1Technically, three parties are before us on appeal: Pilgrim

Enterprises, Inc., Pilgrim Laundry Co., Inc., and Pilgrim Equipment

Co., Inc. We refer to these parties collectively as “Pilgrim.”

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 98-20262

_____________________

BRIARGROVE SHOPPING CENTER JOINT

VENTURE,

Plaintiff - Counter Defendant - Appellee,

versus

PILGRIM ENTERPRISES, INC., ET AL.,

Defendants,

PILGRIM ENTERPRISES, INC.; PILGRIM

LAUNDRY COMPANY, INC.; PILGRIM

EQUIPMENT CO., INC.,

Defendants - Counter Claimants - Appellants.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Texas

_________________________________________________________________

April 7, 1999

Before JOLLY, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Pilgrim Enterprises, Inc.1 appeals from a judgment that

assessed response costs and damages against Pilgrim in a claim

asserted by Briargrove Shopping Center Joint Venture (“Briargrove”)

under the Comprehensive Environmental Response Compensation and

Liability Act (“CERCLA”), 42 U.S.C.A. §§ 9601-9675 (West 1995 &
2

Supp. 1998). Although the district court labeled its judgment

“Final,” there remained various other claims and cross-claims that

had not been decided. Furthermore, there was no certification of

this CERCLA judgment for appeal under Rule 54(b) of the Federal

Rules of Civil Procedure. Because this judgment appealed from is

neither final, nor certified, we conclude that we lack appellate

jurisdiction and therefore dismiss the appeal.

I

Briargrove owned a shopping center and leased property in that

shopping center to Pilgrim. Pilgrim operated a dry cleaning

business on the land for a number of years before its lease

terminated in 1979. Fifteen years later, in 1994, Briargrove

sought a loan backed by a mortgage on the shopping center. To

secure the loan Briargrove needed an environmental assessment of

its property. Briargrove hired an independent laboratory for this

purpose, and its investigation revealed that the property was

contaminated with perchloroethylene (commonly referred to as

“perc”). Briargrove sued Pilgrim under CERCLA, alleging that

Pilgrim is the party responsible for releasing perc onto the land.

Briargrove also alleged a variety of state law claims including

negligence, negligence per se, nuisance and trespass. Pilgrim

filed several counterclaims based on state common and statutory

law.

II
3

After hearing arguments and reviewing evidence, the district

court issued a “Declaratory Judgment” on January 22, 1998. This

declaratory judgment addressed only the CERCLA claims and declared

that Pilgrim was liable “for response costs and damages associated

with any ‘clean-up’ and remediation costs associated with the

Briargrove Shopping Center property.” The same day the court

issued the declaratory judgment, it also entered a “Final

Judgment,” captioned as such, which read in full:

Pursuant to the findings entered in this case and 42

U.S.C. § 96(3)(g)(2), (section 113 of CERCLA) the Court

DECLARES that Pilgrim is liable for response costs and

damages associated with any “clean-up” and remediation

costs associated with the Briargrove Shopping Center

property.

This is a Final Judgment.

Pilgrim subsequently filed a motion to amend the judgment,

requesting that the district court alter its findings of fact and

analysis of law; the district court denied the motion. Briargrove

then filed a motion requesting the court to aid the enforcement of

its judgment by issuing a “turnover order” according to Texas’

practice and procedure. See Fed. R. Civ. P. 69(a). In response,

Pilgrim asked the district court to approve a supersedeas bond.

The court approved the bond and further ordered that “all execution

upon [the court’s] Declaratory Judgment and Final Judgment . . .

are stayed pending appeal in front of the Fifth Circuit Court of

Appeals.” This order did not state whether the court contemplated
 

2See Witherspoon v. White, 111 F.3d 399, 402 (5th Cir. 1997)

(recognizing that “a decision failing to adjudicate the rights and

liabilities of all parties, while not technically final, can be

certified as final pursuant to Federal Rule of Civil Procedure

54(b)”).

 

3See generally 15A Charles A. Wright, et al., Federal Practice

and Procedure §§ 3911-3913 (2d ed. 1991).

4

an immediate appeal or an appeal following the disposition of the

various other claims and counterclaims.

III

Our court is one of limited jurisdiction. We have authority

to hear appeals only from “final decisions” under 28 U.S.C. § 1291,

interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments

certified as final under to Fed. R. Civ. P. 54(b),2 or some other

nonfinal order or judgment to which an exception applies (none

apply here).3 We have said that “[a] decision is final when it

‘ends the litigation on the merits and leaves nothing for the court

to do but execute the judgment.’” Askanase v. Livingwell, Inc.,

981 F.2d 807, 810 (5th Cir. 1993) (quoting Coopers & Lybrand v.

Livesay, 437 U.S. 463, 467 (1978)). Clearly, the district court in

this case has not rendered a “final decision” nor entered a final

judgment as that phrase is understood for § 1291 purposes.

Therefore, we must consider whether the district court has

certified its judgment for appeal under Rule 54(b) so that we have

authority to hear an appeal from a decision that “adjudicates fewer
5

than all the claims.” Fed. R. Civ. P. 54(b). Rule 54(b) states,

in relevant part, the following:

When more than one claim for relief is presented in an

action . . . the court may direct the entry of a final

judgment as to one or more but fewer than all of the

claims . . . only upon an express determination that

there is no just reason for delay and upon an express

direction for the entry of judgment. In the absence of

such determination and direction, any order or other form

of decision, however designated, which adjudicates fewer

than all the claims . . . shall not terminate the action

as to any of the claims . . . , and the order or other

form of decision is subject to revision at any time

before the entry of judgment adjudicating all the claims

. . . .

As both the rule’s text and the Supreme Court have made clear,

a district court deciding whether to certify a judgment under Rule

54(b) must make two determinations. See Curtiss-Wright Corp. v.

General Electric Co., 446 U.S. 1, 7-8 (1980). First, the district

court must determine that “it is dealing with a ‘final judgment.’”

Id. at 7. The judgment is final if “it is ‘an ultimate disposition

of an individual claim entered in the course of a multiple claims

action.’” Id. at 7 (quoting Sears, Roebuck & Co. v. Mackey, 351

U.S. 427, 436 (1956)). The second determination the district court

must make is whether any just reason for delay exists. CurtissWright Corp., 446 U.S. at 8. According to the text of Rule 54,

this determination must be made expressly.

Our court has, however, placed a gloss on the language of Rule

54(b). Although the rule requires “an express determination that

there is no just reason for delay,” we have said that a district
 

4In Kelly, the district court captioned the order appealed

from with the title “F.R.C.P. 54(b) JUDGMENT” and directed “that

there be final judgment entered pursuant to Federal Rule of Civil

6

court’s judgment meets the requirements of the rule if it satisfies

the following standard:

If the language in the order appealed from, either

independently or together with related portions of the

record referred to in the order, reflects the district

court’s unmistakable intent to enter a partial final

judgment under Rule 54(b), nothing else is required to

make the order appealable. We do not require the judge

to mechanically recite the words “no just reason for

delay.”

Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220

(5th Cir. 1990) (en banc). The intent must be unmistakable; the

intent must appear from the order or from documents referenced in

the order; we can look nowhere else to find such intent, nor can we

speculate on the thought process of the district judge. In the

instant case, the only other portions of the record referred to by

the order appealed from (the “Final Judgment” entered on

January 22, 1998) are the “findings entered in this case.” Those

findings are contained in the “Declaratory Judgment.” Thus, under

Kelly, we are required to look for the district court’s intent only

in the Final Judgment and the Declaratory Judgment.

Neither of those documents, either separately or taken

together, exhibits an “unmistakable intent to enter a partial final

judgment under Rule 54(b).” Kelly, 908 F.2d at 1220. Unlike the

facts in Kelly, the district court nowhere mentions Rule 54(b).4
Procedure 54(b) . . . .” Kelly, 908 F.2d at 1221.

 

5For example, one Rule 54(b) concern in this case would be

“whether the nature of the claims already determined was such that

no appellate court would have to decide the same issues more than

once even if there were subsequent appeals.” Curtiss-Wright Corp.,

446 U.S. at 8. In this case, it is not clear whether this concern

would weigh in favor of certifying the appeal under Rule 54(b).

The concern might cut against certification because one of the

parties may end up seeking review of the district court’s

resolution of some questions of fact related to the state law

claims and counterclaims. Those facts may (or may not) bear upon

the CERCLA issues presented to us in this appeal. For example,

Pilgrim contends that release of the perc may have occurred through

the sewer system maintained by Briargrove. Pilgrim further

contends that this fact should play a role in allocating damages

and that the district court mistakenly cast some of those damages

as CERCLA costs to be born by Pilgrim. We obviously make no

judgment as to the validity of these arguments, but it does appear

that fact issues underlying the unresolved state claims may

interrelate with the CERCLA claims. In any event, this is a call

for the district court to make in its role as “dispatcher.” Until

it makes a proper Rule 54(b) determination, we cannot have

jurisdiction over the CERCLA claims presented to us.

7

And in further contrast with the Kelly facts, neither of the

parties in the instant case submitted a motion mentioning Rule

54(b) to the district court. Id. (noting that one of the parties

submitted a motion for the court to amend its order “pursuant to

Rule 54(b)”). 

Furthermore, the district court in this case did not issue any

orders or memoranda discussing the substantive concerns surrounding

a Rule 54(b) certification.5 Proper consideration of these

concerns requires the district court to act as a “dispatcher,”

Curtiss-Wright Corp., 446 U.S. at 8, and to “weigh a variety of

factors to determine whether [its] disposition is appropriate for
8

Rule 54(b) certification.” Ackerman v. Federal Deposit Ins. Corp.,

973 F.2d 1221, 1224 (5th Cir. 1992). Before the district court can

justify certifying its judgment for appeal under Rule 54(b), it

must find that at least some of those factors combine to outweigh

the important concerns that underlie “the historic federal policy

against piecemeal appeals.” Curtiss-Wright Corp., 446 U.S. at 8

(quoting Sears, Roebuck & Co., 351 U.S. at 438). In this case, the

record reveals no consideration of such factors.

The fact that the district court labeled its order as a “Final

Judgment” does not suffice to make that order appealable under Rule

54(b). The label does not indicate any intent by the district

court that the order should be immediately appealable. Cf.

Curtiss-Wright Corp., 446 U.S. at 8 (“Not all final judgments on

individual claims should be immediately appealable, even if they

are in some sense separable from the remaining unresolved

claims.”). This understanding comports with the text of Rule

54(b), which states that any order, “however designated,” does not

terminate the action as to any claims when the court has not made

a determination that there is no just reason for delay of the

appeal. More importantly, our court recently has held that the

mere act of labeling an order as a “Final Judgment” is insufficient

evidence that the district court intended to certify the order

under Rule 54(b). Witherspoon v. White, 111 F.3d 399, 403 (5th

Cir. 1997); see also Askanase, 981 F.2d at 810 (concluding that the
 

6Pilgrim also argues that Briargrove’s seeking enforcement of

the district court’s “Final Judgment” demonstrates that Briargrove

thought the order was appealable. This argument has no weight,

however, because jurisdiction does not turn on the intentions of

either party. The only relevant intent in the instant case is that

of the district court as reflected or referenced in its order.

That intent remains unknown to us.

9

court lacked jurisdiction even though the district court indicated

that the order was “appealable”). Although we do not require the

mechanical recitation of Rule 54(b), Kelly, 908 F.2d at 1220, what

we do require is a showing of an “unmistakable intent” to enter the

judgment under Rule 54(b).

Finally, Pilgrim urges us to consider the district court’s

order approving the supersedeas bond as evidence that the district

court intended for its judgment to be immediately appealable. We

cannot do so, however, because this order was not referenced in the

order appealed from. See Kelly, 908 F.2d at 1220 (“If the language

in the order appealed from, either independently or together with

related portions of the record referred to in the order, reflects

the district court’s unmistakable intent to enter a partial final

judgment under Rule 54(b), nothing else is required to make the

order appealable.”) (emphasis added). Furthermore, even if we were

to consider the order approving the supersedeas bond, that order

nevertheless fails to reflect an “unmistakable intent to enter a

partial final judgment under Rule 54(b).” Kelly, 908 F.2d at

1220.6
10

In sum, nothing in the record before us indicates any

intention to certify the district court’s judgment as appealable

under Rule 54(b). Kelly describes the most lenient application of

a Rule 54(b) certification as far as this circuit is concerned, and

this case fails by a wide margin to meet that test. We therefore

lack jurisdiction to consider the district court’s partial ruling

on appeal.

IV

For the foregoing reasons, the appeal is 

D I S M I S S E D.