Narriman Fakier v. State of La., Board of Supervisory for Univ. of La. System

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-111

NARRIMAN FAKIER

VERSUS

STATE OF LOUISIANA, BOARD OF SUPERVISOR[S] FOR THE
UNIVERSITY OF LOUISIANA SYSTEM , ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 104,587-G
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
Elizabeth A. Pickett, Judges.

APPEAL DISMISSED.

Steven J. Dupuis
Special Assistant Attorney General
P. O. Drawer 4425
Lafayette, LA 70502-4425
Telephone: (337) 233-6070
COUNSEL FOR:
Defendant/Appellee - Board of Supervisors of the University of
Louisiana System through the University of Louisiana at Lafayette

Edmond L. Guidry, III
324 South Main Street
St. Martinville, LA 70582
Telephone: (337) 394-7116
COUNSEL FOR:
Plaintiff/ Appellant - Narriman Fakier

THIBODEAUX, Chief Judge.

In 2005, plaintiff-appellant, Narriman Fakier (Fakier), brought claims

against her employer, defendant-appellee, the Board of Supervisors of the University

of Louisiana System Through the University of Louisiana at Lafayette (Board), for

wrongful termination, retaliatory discharge, violations of state whistle blower

statutes, and violation of the First Amendment right of free speech. The Board filed

a document entitled “Peremptory Exceptions of No Cause of Action and/or No Right

of Action,” based upon the First Amendment claim. The trial court granted the

exception of no cause of action, denied the exception of no right of action, and

dismissed the First Amendment claim. The partial judgment signed by the trial court

was designated as a final judgment. Fakier immediately appealed the judgment. For

the reasons set forth below, we find that the trial court improperly certified the partial

judgment as final, and we dismiss the appeal.

I.

ISSUES

We must decide:

(1) whether the partial judgment of the trial court,
granting Defendant’s exception as to one of
Plaintiff’s claims is a final judgment for purposes of
an immediate appeal; and, if so

(2) whether the trial court erred in granting the
exception and dismissing Plaintiff’s claim for
employer violation of the First Amendment right of
free speech.

II.

FACTS AND PROCEDURAL HISTORY

Narriman Fakier was employed in the field of animal research at the

University of Louisiana at Lafayette with the New Iberia Research Center (NIRC)

between 2002 and 2004. During her tenure, she disagreed with and voiced her

concerns about methods and procedures used in testing the primates at NIRC, such

as the administration of group anesthesia. Fakier also took issue with the care given

to the primates, including an alleged incident involving cruelty toward the chimps by

a certain employee, who was apparently terminated for the behavior. In her Petition

for Damages, Fakier alleged violations of the Animal Welfare Act and stated that she

complained to her supervisor and the director of NIRC to no avail. Her petition states

that she was told by the director in 2003 that her concerns would not be addressed

and that, if she had a problem with that, she should quit.

Fakier’s petition further states that on February 4, 2004, she wrote her

supervisor a letter via e-mail, complaining about an alleged relocation of the chimps.

Her petition alleges that on February 6, 2004, she was forced to resign her position

as coordinator for NIRC due to her use of poor judgment, failure to follow chain of

command, failure to comply with counseling, threatening the security of NIRC, and

insubordination. Fakier’s petition further alleges that on February 8, 2004, she

forwarded correspondence to the chairperson of the Institutional Animal Care and

Use Committee (IACUC) of NIRC, an oversight committee relied upon by the

government to monitor its own house. She alleges that she filed claims with the

USDA and other outside agencies, but does not provide dates for those filings.

Fakier’s petition alleges that she is the original source for the facts and information

alleged in the petition and that the facts averred are based upon her personal

observation.

The trial court sustained the exception of no cause of action on the basis

that Fakier’s speech was pursuant to her job duties and was, therefore, subject to

employer discipline and not protected by the First Amendment. The August 2007

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Judgment, prepared by Fakier and disapproved by the Board, states that the Judgment

is designated as a final judgment. Fakier filed a Petition for Appeal and an Order,

both of which state that there is no just reason for delaying the appeal. The Order is

signed by the trial judge. However, other than a conclusory statement that there is no

just reason for delay, no specific reasons for that finding were given.

III.

LAW AND DISCUSSION

Standard of Review

The proper standard of review for an order designating a judgment as

final and immediately appealable, when the order is accompanied by explicit reasons

for the certification, is whether the trial court abused its discretion. However, if the

trial court fails to give explicit reasons for the certification, the appellate court should

conduct a de novo determination of whether the certification was proper. R.J.

Messinger, Inc. v. Rosenblum, 04-1664 (La. 3/2/05), 894 So.2d 1113. Accordingly,

we will conduct a de novo review. Likewise, because the peremptory exception of

no cause of action raises a question of law and the district court’s decision is based

solely on the sufficiency of the petition, review of the district court’s ruling on a

peremptory exception of no cause of action is de novo. Scheffler v. Adams and Reese,

LLP, 06-1774 (La. 2/22/07), 950 So.2d 641.

The Law on Partial Judgments and La.Code Civ.P. art. 1915

In the present case, the trial court sustained an exception of no cause of

action, dismissing only one of Fakier’s claims, the alleged violation of her First

Amendment right of free speech. Fakier asserts that it was error to dismiss the claim

because it arose out of the same operative facts as her other claims for wrongful

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termination, retaliatory discharge and violation of state whistle blower statutes. She

further argues that the trial court erred in dismissing her claim and in finding that her

speech was made pursuant to her official job duties as a public employee and,

therefore, not protected from employer discipline by the First Amendment. The

Board argues that, as a threshold matter, the appeal is premature and should be

dismissed as to a violation of the First Amendment right of free speech.

Alternatively, the Board argues that the trial court properly dismissed the claim

because Fakier’s petition repeatedly indicates that she spoke pursuant to her job

duties wherein she alleged that she was forced to resign two days after sending an e-

mail to her supervisor about animal safety violations, but two days before forwarding

the e-mail to an outside agency.

Because we find that the judgment in this case was improperly certified

as a final, immediately appealable judgment, we do not reach the issue of whether

there was a free speech cause of action stated in Fakier’s petition.

More specifically, La.Code Civ.P. art. 1915 states as follows:

Art. 1915. Partial final judgment; partial judgment; partial
exception; partial summary judgment

A. A final judgment may be rendered and signed by the
court, even though it may not grant the successful party or
parties all of the relief prayed for, or may not adjudicate all
of the issues in the case, when the court:

(1) Dismisses the suit as to less than all of the
parties, defendants, third party plaintiffs, third party
defendants, or intervenors.

(2) Grants a motion for judgment on the pleadings,
as provided by Articles 965, 968, and 969.

(3) Grants a motion for summary judgment, as
provided by Articles 966 through 969, but not including a
summary judgment granted pursuant to Article 966(E).

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(4) Signs a judgment on either the principal or
incidental demand, when the two have been tried
separately, as provided by Article 1038.

(5) Signs a judgment on the issue of liability when
that issue has been tried separately by the court, or when,
in a jury trial, the issue of liability has been tried before a
jury and the issue of damages is to be tried before a
different jury.

(6) Imposes sanctions or disciplinary action pursuant
to Article[s] 191, 863, or 864 or Code of Evidence Article
510(G).

B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to
one or more but less than all of the claims, demands,
issues, or theories, whether in an original demand,
reconventional demand, cross-claim, third party claim, or
intervention, the judgment shall not constitute a final
judgment unless it is designated as a final judgment by the
court after an express determination that there is no just
reason for delay.

(2) In the absence of such a determination and
designation, any order or decision which adjudicates fewer
than all claims or the rights and liabilities of fewer than all
the parties, shall not terminate the action as to any of the
claims or parties and shall not constitute a final judgment
for the purpose of an immediate appeal. Any such order or
decision issued may be revised at any time prior to
rendition of the judgment adjudicating all the claims and
the rights and liabilities of all the parties.

C. If an appeal is taken from any judgment rendered under
the provisions of this Article, the trial court shall retain
jurisdiction to adjudicate the remaining issues in the case.

The Board argues that the judgment in this case is not final and

immediately appealable because the trial court did not perform any of the enumerated

actions in La.Code Civ.P. art. 1915 A. Fakier argues that the judgment is final and

immediately appealable under La.Code Civ.P. art 1915 B, which was added by the

passage of Act 483 in 1997, because under B(1) the trial court designated the

judgment as a final judgment after an express determination that there is no just

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reason for delay. In 2005, our Louisiana Supreme Court in R.J. Messinger, Inc. v.

Rosenblum, 894 So.2d 1113, provided an in depth analysis of La.Code Civ.P. art.

1915 in order to determine what constitutes an express determination by the court and

in order to settle the split in the circuits regarding that issue.

In the Messinger case, the court discussed the addition of subsection B

to La.Code Civ.P. art. 1915 in 1997, and its further revision in 1999 wherein language

was deleted that had authorized the parties to agree that a partial judgment constituted

a final judgment for purposes of an immediate appeal. In discussing our policies

against multiple appeals and piecemeal litigation, and our operating principles of

sound judicial administration that promotes judicial efficiency and economy, the court

articulated as follows:

In order to assist the appellate court in its review of
designated final judgments, the trial court should give
explicit reasons, either oral or written, for its determination
that there is no just reason for delay. However, if the trial
court fails to do so, we find the appellate court cannot
summarily dismiss the appeal [as in Fourth Circuit cases].
For purposes of judicial efficiency and economy, we
approve the approach taken by the First, Third and Fifth
circuits, and hold the proper standard of review for an
order designating a judgment as final for appeal purposes
when accompanied by explicit reasons is whether the trial
court abused its discretion. If no reasons are given but
some justification is apparent from the record, the appellate
court should make a de novo determination of whether the
certification was proper. Of course, if after examination of
the record the propriety of the certification is not apparent,
the court of appeal may request a per curiam from the trial
judge. Alternatively, the court of appeal could issue a rule
to show cause to the parties requiring them to show why
the appeal should not be dismissed for failure to comply
with La.Code Civ.P. art.1915, when the propriety of the
certification is not apparent and the trial court has failed to
give reasons for its certification.

R.J. Messinger, Inc., 894 So.2d at 1122 (emphasis added).

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The Messinger court then listed the non-exclusive factors developed in

Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3rd Cir. 1975),

regarding Federal Rule of Civil Procedure 54(b), for use by trial judges when

considering whether a partial judgment should be certified as appealable, and for use

by appellate courts when conducting de novo reviews in matters where the trial court

fails to give explicit reasons for the certification. The Allis-Chalmers factors are as

follows:

1) The relationship between the adjudicated and
unadjudicated claims;

2) The possibility that the need for review might or might
not be mooted by future developments in the trial court;

3) The possibility that the reviewing court might be obliged
to consider the same issue a second time; and

4) Miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of trial,
frivolity of competing claims, expense, and the like.

R.J. Messinger, Inc., 894 So.2d at 1122.

In the redhibition case of Berman v. De Chazal, 98-81 (La.App. 5 Cir.

5/27/98), 717 So.2d 658, approved of in Messinger, the Fifth Circuit dismissed an

appeal after considering the Allis-Chalmers factors in a de novo review. The Berman

court articulated as follows:

Historically, both the federal and Louisiana courts
have maintained policies against partial appeals in
on-going cases. As stated in Everything On Wheels
Subaru, Inc. v. Subaru South Inc.[,] 616 So.2d 1234
(La.1993), if all partial judgments relating to only some
claims or defenses or less than all parties were routinely
appealed, “there would be intolerable problems of multiple
appeals and piecemeal litigation.” On the other hand, it
was also recognized in the federal system that there were
situations in which fairness to the parties counseled
allowing immediate, although partial, appeals. In this latter
circumstance, the federal rule granted to trial judges the
discretion to weigh the competing factors of sound judicial

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administration and justice to the litigants, and to certify
partial final judgments for appeal when justice to the
litigants preponderated, Curtiss-Wright Corp. v. General
Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1
(1980). This procedure also resolves the problem of
litigants often having to speculate about whether a partial
judgment should be appealed immediately or after the
remainder of the case is resolved, see Everything on
Wheels Subaru, Inc. v. Subaru South, Inc., supra.

Berman v. De Chazal, 717 So.2d at 660.

After listing the Allis-Chalmers factors, the Berman court decided as

follows:

[W]e find that the interest of judicial administration far
outweighs any considerations of justice to the parties in
regard to the appealability of the partial judgments entered
in the case. It is evident that the partial judgment will not
terminate the suit, and that the same parties will continue
to litigate the remaining issues. At least one claim for
relief, i.e. re[s]cission of the sale, if granted because of the
roof problem, would render the present appeal moot. Were
we to reverse the judgment on grounds that there still exist
material facts in dispute as to the latency of some of the
alleged defects, we would very possibly have to review
those matters again on another appeal. Finally, judicial
administration has obviously been negatively effected
because presumably the remainder of the case has been
delayed pending the outcome of this appeal. If indeed it
has not been stayed, and the matter has gone to judgment
on the remaining issues (on the authority of Art.1915(C)),
then were we to reverse the judgment before us and remand
these issues for trial, the result would be piecemeal
litigation of the most intolerable kind. Having determined
that it was improper for the trial judge to have certified the
present partial judgment as appealable because the interest
of judicial administration far outweigh any equitable
considerations for the litigants, we hereby dismiss this
appeal.

Berman v. De Chazal, 717 So.2d at 661.

Similarly, in the present case, the partial judgment on the First

Amendment issue will not terminate the suit, and the same parties will continue to

litigate the remaining issues of wrongful termination, retaliatory discharge, and

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violation of state whistle blower statutes. Moreover, the plaintiff admits that all

claims arise out of the same operative facts. Therefore, the same witnesses, evidence,

and facts will be introduced, resulting in duplicate trials of the issues. Furthermore,

discovery is sparse at this stage and ongoing; therefore, future developments may

moot any current review. Likewise, there is a possibility that we may have to

consider the same issue a second time. If we reverse, we may possibly have to

consider a motion for summary judgment on the same issue. We also note that, the

exception of no cause of action is peremptory and can be brought after a trial on the

merits, and, pursuant to La.Code Civ.P. art 1915 B(2), the trial court’s decision

granting the exception at issue may be revised at any time prior to rendition of the

judgment adjudicating all of the claims and the rights and liabilities of all the parties.

Finally, as in Berman, judicial administration has clearly been negatively

affected because the remainder of the case has presumably been delayed pending the

outcome of this appeal. If the matter has gone to judgment on the remaining issues

(on the authority of Art. 1915(C)), then were we to reverse the judgment before us

and remand these issues for trial, the result would be piecemeal litigation.

IV.

CONCLUSION

Accordingly, based upon the foregoing, we find that the judgment at

issue in this case was improperly certified as a final, immediately appealable

judgment, and we hereby dismiss the appeal.

APPEAL DISMISSED.

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