from the United States District Court For the Northern
District of Texas
KING, HIGGINSON, and COSTA, Circuit Judges.
COSTA, Circuit Judge.
typically may appeal only after a court has entered final
judgment resolving all claims. But the growth of multiclaim
and multiparty litigation led to Federal Rule of Civil
Procedure 54(b), which allows entry of an appealable judgment
on one or more claims even when trial court litigation
remains for other claims. 10 Charles Alan Wright et al., Fed.
Prac. & Proc. §§ 2653, 2654 (4th ed. 2014)
(chronicling the history and purpose of Rule 54(b)). A
partial final judgment is meant to prevent the "hardship
and denial of justice through delay if each issue must await
the determination of all issues as to all parties before a
final judgment can be had." Dickinson v. Petroleum
Conversion Corp., 338 U.S. 507, 511 (1950).
rule that is supposed to promote efficiency turned out to be
a pitfall for the plaintiff in this mortgage foreclosure
case. After the district court rejected all but one claim, it
entered a Rule 54(b) judgment allowing an appeal before the
final claim was resolved. But thirty days passed without an
appeal. Only after the district court resolved the lingering
claim and entered final judgment did the plaintiff appeal
rulings from both judgments. We decide whether the missed
deadline for appealing the Rule 54(b) judgment prevents the
appellant from challenging those rulings in a later appeal
from the final judgment.
case is about Teresa Johnson's home equity loan. Ocwen
Loan Servicing began servicing the loan in 2011, and Wells
Fargo owns the loan. Sometime in 2014, Johnson's husband
lost his job and she fell behind in her loan payments.
Johnson wanted a loan modification, but either she never
completed the application or Ocwen failed to act on it.
Eventually Ocwen sought an expedited foreclosure order in
state court. Johnson filed this federal suit in response,
which led to the dismissal of the foreclosure action.
originally asserted five claims against Ocwen: three under
the Texas Debt Collection Act and two under the federal Real
Estate Settlement Procedures Act.  After receiving
recommendations from the magistrate judge, the district court
granted summary judgment for Ocwen on both federal claims and
the two state claims that alleged misrepresentations in
connection with debt collection. But it sent the remaining
state claim, which relied on Texas's general prohibition
on "threatening to take an action prohibited by
law," Tex. Fin. Code § 392.301(a)(8), back to the
magistrate judge for further scrutiny.
January 4, 2018, with the final claim still pending, the
district court entered a Rule 54(b) judgment on the four
remaining debt collection claim did not take long to resolve.
By the end of the month, with the new magistrate report in
hand, the district court granted summary judgment on that
claim and entered final judgment on January 31.
appealed on March 1, within 30 days of the January 31st final
judgment but more than 30 days after entry of the Rule 54(b)
appeal focuses on the federal claims that were dismissed in
that Rule 54(b) judgment. That partial final judgment started
its own clock for filing a notice of appeal. Smith v.
Mine Safety Appliances Co., 691 F.2d 724, 725 (5th Cir.
1982). Because Johnson filed her notice more than thirty days
after entry of the Rule 54(b) judgment dismissing the Real
Estate Settlement Procedures Act claims, her appeal of those
rulings is untimely. Id.; see also Bowles v.
Russell, 551 U.S. 205, 209 (2007) (noting that the time
limit for appealing in civil cases is mandatory and
and avoid the time bar, Johnson argues that the Rule 54(b)
judgment was unauthorized because: (1) the rule applies to
cases with multiple claims but she only brought one, and (2)
the district court failed to explain why it found "that
there is no just reason for delay." Fed.R.Civ.P. 54(b).
As a preliminary matter, we have doubts that an appeal of the
final judgment allows a collateral attack on the propriety of
a Rule 54(b) judgment from which an appeal was not taken.
When dismissing untimely appeals of Rule 54(b) judgments, we
have never evaluated a judgment's validity. See,
e.g., Udeiwev. Texas Tech Univ., 733
Fed.Appx. 788, 791-92 (5th Cir. 2018); Martin v.
Zoley, 603 Fed.Appx. 349, 350 (5th Cir. 2015);
Smith, 691 F.2d at 725. That said, at least two
circuits have allowed collateral attacks on the validity of a
partial judgment when the appellant waits to appeal until
after the final judgment. See Granack v. Continental Cas.
Co., 977 F.2d 1143, 1145 (7th Cir. 1992) (holding that a
Rule 54(b) judgment lacking the statement that there is
"no just reason for delay" is defective and does
not start the appellate clock); Page v. Pressier,
585 F.2d 336, 338 (8th Cir. 1978) (allowing a party appealing
the final judgment to challenge a Rule 54(b) judgment on the
ground that it "incorrectly categorized' the case as
one involving multiple claims). The leading federal procedure
treatise suggests that litigants facing an invalid Rule 54(b)
judgment pursue another route for fixing it: file a timely
notice of appeal from the judgment that argues, in addition
to challenging the merits of the rulings, that the partial
judgment is defective. 15A Wright et al., Fed. Prac. &
Proc. § 3914.7, at ...