* 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that this opinion should not be published and is not precedent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.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-11124

(Summary Calendar)

_________________

SHON WILLIAMS,

Plaintiff - Appellee,

versus

SMITH PROTECTIVE SERVICES,

Defendant - Appellant.

Appeal from the United States District Court

For the Northern District of Texas

(3:97-CV-388-T)

March 24, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Smith Protective Services (“Smith”) brings an interlocutory

appeal from the district court’s order denying its motions to

dismiss for lack of jurisdiction (“motion to dismiss”) and, in the

alternative, to compel arbitration (“motion to compel”). We affirm
-2-

the district court’s denial of the motion to compel, and because we

lack jurisdiction, dismiss Smith’s appeal of its motion to dismiss.

Smith claims that the district court erred in denying its

motion to compel because Williams signed an arbitration agreement

as part of his employment contract with Smith. The court denied

this motion because Smith failed to submit the employment contract

along with its motion. Smith submitted only one page (the alleged

arbitration agreement) from the alleged 29-page employment

contract, and the single page that Smith submitted lacked a date,

a signature of its representative, or proper authentication, as

required by the Federal Rules of Evidence. Even if these

evidentiary defects could be overlooked, the court held that the

arbitration agreement would be unenforceable because Smith’s

“promise of ‘continued employment’ is an illusory promise incapable

of serving as consideration for a binding employment contract in an

at-will state such as Texas.” Williams v. Smith Protective Servs.,

No. 3:97-CV-0388-T, at 3 (N.D. Tex. Sept. 23, 1997). 

Assuming, arguendo, that Smith’s alleged employment contract

falls within the scope of the Arbitration Act, 9 U.S.C. § 1 et seq.

(1970), so that we have jurisdiction to hear an interlocutory

appeal of its motion, see 9 U.S.C. § 16(a)(1)(C) (1997 Supp.) (“An

[interlocutory] appeal may be taken from))(1) an order . . . (C)

denying an application under section 206 of this title to compel

arbitration.”), we agree with the district court that Smith has
-3-

failed to satisfy the evidentiary prerequisites necessary to

prevail on its motion. Moreover, as the district court correctly

noted, we see nothing in the alleged one-page arbitration agreement

that could serve as consideration for William’s promise to

arbitrate. Without consideration, the arbitration agreement is

unenforceable. See Light v. Centel Cellular Co., 883 S.W.2d 642,

645 (Tex. 1994) (holding that a collateral agreement between an

employer and an employee is valid if consideration exists for the

agreement, but that a promise either to provide employment or to

continue working is not sufficient consideration to make the

collateral agreement enforceable); Travel Matters, Inc. v. Star

Tours, 827 S.W.2d 830, 832-33 (Tex. 1991). Of course, Smith is

free to reurge this motion upon the district court if it can submit

an entire signed contract, properly authenticated, assuming that

proper consideration for the alleged arbitration agreement exists

in some other part of the contract. See Light, 883 S.W.2d at 645 n.

5 & 6. Based upon the evidence now before us, however, we affirm

the district court’s denial of the motion to compel.

In its motion to dismiss for lack of jurisdiction, Smith

argues that it is not subject to suit for violation of Title VII

because it operates solely in Texas and does not have a

“substantial effect” on interstate commerce, citing United States

v. Lopez, 514 U.S. 549, 559, 115 S. Ct. 1624, 1629-30, 131 L.Ed.2d

136 (1994). The district court denied the motion because it held
-4-

that Smith had failed to prove that it did not have a “substantial

effect” on interstate commerce. See Wickard v. Filburn, 317 U.S.

111, 63 S. Ct. 82, 87 L.Ed. 122 (1942). Smith renews this argument

on appeal, but, not without irony, we find that we lack

jurisdiction to consider the interlocutory appeal of Smith’s motion

to dismiss for lack of jurisdiction. 

A court of appeals ordinarily has jurisdiction only to review

a “final decision.” See 28 U.S.C. § 1291. No appeal lies from

“tentative, informal, or incomplete” decisions and decisions that

are “but steps towards final judgment in which they will merge.”

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct.

1221, 1225, 93 L.Ed. 1528 (1949). The refusal to grant a motion to

dismiss is not a “final decision.” See Ozee v. American Council on

Gift Annuities, Inc., 110 F.3d 1082, 1090 (5th Cir. 1997); Jackson

v. City of Atlanta, Tex., 73 F.3d 60, 63 (5th Cir. 1996) (“Denials

of motions to dismiss . . . in the Title VII context are non-final

pretrial orders.”).

Although no “final decision” is involved, the “collateral

order doctrine” allows this court to hear interlocutory appeals in

that “small class [of interlocutory decisions] which finally

determine claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too

independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.”
-5-

Cohen, 337 U.S. at 546, 69 S. Ct. at 1225-25. This “collateral

order doctrine” is “extraordinarily limited” in its application.

See Pan Eastern Exploration Co. v. Hufo Oils, 798 F.2d 837, 839

(5th Cir. 1986). Actions to dismiss for lack of jurisdiction

ordinarily do not fall within the scope of the “interlocutory order

doctrine.” See Ozee, 110 F.3d at 1091 n.7 (collecting cases).

Smith asserts that we have jurisdiction over its interlocutory

appeal pursuant to the Arbitration Act, 9 U.S.C. § 1 et seq., and

28 U.S.C. 1292(a)(1), “based upon the district court’s denial of a

motion to stay this action in order for it to be submitted to

arbitration pursuant to an agreement to do so.” Although Smith

apparently believes that it can appeal the denial of the motion to

dismiss because the district court also denied its motion to compel

(which we earlier assumed to be reviewable on interlocutory

appeal), it fails to suggest how the orders are related, which

might allow Smith to “bootstrap” the interlocutory appeal of its

motion to dismiss upon the motion to compel. It does not argue

that the denial of the motion to dismiss under Title VII is itself

a final order, see Jackson, 73 F.3d at 62, or that the denial of

the motion to dismiss comes within the scope of the “collateral

order” doctrine. See Ozee, 110 F.3d at 1091 n.7. Accordingly,

because the burden of establishing jurisdiction rests upon the

party asserting it, see Epps v. Bexar-Medina-Atacosa Counties Water

Improvement Dist. No. 1, 665 F.2d 594, 595 (5th Cir. 1982), and
1 Our holding today does not prevent Smith from arguing on

direct appeal, after a final judgment has been entered, that the

district court lacked jurisdiction to hear this case. “The general

rule is that ‘a party is entitled to a single appeal, to be

deferred until a final judgment has been entered, in which claims

of district court error at any stage of the litigation may be

ventilated.’” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, )),

116 S. Ct. 1712, 1718, 135 L.Ed.2d 1 (1996) (quoting Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867, 114 S.Ct. 1992,

1995, 128 L.Ed.2d 842 (1994)).

-6-

Smith has failed to meet its burden, we dismiss its interlocutory

appeal from the district court’s denial of its motion to dismiss.1

For the foregoing reasons, the district court’s denial of

Smith’s motion to compel arbitration is AFFIRMED and its appeal of

the motion to dismiss is DISMISSED.