Marcus Smith v. Lowes Companies, Incorporated

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1490
MARCUS SMITH,
Plaintiff - Appellant,
v.
LOWES COMPANIES, INCORPORATED,
Defendant - Appellee,
and
ROXANNE TOBLETES, Head Cashier; MACK WIGGINS, ASM; ARTIE
BROOKER, ASM; BETH LNU,
Defendants.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Robert J. Conrad, Jr., District Judge. (3:21-cv-00034-RJC-DSC)
Submitted: October 28, 2021 Decided: July 22, 2022
Before GREGORY, Chief Judge, RUSHING, Circuit Judge, and FLOYD, Senior Circuit
Judge.
Dismissed and remanded by unpublished per curiam opinion. Judge Rushing dissents.
Marcus Smith, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcus Smith seeks to appeal the district court’s order dismissing his amended
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim. This court
may exercise jurisdiction only over final orders, 28 U.S.C. § 1291, and certain interlocutory
and collateral orders, 28 U.S.C. § 1292; Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 545-46 (1949). “Ordinarily, a district court order is not final
until it has resolved all claims as to all parties.” Porter v. Zook, 803 F.3d 694, 696 (4th
Cir. 2015) (internal quotation marks omitted).
Our review of the record reveals that the district court did not adjudicate all of the
claims raised in the amended complaint. Id. at 696-97. Specifically, although the district
court recognized that Smith raised a claim of discriminatory failure to promote, the court
did not specifically address that claim as a separate, freestanding claim distinct from
Smith’s claims of failure to accommodate a disability, unequal terms and conditions of
employment, and retaliation. We conclude that the order Smith seeks to appeal is neither
a final order nor an appealable interlocutory or collateral order. Accordingly, we dismiss
the appeal for lack of jurisdiction and remand to the district court for consideration of the
unresolved failure to promote claim. Id. at 699.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
DISMISSED AND REMANDED

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