Case: 19-30320   Document: 00515486215    Page: 1   Date Filed: 07/13/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                No. 19-30320                         July 13, 2020
                                                                    Lyle W. Cayce
ACADIAN DIAGNOSTIC LABORATORIES, L.L.C.,                                 Clerk


            Plaintiff-Appellee / Cross-Appellant,

v.

QUALITY TOXICOLOGY, L.L.C.,

            Defendant-Appellant / Cross-Appellee.


                Appeals from the United States District Court
                    for the Middle District of Louisiana


Before KING, GRAVES, and OLDHAM, Circuit Judges.
ANDREW S. OLDHAM, Circuit Judge:
      Acadian Diagnostic Laboratories, L.L.C. (“Acadian”) entered into two
contracts with Quality Toxicology, L.L.C. (“QT”) to perform lab testing. Their
business relationship soon unraveled, and Acadian filed this lawsuit. The jury
awarded damages to Acadian, and both sides appealed. QT says it didn’t get to
present its full case, so we should remand. And Acadian says it didn’t get
enough money, so we should vacate the judgment and replace it. They’re both
wrong. We affirm.
                                      I.
      This case involves two agreements between two labs in two States.
Acadian operated its lab in Baton Rouge, Louisiana. QT operated its lab in
Longview, Texas. Between 2013 and 2015, the labs made two agreements to
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                                No. 19-30320
create a reciprocal testing arrangement. Under the Acadian Referred
Specimens Agreement, Acadian referred urine specimens to QT for testing. QT,
in turn, agreed to pay Acadian 50% of all amounts collected for those services,
after deducting a charge from Medcross, QT’s billing contractor. Medcross
would do all the billing, collect the funds, and deposit them in QT’s account.
Then QT would remit to Acadian its share of the funds. Under a second
agreement, the QT Referred Specimens Agreement, the referral role flipped:
QT agreed to refer specimens to Acadian for testing. As with the first
agreement, Medcross billed and collected the funds. And, as with the first
agreement, Medcross deposited the collected funds into QT’s account. QT
agreed to deduct a charge for Medcross’s services and then remit 65% to
Acadian.
      QT and Acadian performed thousands of tests under these Agreements.
But QT refused to send Acadian most of its agreed-to share of the collected
funds. For example, Acadian performed lab services under the QT Referred
Specimens Agreement on 2,679 specimens. QT collected at least $1,565,428 in
payments for those specimens. But QT sent Acadian only $73,134.34—far less
than the 65% it owed under that Agreement.
      QT faced other business difficulties during this time too, which
culminated in a “business divorce.” Several of QT’s partners left and new
management came in. But the new management still did not remit the funds
owed to Acadian. So Acadian sent a demand letter. When QT didn’t respond,




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Acadian filed this lawsuit, alleging, among other things, that QT breached both
Agreements. 1
       The district court granted Acadian partial summary judgment on its
breach-of-contract claims. Specifically, the district court found that QT was
indisputably liable for breaching both Agreements. But Acadian’s damages
were another matter. The district court could not determine the effective date
of the Acadian Referred Specimens Agreement, and thus could not determine
when Acadian’s damages began to accrue. The court left that question for the
jury. As for the QT Referred Specimens Agreement, the court appears to have
found no dispute about the damages for 2,027 specimens for which QT failed
to pay Acadian. As to those specimens, the district court concluded “that QT
owes Acadian the balance due on the QT Referred Specimens [Agreement] of
$1,017,528.20, less the $73,134.34 . . . payment.” The court appears to have left
for the jury the question of damages for the remaining 652 specimens.
       The district court also granted Acadian’s motion in limine regarding a
joint venture named ToxNet Diagnostic Laboratory Services, L.L.C. QT
wanted to present testimony about ToxNet to the jury. But the district court
said that evidence would be a “waste of time.” Later, QT attempted to introduce




       1 Both Acadian and QT are LLCs. “[T]he citizenship of a[n] LLC is determined by the
citizenship of all of its members.” Harvey v. Grey Wolf Drilling Co., 

, 1080 (5th
Cir. 2008). “So, to establish diversity jurisdiction, a party must specifically allege the
citizenship of every member of every LLC.” MidCap Media Fin., L.L.C. v. Pathway Data, Inc.,

, 314 (5th Cir. 2019) (quotation omitted). Both of Acadian’s members are
Louisiana citizens. All the various members of QT and its various corporate parents are
citizens of Texas. Thus, complete diversity exists to give the court jurisdiction to hear this
state-law dispute. 28 U.S.C. § 1332(a).

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                                 No. 19-30320
evidence regarding Acadian’s partner in the ToxNet venture. The district court
again excluded it.
      The jury awarded Acadian damages for QT’s breach of both Agreements.
For the Acadian Referred Services Agreement, QT owed $635,032.23. And for
the QT Referred Services Agreement, QT owed $269,706.50. Notably, the jury
instructions and the verdict form said nothing about whether the QT Referred
Services Agreement damages were for all specimens or just the 652 specimens
on which the district court denied summary judgment.
      Shortly after the jury verdict, Judge Brady, who had presided over the
case, passed away. The case remained open on the docket for fifteen more
months until then-Chief Judge Jackson entered final judgment for Acadian.
The final judgment said nothing about Judge Brady’s earlier summary
judgment opinion or his damages calculation. Instead, the judgment only
reflected the jury’s verdict. Acadian’s counsel filed for his attorney’s fees but
did not file any post-trial motions about this apparent inconsistency. QT filed
a motion for a new trial, but it was denied.
      Both parties timely appealed.
                                       II.
      We start with QT. First, QT argues the district court incorrectly granted
summary judgment on its liability for breaching the Agreements. Second, QT
argues the district court erroneously stopped it from introducing evidence
about Acadian’s business dealings. Neither contention merits a new trial.
                                       A.
      We review the district court’s grant of partial summary judgment de
novo. Smith v. Reg’l Transit Auth., 

, 417 (5th Cir. 2016). As this
case implicates our diversity jurisdiction, we apply Louisiana law to review




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                                 No. 19-30320
QT’s liability for breaching both Agreements. Am. Elec. Power Co. Inc. v.
Affiliated FM Ins. Co., 

, 285 & n.2 (5th Cir. 2009).
        QT Referred Specimens Agreement. QT argues that the QT Referred
Specimens Agreement does not obligate it to remit any money at all. Although
QT, through Medcross, in fact collected funds for these services, QT says the
Agreement actually required Acadian to collect its own bills. And hence, QT
contends, it did not breach the Agreement by failing to remit Acadian’s money.
        The disputed provision required Acadian to use “its customary billing
practices.” To interpret this provision under Louisiana law, we must
“determin[e] . . . the common intent of the parties.” LA. CIV. CODE ANN. art.
2045. And “[t]he language of the [contract] is the starting point for determining
that common intent.” Six Flags, Inc. v. Westchester Surplus Lines Ins. Co., 

, 954 (5th Cir. 2009). “The words of a contract must be given their
generally prevailing meaning.” LA. CIV. CODE ANN. art. 2047. “When the words
of a contract are clear and explicit and lead to no absurd consequences, no
further interpretation may be made in search of the parties’ intent.”

        The generally prevailing meaning of “customary” appears to be
“[a]greeing with, or established by, custom; established by common usage;
habitual.” Customary, WEBSTER’S NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE (2d ed. 1941); Customary, THE AMERICAN HERITAGE
COLLEGE DICTIONARY (4th ed. 2002) (“Commonly practiced, used, or
encountered, usual”); accord Fullilove v. U.S. Cas. Co. of N.Y., 

,
394 (La. 1960) (defining “usual” as synonymous with “customary”). So, Acadian
agreed to use its “habitual” or “usual” billing practices. QT appears to argue
that Acadian agreed to use the billing practices that it habitually or usually
used with its customers in general. By contrast, Acadian asserts that it agreed
to use the billing practices that it habitually or usually used with QT—that is,
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                                 No. 19-30320
to use QT and Medcross for all billing and collections. We are thus faced with
two seemingly permissible interpretations.
      When the meaning of a contract provision is “doubtful,” Louisiana law
says that such provisions “must be interpreted in light of the nature of the
contract, equity, usages, the conduct of the parties before and after the
formation of the contract, and of other contracts of a like nature between the
same parties.” LA. CIV. CODE ANN. art. 2053 (emphasis added); see also
McCarroll v. McCarroll, 

, 1286 (La. 1997) (“[W]hen the terms
of a written contract are susceptible to more than one interpretation . . . parol
evidence is admissible to clarify the ambiguity and to show the intention of the
parties.”); WH Holdings, L.L.C. v. Ace Am. Ins. Co., 481 F. App’x 894, 898 (5th
Cir. 2012) (per curiam). Since the “clause in question”—customary billing
practices—“does not itself clearly disclose what the parties had in mind, their
intention may and can be determined by the manner in which operations under
the agreement were conducted.” Book v. Schoonmaker, 

, 369 (La.
1946); accord Nelson v. Nelson, 

, 1291 (La. Ct. App. 2008).
      Here, the record is entirely one-sided: It shows that QT, through
Medcross, conducted all the billing and collections for these specimens. That’s
the agreement Acadian and QT orally made before reducing the QT Referred
Services Agreement to writing. That’s what QT did under the parties’ other
agreement, the Acadian Referred Services Agreement. And that’s what QT did
under this Agreement before failing to remit Acadian’s share of those funds.
This conduct “before and after the formation of the contract,” LA. CIV. CODE
ANN. art. 2053, sheds light on the bargained-for exchange between the parties
and evinces an intention to have QT manage the billing and collecting before




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                                 No. 19-30320
remitting the funds to Acadian. See 

; WH Holdings,
481 F. App’x at 898 & n.3.
      QT points to no evidence to dispute any of this. And “a party cannot
defeat summary judgment with conclusory allegations, unsubstantiated
assertions, or ‘only a scintilla of evidence.’ ” Turner v. Baylor Richardson Med.
Ctr., 

, 343 (5th Cir. 2007) (quoting Little v. Liquid Air Corp., 

, 1075 (5th Cir. 1994)). Summary judgment for QT’s breach of this
Agreement was thus proper. FED. R. CIV. P. 56(a).
      Acadian Referred Specimens Agreement. QT argues it’s not liable under
the Acadian Referred Specimens Agreement because Acadian breached the
Agreement first. QT says Acadian did not comply with three provisions
requiring Acadian (1) to provide certain forms to QT, (2) to give certain
insurance information to QT, and (3) to cooperate with QT on billing and
collecting. So, while it’s true that QT never paid Acadian, QT says it did not
have to because these three provisions are “conditions precedent” to QT’s
payment obligation.
      Conditions precedent in a contract—more properly called “suspensive
conditions” under the Louisiana Civil Code—are “terms that suspend . . . a
party’s obligation until the occurrence of a condition.” Mumblow v. Monroe
Broad., Inc., 

, 621 (5th Cir. 2005) (citing S. States Masonry, Inc.
v. J.A. Jones Constr. Co., 

, 204 n.15 (La. 1987)); see also City of
New Orleans v. Tex. & Pac. Ry. Co., 

, 334 (1898) (“The suspensive
condition, under the Louisiana Code, is the equivalent of the condition
precedent at common law.”). When suspensive conditions are in a contract, a
party has no duty to perform its own obligations until those conditions are met.
See LA. CIV. CODE ANN. art. 1767. But Louisiana law disfavors any finding that
terms of a contract are suspensive conditions. See S. States Masonry, 

at 201. The Supreme Court of Louisiana has gone so far as to say that
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                                 No. 19-30320
“contractual provisions are construed . . . not to be suspensive conditions
whenever possible.”

The party seeking the benefit
of a suspensive condition has the burden to show that’s how the contract must
be read. 

.
      QT has not shown that the Acadian Referred Specimens Agreement
contained suspensive conditions. For example, QT has not made any argument
that “the express contract language compels such construction.” Hampton v.
Hampton, Inc., 

, 1190 (La. Ct. App. 1998). Nor has QT provided
any evidence about the “reason and sense of the contemplated transaction,” so
as to explain why Acadian had to comply with these provisions before receiving
payment. City of New 

. It is not enough for QT to argue
that it “was under the impression” that Acadian would fulfill these obligations,
Frantz v. Vitenas, 

, 285 (La. Ct. App. 1977), or that it would have
been “convenient, useful, [and] beneficial” if Acadian had fulfilled them, City
of New 

.
      And it’s unclear why it matters whether the Agreement contained
suspensive conditions. Even if it did, QT has the burden of showing that
Acadian did not meet the conditions. Sam’s Style Shop v. Cosmos Broad. Corp.,

, 1004 (5th Cir. 1982). In this way, the “nonfulfillment” of a
suspensive condition is in the “nature of an affirmative defense.”

any other affirmative defense, QT “bear[s] the burden of proving each
element of [the] affirmative defense by a preponderance of the evidence.” Petro
Harvester Operating Co., L.L.C. v. Keith, 

, 697 (5th Cir. 2020);
see FED. R. CIV. P. 56(c). QT has provided no evidence at all on this score.
Therefore, QT cannot show a suspensive condition absolved its obligation to
pay Acadian. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 

, 586 (1986) (explaining that the “opponent [of summary judgment] must
do more than simply show that there is some metaphysical doubt as to the
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material facts”). Summary judgment for QT’s breach of this Agreement was
thus proper, too.
                                       B.
      QT next argues that the district court erred by prohibiting the
introduction of evidence about Acadian’s third-party business relationships at
the damages trial. We review evidentiary decisions by the district court for an
abuse of discretion. United States v. Kinchen, 

, 470 (5th Cir. 2013).
      QT sought to present evidence about a company called ToxNet, which
was a joint venture between Acadian and the old, now-“divorced” members of
QT. QT wanted to tell the jury a tale of old QT members who planned to go
around the new QT management’s backs to form this joint venture. QT also
wanted to present testimony about a business named Zenith. And it wanted
the jury to hear about “a plan [of] subterfuge,” through which Acadian, Zenith,
and ToxNet allegedly conspired to hold QT liable for nonpayment. This is an
interesting story.
      But QT fails to show how it was relevant to the damages trial. A
fundamental precept of federal evidence law is that evidence must be
“relevant” to be admissible. FED. R. EVID. 402. To be relevant, evidence must
have a tendency to make a fact more or less probable, and that fact must be “of
consequence in determining the action.” FED. R. EVID. 401. Here, the action
was a trial about damages—i.e., how much did QT owe for breaching its two
Agreements with Acadian? QT fails to show how the evidence about these
third-party business relationships had any relevance to how much QT owed
under its own Agreements with Acadian. Accordingly, the district court did not
abuse its discretion in excluding this evidence. 

.
                                      III.
      Acadian cross-appeals. It argues that the jury’s $269,706.50 award for
the QT Referred Specimens Agreement is too low and “not supported under
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any view of the evidence at trial.” Therefore, Acadian seeks “amendment of the
final judgment to reflect the appropriate [i.e., higher] award” of $1,344,824.71,
based on the evidence at trial. In the alternative, Acadian seeks to change the
judgment to $1,017,528.20 so that it reflects Judge Brady’s apparent
conclusion in his summary judgment opinion.
                                       A.
      As a preliminary matter, we cannot simply amend the jury’s damages
award and increase the damages QT must pay. That’s true even if we think the
evidence would support a higher figure. It has long been established that the
Seventh Amendment’s Re-Examination Clause—that “no fact tried by a jury,
shall be otherwise re-examined in any Court of the United States, than
according to the rules of the common law”—generally prevents increasing jury
awards after a verdict. U.S. CONST. amend. VII; Dimick v. Schiedt, 

, 486 (1935); Taylor v. Green, 

, 164 (5th Cir. 1989) (“The court
manifestly lacked power to add to the amount of the verdict for either
compensatory or punitive damages.”); Wiltz v. Welch, 651 F. App’x 270, 274
(5th Cir. 2016). Thus, Acadian’s request for the entry of judgment of a higher
damages figure is meritless.
      Our conclusion is reinforced by the fact that the Federal Rules of Civil
Procedure provide several ways for a federal litigant to seek a different
damages figure than that which the jury awards. And Acadian chose exactly
none of them.
      First, before the jury decides anything, a litigant can seek judgment as
a matter of law under Rule 50(a). FED. R. CIV. P. 50(a); Moreau v. Oppenheim,

, 1311 (5th Cir. Dec. 1981); see also Hyundai Motor Fin. Co. v.
McKay Motors I, LLC, 

, 642 (8th Cir. 2009) (“If the amount of
damages was in fact uncontested, [plaintiff ] should have moved for the district
court to decide that issue as a matter of law before the case was submitted to
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the jury.”). This is akin to summary judgment but at a later stage of the
proceedings. And the litigant must show that there is “no valid dispute as to
the amount of damages,” 

, and that therefore the
question should not go to the jury at all, cf. Anderson v. Liberty Lobby, Inc., 

, 250 (1986) (“[T]he trial judge must direct a verdict if, under the
governing law, there can be but one reasonable conclusion as to the verdict.”).
In a Rule 50(a) motion, Acadian could’ve explained why there was no dispute
as to the damages, and why no damages figure was possible except for the one
Acadian sought. But Acadian did not file a Rule 50(a) motion. When a party
does “not move for judgment at any time before the verdict,” it has forfeited its
right to seek judgment as a matter of law in this court. Purcell v. Seguin State
Bank & Tr. Co., 

, 956 (5th Cir. 1993); see also Hinojosa v. City of
Terrell, 

, 1228 (5th Cir. 1988).
      Had Acadian filed a Rule 50(a) motion, Acadian could have renewed that
motion once it heard the jury’s damages award under Rule 50(b). FED. R. CIV.
P. 50(b). After the filing of the Rule 50(b) motion, the district court would have
had three options: (1) allow the jury’s damages figure to stand, (2) order a new
trial, or (3) direct the entry of judgment as a matter of law.

not file a Rule 50(b) motion. The upshot is crystal clear: “ ‘In the absence of
such a motion’ an ‘appellate court [is] without power to direct the District Court
to enter judgment contrary to the one it had permitted to stand.’ ” Unitherm
Food Sys., Inc. v. Swift-Eckrich, Inc., 

, 400–01 (2006) (quoting
Cone v. W. Va. Pulp & Paper Co., 

, 218 (1947)).
      Even without filing any motion under Rule 50, Acadian still could have
filed a Rule 59 motion for a new trial on damages. FED. R. CIV. P. 59(a). Among
the reasons for a new trial is that the jury’s damages award is “against the
weight of the evidence.” Gasperini v. Ctr. for Humanities, Inc., 

,
433 (1996). Acadian could have argued, like it does on appeal, that the jury’s
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verdict was simply not supported by the evidence at all. But Acadian did not
file that Rule 59 motion. As a consequence, Acadian “is not entitled to pursue
a new trial on appeal” because it failed to “make[] an appropriate postverdict
motion in the district court.” 

.
        By failing to file any of these motions in the district court, Acadian
forfeited its ability to seek appellate review of the jury verdict.

argues that something must be done about the
apparent inconsistency between the summary judgment order and the final
judgment issued by the district court. After all, the district court’s final
judgment says nothing about Judge Brady’s summary judgment opinion,
which “f[ound] that QT owes Acadian the balance due on the QT Referred
Specimens [Agreement] of $1,017,528.20, less the $73,134.34” that QT already
paid.
        Here, too, the Federal Rules of Civil Procedure provided avenues for
Acadian to clear up this apparent inconsistency. One option was Rule 58. That
rule allows a “party [to] request that judgment be set out in a separate
document.” FED. R. CIV. P. 58(d). And the Rule contemplates that the district
court must pay careful attention to the preparation of this document, where,
as here, the judgment may be more complicated than a general jury verdict.
FED. R. CIV. P. 58(b)(2). This Rule is designed to ensure that the litigants (and
appellate courts) “know precisely what the judgment is and when it was
entered.” 11 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE
§ 2781 (3d ed. 2020). Rule 58 thus ensures that a district court “specif[ies] what
matters: the consequences of the judicial ruling.” Rush Univ. Med. Ctr. v.
Leavitt, 

, 737 (7th Cir. 2008).
        Rule 58 plays a vital role because “[t]he judicial power vested by Article
III is the power ‘to render dispositive judgments.’ ” United States v. Lavergne,
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785 F. App’x 213, 216 (5th Cir. 2019) (Oldham, J., concurring in part and
dissenting in part) (quoting Plaut v. Spendthrift Farm, Inc., 

, 219
(1995)). And, as an appellate court, we “review[ ] judgments, not opinions.”
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

, 842 (1984).
So Acadian could’ve used Rule 58(d) to request the entry of a final judgment
that reflected both the jury verdict and the summary judgment opinion.
Acadian did not do so. 2
       Once the allegedly incorrect final judgment was entered, the Federal
Rules gave Acadian another chance to fix it. Within 28 days, Acadian could
have sought “to alter or amend [the] judgment” under Rule 59(e). “Th[at] Rule
gives a district court the chance ‘to rectify its own mistakes in the period
immediately following’ its decision.” Banister v. Davis, 

, 1703
(2020) (quoting White v. New Hampshire Dep’t of Emp. Sec., 

, 450
(1982)). Rule 59(e) even acts to suspend the ordinary time requirements to file
a notice of appeal. This suspension “enable[s] a district court to . . . perfect its
judgment before a possible appeal” is taken.

And should a litigant
succeed in correcting a judgment, an appeal may become “altogether
unnecessary,” ibid., preventing needless “burdens being placed on the courts
of appeals,” United States v. Ibarra, 

, 5 (1991) (per curiam). But
Acadian did not file a Rule 59(e) motion.
       Even after the window closed for a Rule 59(e) motion, Acadian could have
considered whether to file a Rule 60(b) motion for relief from the allegedly
erroneous judgment. FED. R. CIV. P. 60(b). Among the grounds for relief under
Rule 60(b) are “mistake, inadvertence, surprise, or excusable neglect.”

fact, Acadian appears to have recognized the utility of Rule 58(d) by filing a motion
before the jury trial. But Acadian did nothing after the jury trial. That is, Acadian did not file
a Rule 58(d) motion when it first recognized that the jury’s verdict might be inconsistent with
the summary judgment opinion.
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‘mistake’ under Rule 60(b)(1) includes judicial errors, but such an error must
be a ‘fundamental misconception of the law,’ and not merely an erroneous
ruling.” Webb v. Davis, 

, 899 (5th Cir. 2019) (quoting Chick Kam
Choo v. Exxon Corp., 

, 695 (5th Cir. 1983)). And should the district
court deny a Rule 60(b) motion, that denial is itself an appealable order.
Browder v. Dir., Dep’t of Corr. of Illinois, 

, 263 n.7 (1978). So, Rule
60(b) motions not only allow for the district court to fix its own errors, these
motions also create a right to appellate review of unfixed errors. See Taylor v.
Johnson, 

, 474 (5th Cir. 2001) (“A party may file a [R]ule 60(b)
motion at any time within one year after judgment, even if an appeal is
pending, and the denial of that motion is appealable separately from the
underlying judgment.”).
      In fact, our circuit has an established procedure (nearly seven decades
old) to allow parties to file Rule 60(b) motions during the pendency of appeals.
See

appeal deprives the district court of all jurisdiction
      except for the following: “[T]he district court retains jurisdiction to
      consider and deny such [post-judgment] motions, . . . [and] if it
      indicates that it will grant the motion, the appellant should then
      make a motion in the Court of Appeals for a remand of the case in
      order that the district court may grant such motion.”

Winchester v. U.S. Att’y for S. Dist. of Tex., 

, 949 (5th Cir. 1995)
(quoting Ferrell v. Trailmobile, Inc., 

, 699 (5th Cir. 1955)). We
express no view on whether such a Rule 60(b) motion would have been
successful. We only note it was available to Acadian—and Acadian has so far
ignored it.
                                        C.
      The Federal Rules of Civil Procedure provide ample mechanisms for
litigants to ensure a district court gets its post-jury-trial judgment right. These

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are not “idle motion[s].” Johnson v. New York, N.H. & H.R. Co., 

,
53 (1952). Instead, these motions reflect the “institutional advantages of trial
. . . courts” and “the unchallenged superiority of the district court’s factfinding
ability.” Salve Regina Coll. v. Russell, 

, 233 (1991). And they
provide the district court, with the “perspective peculiarly available to [it]
alone,” “a last chance to correct [its] own errors without delay, expense, or other
hardships of an appeal.” 

. True, some of these motions
may “seldom change judicial outcomes.” 

. But by
taking advantage of them, litigants “promote[ ] an economic and effective
appellate process, as the reviewing court gets the benefit of the district court’s
plenary findings.”

not clear to us the import of Judge Brady’s summary judgment
decision. The Federal Rules specify that it should merge into the final
judgment. See FED. R. CIV. P. 54(b) (“[A]ny order or other decision, however
designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the action as to any of the
claims or parties and may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties’ rights and liabilities.”). And
Acadian might be right that the merger creates an inconsistency between the
jury verdict, the final judgment, and the summary judgment decision. See
Bonner v. Perry, 

, 427 (6th Cir. 2009) (“A grant of partial summary
judgment merges into a final judgment and can be reviewed upon appeal of the
final judgment.”); Zimzores v. Veterans Admin., 

, 266 (5th Cir.
1985) (noting that a court can “any time before final decree . . . modify or
rescind” a partial summary judgment).
      But Acadian never raised this issue with the district court in any way.
See Keelan v. Majesco Software, Inc., 

, 340 (5th Cir. 2005) (“An
argument must be raised to such a degree that the district court has an
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    Case: 19-30320         Document: 00515486215            Page: 16     Date Filed: 07/13/2020



                                         No. 19-30320
opportunity to rule on it.” (quotation omitted)). Thus, we do not simply lack the
district court’s “plenary findings”; we have no “findings” on the issue at all. And
we don’t have them because Acadian never sought them. Since the issue of the
inconsistent judgment was never raised in the district court, Acadian “forfeited
its right to [raise it] on appeal.” 

–05 (citing Yakus v.
United States, 

, 444 (1944) (“No procedural principle is more
familiar to this Court than that a . . . right may be forfeited . . . by the failure
to make timely assertion of the right before a tribunal having jurisdiction to
determine it.”)). 3
                                         *       *      *
       The judgment of the district court is AFFIRMED.




       3  Alternatively, we decline to reverse the district court because it appears to us
Acadian invited the district court’s error in the final judgment, if it was error at all. Cf. United
States v. Page, 

, 1083 (5th Cir. Nov. 1981) (finding invited error when “[n]either
Page nor his counsel ever objected at trial or requested a new trial, waiting instead until now
to urge correction of this oversight”).
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