Tressa Sherrod v. Wal-Mart Stores, Inc.; Wal-Mart Stores East, Lp; Wal-Mart Store 2124

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0121p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
TRESSA SHERROD; JOHN CRAWFORD, JR.; JHC, IV AND
JC, minors, JOHN CRAWFORD, JR. as guardian and next
friend of JHC, IV and JC,
Plaintiffs-Appellants,
v.
WAL-MART STORES, INC.; WAL-MART STORES EAST,
LP; WAL-MART STORE #2124,
Defendants-Appellees.
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No. 21-3428
Appeal from the United States District Court for the Southern District of Ohio at Dayton.
No. 3:14-cv-00454—Walter H. Rice, District Judge.
Argued: January 16, 2024
Decided and Filed: May 29, 2024
Before: McKEAGUE, READLER, and DAVIS, Circuit Judges.
_________________
COUNSEL
ARGUED: Warren N. Sams, III, THE SAMS LAW FIRM, Atlanta, Georgia, for Appellants.
D. Patrick Kasson, REMINGER CO., L.P.A., Columbus, Ohio, for Appellees. ON BRIEF:
Warren N. Sams, III, THE SAMS LAW FIRM, Atlanta, Georgia, Michael L. Wright, WRIGHT
& SCHULTE, LLC, Dayton, Ohio, Samuel L. Starks, THE COCHRAN FIRM ATLANTA,
Atlanta, Georgia, for Appellants. D. Patrick Kasson, REMINGER CO., L.P.A., Columbus,
Ohio, for Appellees.
>

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_________________
OPINION
_________________
CHAD A. READLER, Circuit Judge. Police officers shot and killed John H. Crawford,
III inside an Ohio Wal-Mart store. The incident prompted Crawford’s estate to sue the retailer
under several theories, including wrongful death. The district court granted Wal-Mart summary
judgment on the wrongful death count, but denied the company summary judgment as to the
others. The district court then certified its dismissal of the wrongful death cause of action for
immediate appellate review under Rule 54(b) of the Federal Rules of Civil Procedure.
Concluding that certification was improper, we dismiss the appeal for lack of jurisdiction.
I.
The record reveals an unfortunate and, ultimately, tragic chain of events. While visiting
Wal-Mart’s sporting goods department, John H. Crawford, III picked up an unpackaged
Crosman MK-177 pellet gun. He then carried the pellet gun—which resembles an AR-15 assault
rifle—around the store. Alarmed at the sight, a fellow customer phoned 911 to report that
someone was loading and waving a weapon in the building.
Responding officers Sean Williams and David Darkow arrived at the scene. Observing
Crawford with the pellet gun, Darkow commanded him to drop the weapon and get on the
ground. Williams believed that Crawford was carrying a genuine assault rifle, which he was
about to fire. So Williams fatally shot Crawford within seconds of Darkow’s command.
Tressa Sherrod, executrix of Crawford’s estate, along with members of Crawford’s
family, filed suit against Wal-Mart, asserting negligence, premises liability, survivorship, loss of
consortium, and wrongful death. Plaintiffs asserted that Wal-Mart was at fault because the pellet
gun’s missing packaging included a warning against publicly displaying the gun to prevent
others from mistaking it for a real firearm. They added that store employees failed to take
reasonable steps to warn Crawford once they learned he was holding the pellet gun and that law
enforcement was involved. Following summary judgment briefing, the district court dismissed
the wrongful death count. But the others remained for trial. At plaintiffs’ request, the district

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court entered final judgment on the wrongful death cause of action under Rule 54(b) of the
Federal Rules of Civil Procedure. Plaintiffs in turn timely appealed the grant of summary
judgment on that count.
II.
Before resolving an appeal’s merits, we must first assure ourselves of our jurisdiction to
do so. T.M. ex rel. H.C. v. DeWine, 49 F.4th 1082, 1087 (6th Cir. 2022); see Gavitt v. Born, 835
F.3d 623, 638 (6th Cir. 2016) (“[A]lthough the certification has not been challenged, the court
must still satisfy itself that the certification was proper. Otherwise, appellate jurisdiction is
lacking.” (citation omitted)). That hallmark of appellate review begins and ends today’s
proceeding. Plaintiffs have not appealed from a final appealable order nor otherwise properly
secured appellate jurisdiction.
For ages, common law courts have employed a “final judgment rule” to govern when a
case becomes ripe for appeal. See 15A Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3906 (3d ed. 2023); Carleton M. Crick, The Final
Judgment as a Basis for Appeal, 41 Yale L.J. 539, 540–41 (1932). The rule instructs that “a
party may not take an appeal . . . until there has been a decision by the [trial] court that ends the
litigation on the merits and leaves nothing for the court to do but execute the judgment.”
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981) (cleaned up). Federal law sets
this standard by statute: appellate jurisdiction customarily extends only to review of “final
decisions.” See 28 U.S.C. § 1291. While at times frustrating to litigants, this practice carries a
worthy aim—to “preserve[] the proper balance between trial and appellate courts, minimize[] the
harassment and delay that would result from repeated interlocutory appeals, and promote[] the
efficient administration of justice.” Microsoft Corp. v. Baker, 582 U.S. 23, 36–37 (2017).
Generally speaking, a final decision is one that disposes of all claims and parties in a
case. Adler v. Elk Glenn, LLC, 758 F.3d 737, 739 (6th Cir. 2014) (per curiam) (Sutton, J.,
concurring); see McLish v. Roff, 141 U.S. 661, 665–66 (1891) (explaining that the final judgment
rule aspires “to have the whole case and every matter in controversy in it decided in a single
appeal”). All agree that plaintiffs’ appeal does not arise from a final judgment in this traditional

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sense. But there are some narrow exceptions to the final judgment rule, one of which is at play
here—Federal Rule of Civil Procedure 54(b). The Rule concerns cases that “present[] more than
one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or
when multiple parties are involved.” Fed. R. Civ. P. 54(b). In those instances, the district court
“may direct entry of a final judgment as to one or more, but fewer than all, claims or parties,” but
“only if the court expressly determines that there is no just reason for delay.” Id. In this way,
Rule 54(b) addresses the complexities that can attend to the liberal joinder provisions in the
Federal Rules by seeking to avoid unnecessary delays in entering final judgment as to claims or
parties which are distinct from those remaining before the district court. See 10 Charles Alan
Wright & Arthur R. Miller, Federal Practice and Procedure § 2654 (4th ed. 2023). At the same
time, this vehicle may not be used as an end run around the final judgment rule. See Sears,
Roebuck & Co. v. Mackey, 351 U.S. 427, 440 (1956) (Frankfurter, J., concurring) (recognizing
that Rule 54(b) does not upset the federal prohibition against piecemeal appeals).
A.1. For certification to be appropriate under Rule 54(b), the district court must have
entered final judgment as to at least one claim or party in the case. Gen. Acquisition, Inc. v.
GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994). Plaintiffs contend that the district court’s
entry of final judgment here was appropriate because the wrongful death cause of action was a
distinct claim for purposes of Rule 54(b). On appeal, we view that conclusion through a de novo
lens. Lowery v. Fed. Express Corp., 426 F.3d 817, 821 (6th Cir. 2005).
As used in Rule 54(b), ‘“claim’ is a term of art.” In re Fifth Third Early Access Cash
Advance Litig., 925 F.3d 265, 273 (6th Cir. 2019). It is “the aggregate of operative facts which
give rise to a right enforceable in the courts.” McIntyre v. First Nat’l Bank of Cincinnati, 585
F.2d 190, 192 (6th Cir. 1978) (per curiam) (citation omitted). In that sense, two separate causes
of action (say, for example, one for retaliation and one for breach of contract) can amount to one
“claim,” as that latter term is understood in this setting. See Lowery, 426 F.3d at 821. So in
considering a complaint with multiple causes of action (or counts), we ask whether the district
court’s judgment resolved a matter that is “distinct” from the remaining causes of action still
before the district court. See EJS Props., LLC v. City of Toledo, 689 F.3d 535, 538 (6th Cir.
2012); Novia Commc’ns, LLC v. Weatherby, 798 F. App’x 890, 893 (6th Cir. 2020).

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Returning to the definition above, adjudicated and unadjudicated causes of action present
separate claims when the operative facts underlying the two are distinct. McIntyre, 585 F.2d at
192. If not, Rule 54(b) certification is inappropriate.
Assessing whether the dismissed count is different from those remaining before the
district court is often “trickier than it sounds.” In re Fifth Third, 925 F.3d at 273. Start with
cases where we have found that Rule 54(b) certification was proper. That was the case, for
example, in Gavitt v. Born. There, a plaintiff obtained certification to appeal several dismissed
due process causes of action following a wrongful conviction (e.g., Brady violations against
prosecutors and assertions that police officers conducted an incomplete investigation), even
though one of the plaintiff’s causes of action against a lab technician for the knowing fabrication
of test reports survived a motion to dismiss. Gavitt, 835 F.3d at 629–30, 635–37. Certification
was appropriate because the adjudicated and unadjudicated counts concerned “separate actions
taken by different actors with different roles in [plaintiff’s] criminal case.” Id. at 638. The key
considerations, again, were the operative facts giving rise to each cause of action. See also, e.g.,
GenCorp, Inc. v. Olin Corp., 390 F.3d 433, 442–43 (6th Cir. 2004) (holding that a cause of
action related to hazardous waste disposal raised a distinct claim from a cause of action
stemming from an alleged failure to obtain insurance); In re Fifth Third, 925 F.3d at 274
(holding that a breach of contract count and a failure to disclose count raised distinct claims
because they “stem[med] from different acts or omissions”).
Consider next cases on the other side of the ledger. As we have recognized, causes of
action do not necessarily address distinct claims merely because they rest on separate legal
theories, McIntyre, 585 F.2d at 192 (state cause of action for fraudulent conveyance not distinct
from federal securities law cause of action), request different forms of relief, Gen. Acquisition,
23 F.3d at 1029 (count asserting compensatory damages not distinct from count seeking
disgorgement in the context of an attempted hostile takeover), or are pleaded separately, EJS
Props., 689 F.3d at 538. So too where causes of action require different elements of proof.
Lowery, 426 F.3d at 821. Instead, in cases where we have rejected certification, we have done so
because the adjudicated and unadjudicated causes of action arose out of the same underlying
operative facts. Id.

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That was the case in Lowery. Lowery and his employer settled an internal grievance,
with his employer promising not to retaliate against Lowery due to his earlier complaint. Id. at
820. Later, after being denied a pay increase, Lowery sued his employer under Title VII for race
discrimination and retaliation and under state law for breach of contract in light of his
employer’s earlier promise. Id. The district court granted the employer’s motion for summary
judgment on the Title VII counts but it denied the motion as to the breach of contract count. Id.
It then certified the Title VII counts for immediate appellate review under Rule 54. Id. On
appeal, we concluded that certification was improper. Because the retaliation underlying the
Title VII cause of action also formed the basis for the remaining breach of contract cause of
action, “both causes of action arose out of the same aggregate of operative facts,” meaning the
respective causes of action did not reflect distinct claims for Rule 54(b) purposes. Id. at 821.
Today’s case resembles Lowery. Plaintiffs’ unadjudicated causes of action for
negligence, premises liability, survivorship, and loss of consortium arise from the same acts or
omissions as their adjudicated wrongful death cause of action. For each, the same operative facts
control: Wal-Mart’s alleged negligence in its pellet gun display policy as well as its failure to
secure the gun and warn Crawford, leading to his death. See Ohio Rev. Code Ann. § 2125.01
(West 2024) (providing for a wrongful death cause of action when “wrongful act, neglect, or
default” causes a person’s death). The district court entered final judgment on the wrongful
death cause of action. Yet the same basic set of facts—Wal-Mart’s alleged negligence—
underlies plaintiffs’ unadjudicated causes of action remaining for trial. In Rule 54(b) parlance,
each cause of action arises out of the same claim. Accordingly, Rule 54(b) certification was
improper.
A.2. Plaintiffs urge us to view Rule 54(b) certification in a different light. Echoing the
district court’s decision, they contend their remaining causes of action should be deemed distinct
from their adjudicated one because they seek to recover for different injuries. Specifically, they
say, the wrongful death cause of action resolved against them seeks to redress injuries to
Crawford’s beneficiaries caused by his death, while their remaining survivorship cause of action
seeks recovery for Crawford’s injuries before death. See Peters v. Columbus Steel Castings Co.,
873 N.E.2d 1258, 1261 (Ohio 2007).

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To plaintiffs’ mind, this result is consistent with Lowery and In re Fifth Third. But
neither one sustains plaintiffs’ reading of Rule 54(b). True, Lowery noted that the Title VII
retaliation and breach of contract causes of action there sought “to recover for the same
underlying injury.” 426 F.3d at 821. But the motivating force behind the conclusion that these
were not distinct claims was the broader point that they “arose out of the same aggregate of
operative facts,” specifically the retaliation. Id. At no point did Lowery suggest that causes of
action that seek to recover for distinct injuries cannot amount to the same claim when they arise
from similar facts.
Conversely, In re Fifth Third held that a breach of contract cause of action and a failure
to disclose cause of action under the Truth in Lending Act (TILA) were distinct claims under
Rule 54(b) because they rested on different operative facts. 925 F.3d at 273–74. In particular,
the breach of contract claim stemmed from Fifth Third allegedly charging plaintiffs a higher
interest rate than was provided for in a loan agreement, while the TILA claim related to
allegations that the bank failed to provide customers with accurate bank statements. Id. at 274.
To be sure, unlike in Lowery, the respective legal theories in In re Fifth Third sought to recover
damages stemming from separate injuries. Id. But as in Lowery, In re Fifth Third discussed
those injuries simply as a means to ascertain the facts underlying each cause of action. The
request for monetary damages was evidence that the underlying conduct amounted to breach of
contract; statutory damages, on the other hand, showed that separate conduct amounted to a
TILA disclosure failure. See id. (“While the breach-of-contract [count] focuses on the amount of
money that Fifth Third charged plaintiffs, the TILA [count] is based on different conduct: failure
to make required disclosures.”). Neither case, in short, holds that seeking remedies for different
injuries alone justifies deeming two causes of action as distinct claims under Rule 54(b). More
broadly, a separate-injury rule like the one plaintiffs advance risks Rule 54(b) swallowing the
final judgment rule. After all, it is commonplace for a single set of operative facts to sustain
multiple causes of action, each of which can be framed as remedying distinct injuries. See Wood
v. GCC Bend, LLC, 422 F.3d 873, 879–80 (9th Cir. 2005) (explaining that “it is typical for
several claims to be made, based on both state and federal law, and for several theories of
adverse treatment to be pursued” stemming “largely from the same set of facts”).

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Causes of action likewise may amount to the same claim even where the facts underlying
the respective causes of action are not perfectly aligned. Plaintiffs are correct that their wrongful
death cause of action seeks to recover for the harm suffered by Crawford’s family members due
to his death, while the survivorship cause of action is tied to Crawford’s pain and suffering, and
that the facts to prove each will differ. See Peters, 873 N.E.2d at 1261. But we do not require a
precise factual overlap to find that two causes of action arose out of the same aggregate of
operative facts, and thus are not distinct claims. Rather, we look to whether the “differences
sufficiently outweigh what they have in common.” Planned Parenthood Sw. Ohio Region v.
DeWine, 696 F.3d 490, 502 (6th Cir. 2012). Here, where the same alleged negligence on the part
of Wal-Mart “[gave] rise to [the] right[s] enforceable in the courts,” any differences in plaintiffs’
causes of action do not outweigh the similarities. McIntyre, 585 F.2d at 192.
B. Alternatively, plaintiffs emphasize the multi-party nature of their suit, noting that
Rule 54(b) certification is appropriate where a district court enters final judgment as to “one or
more, but fewer than all . . . parties.” Fed. R. Civ. P. 54(b). Plaintiffs believe they have satisfied
that provision because the district court dismissed Crawford’s father and sons entirely from the
case. See Soliday v. Miami County, 55 F.3d 1158, 1163 (6th Cir. 1995) (holding that there is
jurisdiction to review summary judgment granted in favor of two defendants “not involved in
any remaining claim” under Rule 54(b)). But that does not seem to be true. The remaining loss
of consortium causes of action were brought by Crawford’s father and two sons.
Plaintiffs counter that the loss of consortium causes of action “were necessarily dismissed
along with the wrongful death” count. To understand why, plaintiffs direct us to Ohio common
law, which, they say, instructs that a loss of consortium cause of action cannot seek death-related
damages. As a result, plaintiffs believe we must construe the loss of consortium causes of action
as requests for damages under the wrongful death count, meaning the consortium counts should
have been dismissed along with the wrongful death count. But two points suggest otherwise.
One, as pleaded, plaintiffs’ consortium counts sought to recover for permanent loss of
consortium, which seemingly could include damages incurred by plaintiffs during Crawford’s
life as well as in death. Two, even were we to read that cause of action as one for wrongful
death damages, the fact remains that the district court did not dismiss the loss of consortium

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counts and, relatedly, granted Rule 54(b) certification on the wrongful death count only. As a
result, the loss of consortium causes of action are beyond the scope of our review. Were there
any doubt on that score, plaintiffs’ motion seeking reconsideration of the summary judgment
decision challenged only the dismissal of the wrongful death count, acknowledging that the loss
of consortium causes of action were properly before the district court. It would be an odd turn of
events now to allow plaintiffs to argue that their loss of consortium counts functionally were
dismissed. See Bannister v. Knox Cnty. Bd. of Educ., 49 F.4th 1000, 1011 (6th Cir. 2022)
(explaining that a position is forfeited “when [a] party belatedly asserts it on appeal after having
failed to raise it in the district court”).
* * * * *
We dismiss this appeal for lack of jurisdiction.

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