself a final decision under 28 U.S.C. § 1291. ECF 266 at 1. 

United promptly moved to dismiss that appeal for lack of appellate jurisdiction. 5th Cir. No. 24-

10656, Doc. 25. In response, Plaintiffs voluntarily dismissed it. 5th Cir. No. 24-10656, Doc. 26. 

Plaintiffs now belatedly ask this Court to enter a Rule 54(b) judgment so that they may again 

appeal the dismissal order. ECF 279. 

ARGUMENT 

Ordinarily, parties must wait until a district court enters the final judgment for the entire 

case before appealing. See 28 U.S.C. § 1291. That general rule “serves a number of important 

purposes,” including by limiting “piecemeal appeals” and focusing litigation on “just claims.” 

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981). 

Federal Rule of Civil Procedure 54(b) provides a narrow exception where a trial court may 

“direct entry of a final judgment as to one or more, but fewer than all, claims or parties” in a case. 

But “Rule 54(b) judgments are not favored,” Lucero v. Caterpillar Inc., 2023 WL 6036802, at *1 

(N.D. Tex. Feb. 23, 2023), as the Fifth Circuit has admonished that they “should be [used] 

sparingly” rather than “routinely,” Jasmin, 726 F.2d at 244; see Wright & Miller, Federal Practice 

& Procedure § 2659 & n.10 (collecting cases agreeing that Rule 54(b) judgments should rarely be 

entered). For starters, the exception applies only when “there is no just reason for delay,” Fed. R. 

Civ. P. 54(b), and only as to the dismissal of “distinct” claims (or parties), see Eldredge v. Martin 

Marietta Corp., 207 F.3d 737, 740 (5th Cir. 2000). In addition, to ensure Rule 54(b) judgments 

remain an exception, the Fifth Circuit has held that such orders must be limited to cases of 

“hardship or injustice.” PYCA Indus., 81 F.3d at 1421 (reversing Rule 54(b) order as “abuse of 

discretion” where district court “articulate[d] no hardship or danger warranting immediate 

appeal”). Plaintiffs’ motion fails these requirements several times over. 

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5 

I. THE UNTIMELINESS OF PLAINTIFFS’ MOTION DEFEATS THEIR 

ASSERTION THAT “THERE IS NO JUST REASON FOR DELAY” 

At the outset, to receive a Rule 54(b) judgment, the movant must show that “there is no 

just reason for delay.” Fed. R. Civ. P. 54(b); see DOH Oil Co. v. QEP Res., Inc., 2022 WL 

18585970, at *4 (W.D. Tex. Aug. 25, 2022) (describing the movant’s “burden of establishing that 

there is no just reason for delay”). That showing is particularly demanding when the movant delays 

in seeking a Rule 54(b) judgment, as “such thumb-twiddling is itself” reason to conclude that 

delayed appellate review is “a tolerable circumstance.” Bank of New York v. Hoyt, 108 F.R.D. 

184, 185–86 (D.R.I. 1985). 

Applying that rule, courts routinely deny Rule 54(b) motions when a party waits for months 

to file. See Miami Tribe of Oklahoma v. United States, 2006 WL 3848949, at *4 (D. Kan. Dec. 

29, 2006) (filing Rule 54(b) motion “ten months after the entry of the adjudication to which it 

relates[] is too long of a delay”); Medifast, Inc. v. Minkow, 2012 WL 13175889, at *2 (S.D. Cal. 

Apr. 13, 2012) (delay of five months weighed against granting motion); see also Schaeffer v. First 

Nat. Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972) (establishing “a general rule [that] 

it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the 

motion is filed more than thirty days after the entry of the adjudication to which it relates” 

(emphasis added)). 

Here, Plaintiffs have waited far too long to seek entry of a Rule 54(b) judgment. This Court 

issued its dismissal order more than nine months ago, on December 18, 2023, ECF 231, and it 

denied reconsideration of that order more than three months ago, on June 21, 2024, ECF 263. Yet 

Plaintiffs waited until now to seek entry of a partial final judgment to pursue an appeal of that 

order. In fact, before recently reversing course, Plaintiffs agreed that the case should be stayed in 

this Court pending the Rule 23(f) class-certification appeals. ECF 264. 

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6 

Plaintiffs give no explanation for the timing of their motion, breezing past Rule 54(b)’s 

requirement that there be “no just reason for delay.” ECF 280 at 8–9. To be sure, Plaintiffs filed 

an improper appeal from the partial dismissal order on July 18, 2024, ECF 266, but that hardly 

justifies their delay in bringing a timely Rule 54(b) motion. There was no plausible jurisdictional 

basis for that appeal, as confirmed by Plaintiffs’ acquiescence when confronted with United’s 

motion to dismiss. 5th Cir. No. 24-10656, Docs. 25, 26. Plaintiffs’ baseless assertion that the 

dismissal order was appealable as of right under 28 U.S.C. § 1291 only underscores their lack of 

diligence. Besides, even once Plaintiffs knew their appeal was flawed, they still delayed, letting 

nearly 30 days pass from the filing of United’s dismissal motion to when they filed their motion 

here. 5th Cir. No. 24-10656, Doc. 25; ECF 279. This Court should not reward their dilatory 

pursuit of a Rule 54(b) judgment, especially when such judgments are so heavily disfavored. 

II. THIS IS NOT THE SORT OF RARE CASE WHERE “HARDSHIP OR 

INJUSTICE” WOULD OCCUR WITHOUT A RULE 54(B) APPEAL 

Under Fifth Circuit precedent, a “district court should grant certification [under Rule 54(b)] 

only when there exists some danger of hardship or injustice through delay which would be 

alleviated by immediate appeal.” PYCA Indus., 81 F.3d at 1421. That standard plainly is not met 

here. Nor can Plaintiffs evade this rule by pointing to the pending class-certification appeals. 

A. Plaintiffs Identify No Danger Of Hardship Or Injustice 

Plaintiffs’ motion does not even acknowledge the “hardship or injustice” standard, let alone 

attempt to satisfy it. ECF 280 at 8–9. That omission is fatal in this Circuit. See, e.g., Lucero, 

2023 WL 6036802, at *2 (“Plaintiffs have not demonstrated any danger of hardship or injustice 

through delay which would be alleviated by immediate appeal.”); Charalambopoulos v. Grammer, 

2016 WL 5942225, at *5 (N.D. Tex. Oct. 13, 2016) (“[Plaintiff] has not explained what hardship 

or delay will be avoided by an immediate appeal, and the court thus exercises its discretion not to 

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7 

enter a final judgment under Rule 54(b).”); SBN V FNBC LLC v. Baldone, 2023 WL 2213257, at 

*4 (E.D. La. Feb. 24, 2023) (refusing to enter a Rule 54(b) judgment where movant “does not 

argue . . . that there is a danger of denying justice by delay or a danger of hardship”); Air Liquide 

Mexico S. de R.L. de C.V. v. Talleres Willie, Inc., 2015 WL 13764403, at *4 (S.D. Tex. July 31, 

2015) (denying 54(b) motion where movant had not “shown any danger of hardship or injustice”). 

In any event, Plaintiffs cannot possibly satisfy the “hardship or injustice” standard. 

Although Plaintiffs contend that, from the perspective of litigation in the trial court, it would be 

“most efficient” to gain “clarity” as to the appellate court’s views about the dismissed claims 

before litigating the still-pending claims, ECF 280 at 9, that looks at the issue from the wrong end 

of the telescope. From the appellate court’s perspective, those are truisms that would always 

justify a Rule 54(b) appeal of a partial dismissal. Courts thus reject Rule 54(b) motions resting on 

these types of assertions without any unusual harm to the movant from delay. See, e.g., Spiegel v. 

Tr. of Tufts Coll., 843 F.2d 38, 46 (1st Cir. 1988) (“hypothetical . . . of additional trials” did not 

warrant Rule 54(b) judgment because “[v]irtually any interlocutory appeal from a dispositive 

ruling said to be erroneous contains the potential for requiring a retrial”); Sahr v. City of Des 

Moines, 693 F. Supp. 3d 999, 1003–04 (S.D. Iowa 2023) (refusing to enter Rule 54(b) judgment 

where plaintiff failed to “distinguish [case] from a mine-run multi-count lawsuit” merely by 

emphasizing that “all the parties would benefit from a ruling on the issue immediately, rather than 

at the conclusion of the case” (cleaned up)); Menard v. LLOG Expl. Co., 2017 WL 1426968, at *2 

(E.D. La. Apr. 21, 2017) (“delay and expense to monitor the continuing litigation . . . is present in 

every case in which claims are dismissed against some defendants but not others[] and does not 

indicate that this is the sort of ‘infrequent hard case’ that Rule 54(b) was designed to address”). 

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8 

If anything, a Rule 54(b) appeal of Plaintiffs’ dismissed claims would be especially 

inappropriate, because their low “likelihood of success on appeal”—as demonstrated in this 

Court’s persuasive dismissal order—creates “the high likelihood of judicial resources being wasted 

by allowing an appeal to proceed at this time.” Parker v. Ahmsi Ins. Agency Inc., 2021 WL 

8565968, at *5 (S.D. Fla. July 8, 2021); see Tetra Techs., Inc. v. Cont’l Ins. Co., 755 F.3d 222, 

231 (5th Cir. 2014) (in reversing trial court’s Rule 54(b) certification, faulting it for having asked 

appellate court “to sign-off mid-litigation on legal questions” that the district court itself had found 

did not even present “substantial ground for difference of opinion”); cf. Firestone Tire & Rubber, 

449 U.S. at 374 (final-judgment rule keeps focus of litigation on “just claims”). 

B. Plaintiffs Cannot Use The Pending Rule 23(f) Appeals To Bootstrap An 

Interlocutory Appeal Of The Dismissal Order 

Plaintiffs’ argument depends, in large part, on the premise that the dismissal order raises 

issues “related” to the class-certification appeals pending under Rule 23(f). ECF 280 at 3, 6, 8–9. 

That argument is legally and factually flawed in multiple respects. 

Most fundamentally, any purported relationship between the class-certification denial and 

the dismissal order would not establish “hardship or injustice,” as required by the Fifth Circuit’s 

rule that a “district court should grant certification only when there exists some danger of hardship 

or injustice through delay which would be alleviated by immediate appeal.” PYCA Indus., 81 F.3d 

at 1421 (emphasis added). At most, if the appeals truly were related, that might make an early 

appeal of the dismissal order more efficient; but it would not mean Plaintiffs will suffer any 

unusual “hardship or injustice” if the dismissal order nevertheless must be appealed after final 

judgment in the entire case. Tellingly, Plaintiffs cite no case—either within this Circuit or from 

anywhere else—that authorizes a Rule 54(b) appeal based on a pending class-certification appeal 

that is purportedly related. 

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9 

Moreover, Plaintiffs are wrong that the rulings in the dismissal order are closely related to 

the class-certification appeals. A Rule 23(f) appeal permits consideration “only [of] the issue of 

class certification; no other issues may be raised.” Bell v. Ascendant Solutions, Inc., 422 F.3d 307, 

314 (5th Cir. 2005). It thus does not permit “wide-ranging inquiries into the merits of claims . . . 

without reference to the criteria for class certification.” Regents of Univ. of Cal. v. Credit Suisse 

First Bos. (USA), Inc., 482 F.3d 372, 381 (5th Cir. 2007); accord Mims v. Stewart Title Guar. Co., 

590 F.3d 298, 302 (5th Cir. 2009). Accordingly, “the merits of the plaintiffs’ claims . . . may only 

be considered” in a Rule 23(f) appeal if they are “relevant to the class certification question,” Mims, 

590 F.3d at 304, and “essential[] to the resolution of” the appeal, Escobar v. Montee, 895 F.3d 

387, 392 (5th Cir. 2018). Here, none of the dismissal rulings satisfies that standard. 

First, this Court dismissed the retaliation claims of all Plaintiffs, holding that United did 

not treat Plaintiffs worse because they requested accommodation. ECF 231 at 14–17, 32. The 

Court’s class-certification order in no way depended on the dismissal of the retaliation claims. In 

fact, it never even mentioned the retaliation ruling, see ECF 263, as Plaintiffs sought certification 

only “for those Plaintiffs and claims that remained in the case,” ECF 280 at 4.1

1

 Even if this Court were to grant Rule 54(b) certification as to some claims, it must deny 

Plaintiffs’ request to certify the dismissal of the retaliation claims of Mr. Sambrano and Ms. 

Kincannon. “To enter a Rule 54(b) final judgment, the district court must have disposed of ‘one 

or more . . . claims or parties.’” Eldredge, 207 F.3d at 740 (quoting Fed. R. Civ. P. 54(b)). The 

dismissal of fewer than all of a particular plaintiff’s claims satisfies this standard only if the 

dismissed claim constitutes “a distinct ‘claim for relief.’” Id. The required distinctiveness is not 

present when a “plaintiff merely presents alternative theories, drawn from the law of the same 

sovereign, by which the same set of facts might give rise to a single liability.” Schexnaydre v. 

Travelers Ins. Co., 527 F.2d 855, 856 (5th Cir. 1976). Here, the dismissed retaliation claims of 

Mr. Sambrano and Ms. Kincannon do not satisfy the distinct-claim requirement, as they constitute 

“a mere variation in legal theories” from their still-pending accommodation claims. See United 

States v. Crow, Pope & Land Enters., Inc., 474 F.2d 200, 202 (5th Cir. 1973); see also Chiari v. 

City of League City, 920 F.2d 311, 314 (5th Cir. 1991) (“A final determination as to one of several 

legal theories is not an appealable final judgment.”). 

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10 

Second, this Court dismissed the failure-to-accommodate claims of Mr. Castillo, Ms. 

Medlin, and Mr. Rains for lack of a timely EEOC charge, and dismissed Ms. Jonas’s Title VII 

failure-to-accommodate claim because it fell outside the scope of her EEOC charge. ECF 231 at 

17–26, 28, 32. Again, the dismissal of those claims had no relationship to, or bearing on, the 

partial denial of class certification. This Court’s class-certification order never mentioned those 

procedural rulings either. See ECF 263. 

Third, this Court dismissed the failure-to-accommodate claims brought by Mr. Castillo and 

Ms. Hamilton, holding in part that masking and testing alone does not constitute an adverse 

employment action. ECF 231 at 3–9, 32. And Plaintiffs are correct that the Court partly relied on 

this ruling in denying certification of the Rule 23(b)(2) class and the Rule 23(b)(3) masking-andtesting class, reasoning that additional individual inquiries would be necessary to demonstrate 

adverse employment action for employees not placed on unpaid leave. ECF 263 at 10, 15–16, 25–

26, 35. But there are numerous independent grounds to affirm that partial denial of class 

certification, thus severing any necessary relationship between the Rule 23(f) appeals and the 

dismissal order’s adverse-action ruling. 

As to the putative Rule 23(b)(2) class, this Court has already held that class certification is 

“independent[ly]” foreclosed because of Plaintiffs’ request for punitive damages, ECF 263 at 27–

30, and because the ADA claims would require individualized disability determinations, id. at 20–

21, 24, 35. In addition, the Rule 23(b)(2) class would include employees whose accommodation 

requests were denied, see id. at 2, which would require individualized determinations of whether 

such employees forfeited their claims by breaching their “duty to cooperate” with United’s 

accommodation process, see ECF 246 at 31 (quoting Bruff v. N. Miss. Health Servs., 244 F.3d 495, 

503 (5th Cir. 2001)). 

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11 

A similar analysis applies to the Rule 23(b) masking-and-testing class. As United 

explained in its Rule 23(f) petition, there are myriad individualized issues that defeat the 

commonality and predominance requirements for class certification. In brief, these issues include 

(1) whether each employee’s subjective need for a religious accommodation was sincere; whether 

each employee’s particular job duties and working conditions were such that (2) masking and 

testing was a reasonable accommodation or that (3) an alternative accommodation would have 

caused undue hardship to United; and (4) whether these Title VII claims for compensatory and 

punitive damages involve predominantly individual-specific issues. If United were to prevail on 

any of these arguments, that would render irrelevant to class certification whether this Court 

correctly applied Title VII’s adverse-action requirement to the masking-and-testing 

accommodation. 

In all events, if any of the rulings in the dismissal order truly were “intertwined” with, or 

“necessary to ensure meaningful review of,” the class-certification decision, then the proper course 

would have been for Plaintiffs to ask the Fifth Circuit to exercise “pendent appellate jurisdiction” 

over those specific rulings in the Rule 23(f) appeals. Escobar, 895 F.3d at 391. Plaintiffs’ attempt 

to get this Court to certify all the dismissal rulings under Rule 54(b) would end-run the limits on 

pendent appellate jurisdiction and usurp the Fifth Circuit’s prerogative to deem some or all of those 

rulings immaterial to the Rule 23(f) appeals. 

Plaintiffs’ approach also would defeat the purpose of Rule 23(f)’s specialized appellatereview provision. See Microsoft v. Baker, 582 U.S. 23, 27 (2017) (rejecting a different “tactic” 

that similarly sought to “subvert the balanced solution Rule 23(f) put in place for immediate review 

of class-action orders”); cf. LeFever v. Ferguson, 567 F. App’x 426, 432 (6th Cir. 2014) (appeal 

of qualified-immunity ruling did not support entering Rule 54(b) judgment on other rulings 

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12 

because the “distinct jurisdictional bases for these appeals justify separate timing”). As noted, 

Rule 23(f) permits consideration “only [of] the issue of class certification,” Bell, 422 F.3d at 314, 

and does not permit “wide-ranging inquiries into the merits of claims,” Regents, 482 F.3d at 381. 

In trying to inject merits issues into the mix through a Rule 54(b) judgment, Plaintiffs improperly 

seek to “parlay” the Rule 23(f) class-certification appeals into a “multi-issue interlocutory appeal 

ticket[].” Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 50 (1995). 

Relatedly, entering a partial final judgment on the dismissal rulings would make the 

pending appeals less efficient, not more efficient. Rather than being able to focus on the significant 

class-certification issues, the Fifth Circuit would have to address multiple objections to the 

dismissal of individual Plaintiffs’ claims on procedural and substantive grounds. As the dismissal 

of those claims plainly would not satisfy the Rule 54(b) standard in the absence of the pending 

Rule 23(f) appeals, it would be perverse to grant Rule 54(b) certification because of the Rule 23(f) 

appeals notwithstanding that certification would burden those appeals rather than benefit them. 

And that further underscores why Plaintiffs cannot demonstrate the “hardship or injustice” 

required for Rule 54(b) certification in this Circuit. PYCA Indus., 81 F.3d at 1421. 

III. CERTIFICATION IS NOT A SURE PATHWAY TO MORE EFFICIENT 

PROCEEDINGS IN THIS COURT 

Because they cannot hope to meet the actual legal standards for Rule 54(b) certification, 

Plaintiffs’ argument boils down to the idea that by granting certification, this Court can ensure that 

when this case eventually returns to its docket, all of the outstanding issues will be resolved, 

smoothing the way toward a faster and more efficient resolution. By contrast, they say, delaying 

the appeal could mean that “the parties and the Court may end up needing to start over years from 

now with new discovery and briefing on critical issues that are intertwined with pending issues in 

the case.” ECF 280 at 7. 

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13 

Even taken on its own (legally irrelevant) terms, that argument is a mirage. It is just as 

likely that an immediate appeal of the partial dismissal order will delay—not expedite—final 

resolution of this case and create more work for everyone. Suppose, for example, that the partial 

dismissal order goes up to the Fifth Circuit and is reversed. It is conceivable, in that scenario, that 

the Fifth Circuit might decide that it should not even reach the class-certification issues and instead 

would remand for reconsideration of class certification in light of its ruling on the partial dismissal. 

If that happened, this case would be back in virtually the same posture it was almost a year ago. 

Likewise, it is certainly possible that denying a Rule 54(b) judgment would set up a more efficient 

outcome. For example, if the Fifth Circuit rejects certification of all the putative classes and United 

ultimately prevails on the merits of the unpaid-leave claims, then the masking-and-testing claims 

and the retaliation claims would necessarily fail too. If that happened, there would be no need for 

either this Court or the Fifth Circuit to further consider those dismissed claims. 

Plaintiffs may say that those scenarios are unlikely and/or that it is just as likely that 

requiring an ordinary appeal after final judgment will drag out these proceedings. They cannot, 

however, guarantee that their preferred approach is the most efficient, either for this Court or the 

Fifth Circuit. They are, at best, just guessing. In the end, speculation about what would be 

“efficient” is neither the legal test under Rule 54(b) nor a wise basis for decision. 

CONCLUSION 

For the foregoing reasons, United respectfully requests that the Court deny Plaintiffs’ 

motion for entry of partial final judgment. 

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Dated: September 25, 2024 Respectfully submitted, 

/s/ Russell D. Cawyer 

Russell D. Cawyer 

TX Bar No. 00793482 

KELLY HART & HALLMAN LLP 

201 Main Street, Suite 2500 

Fort Worth, TX 76102 

Telephone: +1.817.322.2500 

Facsimile: +1.817.335.2820 

Email: russell.cawyer@kellyhart.com 

Donald J. Munro 

D.C. Bar No. 453600 

Hashim M. Mooppan 

D.C. Bar No. 981758 

JONES DAY 

51 Louisiana Avenue, NW 

Washington, D.C. 20001 

Telephone: +1.202.879.3939 

Facsimile: +1.202.626.1700 

Email: dmunro@jonesday.com 

Email: hmmooppan@jonesday.com 

Jordan M. Matthews 

IL Bar No. 6300503 

JONES DAY 

110 North Wacker Drive, Suite 4800 

Chicago, IL 60606 

Telephone: +1.312.269.4169 

Facsimile: +1.312.782.8585 

Email: jmatthews@jonesday.com 

Alexander V. Maugeri 

NY Bar No. 5062666 

JONES DAY 

250 Vesey Street 

New York, NY 10281 

Telephone: +1.212.326.3939 

Facsimile: +1.212.755.7306 

Email: amaugeri@jonesday.com 

ATTORNEYS FOR DEFENDANT 

UNITED AIRLINES, INC. 

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CERTIFICATE OF SERVICE 

I hereby certify that, on September 25, 2024, I electronically filed the foregoing with the 

Clerk of the Court using the CM/ECF system, which will send notification to all counsel of record. 

 /s/ Russell D. Cawyer 

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