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Dennis v. Complete Care Svcs, 00-10673 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 00-10673 Visitors: 24
Filed: Jan. 02, 2001
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 00-10673 Summary Calendar WANDA DENNIS, Plaintiff - Appellant, VERSUS COMPLETE CARE SERVICES LP; COMPLETE CARE SERVICES OF TEXAS, INC., Defendants - Appellees. Appeal from the United States District Court For the Northern District of Texas ( 4:99-CV-457-Y ) December 27, 2000 Before EMILIO M. GARZA, STEWART, and PARKER, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Wanda Dennis appeals from the district court’s order staying her civil ri
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                   UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                            No. 00-10673
                          Summary Calendar



                           WANDA DENNIS,

                                               Plaintiff - Appellant,


                               VERSUS


                     COMPLETE CARE SERVICES LP;
               COMPLETE CARE SERVICES OF TEXAS, INC.,

                                             Defendants - Appellees.




           Appeal from the United States District Court
                For the Northern District of Texas
                         ( 4:99-CV-457-Y )
                         December 27, 2000


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

PER CURIAM:*

      Plaintiff-Appellant Wanda Dennis appeals from the district

court’s order staying her civil rights suit until it is determined

whether or not her attorney has been disbarred. Dennis argues that

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opinion should not be published and is not precedent except under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

                                 1
this court has jurisdiction under 28 U.S.C. § 1291, § 1292(a)(1),

and the collateral order doctrine.             She argues that because she

cannot afford substitute counsel, the order effectively denies her

First Amendment right of access to the courts, her Fifth Amendment

right to due process, her Sixth Amendment right to effective

assistance of counsel, and her Seventh Amendment right to trial by

jury.

      To assert jurisdiction under 28 U.S.C. § 1291, the district

court’s order must be a final decision.             See Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 
460 U.S. 1
, 9 (1983).                 An order

granting a stay of proceedings is deemed final for purposes of

appellate jurisdiction when the stay requires “all or essentially

all   of   the   suit   to    be   litigated   in   state   court.”     K-Mart

Corporation v. Aronds, 
123 F.3d 297
, 300 (5th Cir. 1997).                  The

order does not become final when “a district court enters an order

staying its own proceedings in favor of other proceedings within

the same federal judicial system.”           Kershaw v. Shalala, 
9 F.3d 11
,

14 (5th Cir. 1993).          Because the district court’s order does not

require Dennis’s suit to be litigated in state court, it is not a

final decision for purposes of this Court’s appellate jurisdiction.

      An   interlocutory       order   is   appealable   under   28   U.S.C.   §

1292(a)(1) if the order “has the same practical effect as granting

or denying an injunction . . . [and] a party shows that the order

has serious, perhaps irreparable, consequence.”              Rauscher Pierce


                                        2
Refsnes,    Inc.    v.    Birenbaum,       
860 F.2d 169
   (5th   Cir.     1988)

(discussing Gulfstream Aerospace Corp. v. Mayacamas Corp., 
485 U.S. 271
(1988)).       The district court’s order does not have the same

effect as an injunction for purposes of section 1292(a)(1) and

therefore is not subject to appellate review.                     See id.; Jolley v.

Paine Webber Jackson & Curtis, Inc., 
864 F.2d 402
, 403-04 (5th Cir.

1989).

       The collateral order doctrine allows a litigant to appeal a

district court’s order if the order satisfies the following:

       (1) The order must finally dispose of an issue so that

       the district court’s decision may not be characterized as

       tentative, informal or incomplete; (2) the question must

       be serious and unsettled; (3) the order must be separable

       from, and collateral to, the merits of the principle

       case; and (4) there must be a risk of irreparable loss if

       an immediate appeal is not heard because the order will

       be   effectively     unreviewable         on     appeal     from    final

       judgment.

Kershaw, 9 F.3d at 14
(citing Coopers & Lybrand v. Livesay, 
437 U.S. 463
,     468-69     (1978)).      Stay      orders     rarely    satisfy    these

requirements, and this case is no exception.                  See 
id. Plaintiff’s alleged
financial inability to hire substitute counsel is not the

type   of   irreparable     loss    that       the    collateral     order   doctrine

addresses.


                                           3
     In sum, this Court has no jurisdiction to review the district

court’s   order   under   28   U.S.C.       §   1291,   §   1292(a)(1),   or   the

collateral order doctrine.       The appeal is therefore dismissed.

DISMISSED




                                        4

Source:  CourtListener

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