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opinion should not be published and is not precedent except under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

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UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-31013

Summary Calendar

DEBBIE GRIFFIN,

Plaintiff-Appellant,

VERSUS

PLAZA MORTGAGE COMPANY, INC.,

Defendant-Appellee.

Appeal from the United States District Court

For the Eastern District of Lousiana

(99-CV-3002)

May 18, 2001

Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Debbie Griffin appeals the district

court’s judgment dismissing her claims against Plaza Mortgage

Company (“Plaza”) under Title VII of the Civil Rights Act of 1964,

the Age Discrimination in Employment Act, and the Equal Pay Act. 
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We do not reach the merits of Appellant’s case for lack of

jurisdiction.

I.

Plaza hired Debbie Griffin to establish a telemarketing

department and serve as the company’s telemarketing manager.

Timothy Smeltzer, chief executive officer of Plaza, reassigned

Griffin to direct mail marketing manager and named Keith Culpepper

as Griffin’s replacement in the telemarketing department. Griffin

filed suit in district court asserting causes of action under Title

VII, the Age Discrimination in Employment Act, and the Equal Pay

Act. Plaza filed its answer and asserted a counterclaim under

Louisiana state law. Defendants moved for summary judgment on June

14, 2000. At the conclusion of the summary judgment hearing, the

magistrate judge granted Plaza’s motion concerning Griffin’s Title

VII and ADEA claims. The court ordered the parties to file

supplemental summary judgment memoranda regarding Griffin’s Equal

Pay Act claim. After the court reviewed the parties’ supplemental

briefs, the magistrate judge entered an order granting Plaza’s

motion for summary judgment on Griffin’s Equal Pay Act cause of

action. 

Griffin filed a notice of appeal on August 7, 2000. On August

9, the magistrate judge entered its judgment dismissing the causes

of action set out in Griffin’s complaint. The court did not make

a dispositive ruling as to Plaza’s state law counterclaim. The

Clerk of Court erroneously closed the record. Upon realizing that
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the district court did not certify its judgment as a final order

under Rule 54(b), the parties entered into a consent decree in

which Plaza agreed to a dismissal of its claim without prejudice in

order to ensure that the original judgment was final for purposes

of this Court’s appellate jurisdiction.

II. 

As a court of limited jurisdiction, “[w]e 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 Federal Rule of Civil Procedure 54(b), or

some other nonfinal order or judgment to which an exception

applies.” Briargrove Shopping Center Joint Venture v. Pilgrim

Enter., Inc., 170 F.3d 536, 538 (5th Cir. 1999). We must first

determine whether the district court’s judgment was final for

purposes of § 1291.

The litigants insist that the consent decree dismissing

Plaza’s claim without prejudice caused the district court’s

judgment disposing of Griffin’s complaint to become the final

judgment for purposes of § 1291. Federal Rule of Civil Procedure

54(b) states:

When more than one claim for relief is presented in an

action, whether as a claim, counterclaim, cross-claim, or

third-party claim, . . . the court may direct the entry

of a final judgment as to one or more but fewer than all
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the claims . . ..

Fed. R. Civ. P. 54(b) (emphasis added). Rule 54(b) allows a

district court to certify a judgment disposing of less than all the

claims in a case as a partial final judgment. Rule 54(b) sets out

the procedure through which an order may become a final decision

under § 1291 when a case is not fully adjudicated. 

The magistrate judge entered judgment dismissing Griffin’s

complaint without disposing of Plaza’s counterclaim. Therefore,

the judgment was not a final decision disposing of all the claims

and parties under § 1291. See Cold Metal Process Co. v. United

Eng’g & Foundry Co., 351 U.S. 445 (1956). The subsequent consent

decree did not transform the judgment into a final decision. See

Heimann v. Snead, 133 F.3d 767, 769 (10th Cir. 1998). Rule 54(b)

was Griffin’s sole basis for appeal unless some other recognized

exception applied. See id.

In order for a judgment to be final under Rule 54(b), the

judgment must ultimately dispose of an individual claim, and the

district court must expressly determine that there is no reason for

delay. See Fed. R. Civ. P. 54(b); Curtis-Wright Corp. v. General

Electric Co., 446 U.S. 1, 7-8 (1980); Pilgrim Enterprises, Inc.,

170 F.3d at 539. Although the rule requires an “express

determination that there is no reason for delay,” we have said that

a judgment satisfies the requirements of Rule 54(b) if the judgment

complies with the following standard:
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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 judgment entered on August 9, 2000

did not expressly certify the judgment under Rule 54(b) or contain

language that would reflect the magistrate judge’s intent to enter

a partial final judgment. The judgment referred to the court’s

order granting Plaza’s motion for summary judgment. Like the

judgment, the order did not reveal an unmistakable intent to

certify the judgment as a partial final judgment. Therefore, the

judgment was neither a final decision under § 1291 or certified as

a partial final judgment under Rule 54(b). 

The only conceivable exception to the finality requirement

that applies to Griffin’s appeal is the exception for cumulative

orders or judgments that culminate into a final decision after a

litigant files a notice of appeal. See generally 15A Charles A.

Wright, Arthur R. Miller, & Edward H. Cooper, et al., FEDERAL PRACTICE

AND PROCEDURE § 3914.9 (2d ed. 1991). Under Rule 4(a)(2) of the
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Federal Rules of Appellate Procedure, “a premature notice of appeal

relates forward to the date of entry of a final ‘judgment’ only

when the ruling designated in the notice is a [nonfinal]

‘decision.’” Firstier Mortgage Co. v. Investors Mortgage Ins. Co.,

498 U.S. 269, 274 n.4 (1991). “Rule 4(a)(2) permits a notice of

appeal from a nonfinal decision to operate as a notice of appeal

from the final judgment only when a district court announces a

decision that would be appealable if immediately followed by the

entry of judgment.” Id. at 276. See also United States v. Cooper,

135 F.3d 960, 963 (5th Cir. 1998).

Griffin filed her notice of appeal on August 7, 2000 following

the magistrate judge’s second order granting Plaza’s motion for

summary judgment. On August 9, the court entered its judgment

dismissing Griffin’s complaint. If the August 9 judgment was a

final decision, then Rule 4(a)(2) would render Griffin’s notice of

appeal timely. However, the judgment of the court was not final.

Rule 4(a)(2) therefore cannot cure Griffin’s premature notice of

appeal.

Because the consent decree had no affect on the finality of

the court’s decision and the judgment did not satisfy the

requirements of Rule 54(b), we lack jurisdiction to consider

Griffin’s appeal.

DISMISSED