Appeals from the United States District Court for the Eastern District of Louisiana. D.C. DOCKET NUMBER CA90 2191 M. JUDGE Peter Beer
Before Reynaldo G. Garza, Higginbotham, and DeMOSS, Circuit Judges.
I. FACTS AND PROCEDURAL HISTORY
On June 18, 1989, Plaquemines Parish Sheriff's deputies and a representative of the Louisiana Office of Alcohol and Beverage Control entered Jay Riley's business, the J.U. Lounge, and removed his state and parish alcohol permits and other permits and licenses necessary for him to operate, which effectively closed down his business. In his federal suit, Riley alleges that such actions were unlawful because the Council and sheriff closed his business and suspended his licenses without prior notice or an opportunity for a hearing, violating his right to procedural due process. Because of those allegedly unlawful actions, Riley claims that the Council and Sheriff damaged his business.
On August 24, 1989, Riley filed a petition for damages, writ of mandamus, and temporary restraining order in Louisiana state court against Ernest Wooten, in his capacity as Sheriff of Plaquemines Parish; Luke Petrovich, in his capacity as President of Plaquemines Parish; Larry Dickenson, in his capacity as Commissioner of the Office of Alcohol and Beverage Control; and the State of Louisiana.
The next week, Luke Petrovich filed a petition for revocation and/or suspension of Riley's liquor permit and occupational license with the Plaquemines Parish Council (the Council) alleging: (1) that Riley served alcohol to intoxicated persons, operated a disorderly house, and violated Plaquemines Parish building; codes, and (2) that representatives of Riley possessed and sold drugs on the premises. At a public hearing on September 28, 1989, the Council adopted Resolution Numbers 89-334 and 89-335, which revoked Riley's Plaquemines Parish occupational license and liquor permit. Meanwhile, in the state court suit the defendants filed an exception of prematurity, which the court granted on September 1, 1989. Riley appealed the trial court's ruling. On appeal, because the Council had conducted a hearing and revoked Riley's permit and license, the Louisiana appellate court sustained the dismissal of Riley's case as moot as far as he was seeking the return of his license and permit.
On October 16, 1989, Riley filed a motion and order for devolutive appeal in Louisiana state court challenging the decision of the Council to revoke his permits. The Louisiana trial court dismissed because the suit since Riley had not timely brought it under Louisiana law, which required an aggrieved party to appeal the suspension of their permits within 10 days of being notified of the suspension. See La. R.S. 33:4788.
Not to be deterred, Riley again sued Sheriff Wooten, Petrovich, and the Council in the United States District Court for the Eastern District of Louisiana (USDC) asserting that they violated his right to procedural due process.*fn1 Petrovich filed a motion for summary judgment based on absolute immunity, which was unopposed, and the USDC granted the motion. The Council then filed a motion to dismiss on the ground of res judicata, and on October 8, 1991, the USDC granted the motion. Riley appealed the October 8 dismissal on October 25. Thereafter, on December 2, the USDC dismissed Sheriff Wooten on the ground of res judicata. Riley appealed the December 2 dismissal on January 6.
1. Appellate Jurisdiction
The Council contends that when Riley appealed the order dismissing his claim against it, this Court did not have jurisdiction because the order was interlocutory and there was no Rule 54(b)*fn2 certification. When the USDC dismissed the Council, it had not adjudicated Riley's claim against Sheriff Wooten, and therefore, there was not a final judgment. After the USDC dismissed Sheriff Wooten, Riley appealed the order as to Sheriff Wooten, but did not appeal the order relating to the Council. Therefore, according to the Council, this Court has no appellate jurisdiction over it.
In a multi-party suit, a court's order is final only if it meets one of two conditions: (1) it must adjudicate all the claims of all the parties, or (2) the court must expressly determine there is no just reason for delay and direct an entry of judgment under Rule 54(b). Jetco Electronic Industries, Inc., v. Gardiner, 473 F.2d 1228, 1231 (5th Cir. 1973).
To support its contention that we do not have appellate jurisdiction over it, the Council directs us to the cases of Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166 (5th Cir. 1978) and United States v. Taylor, 632 F.2d 530 (5th Cir. 1980). In Kirtland, the plaintiff sued his employer, McDermott, under the Jones Act and general maritime law. Kirtland, at 1168. Later he sued an additional defendant, Columbia Gulf Transmission Company. Id. The trial court then granted a summary judgment to Columbia and the plaintiff appealed. Id. One day after the appeal was docketed, the trial court entered a Rule 54(b) order stating there was no just reason for delaying an entry of final judgment. Id. On appeal, this court dismissed the appeal holding that when "more than one ...