Berke v. Bloch

242 F.3d 131, 49 Fed. R. Serv. 3d 194, 2001 U.S. App. LEXIS 2859, 2001 WL 196986
Court of Appeals for the Third Circuit·Decided February 27, 2001·No. No. 00-2078·Published·Cited by 26 cases

Opinion

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Before us is Appellee Buckley Broadcasting’s motion to dismiss this appeal for lack of jurisdiction. The Appellants have filed a memorandum in opposition. Buckley Broadcasting argues that we lack jurisdiction because the Appellants did not file their notice of appeal within thirty (30) days of the date the District Court’s judgment became final, as required by F.R.A.P. 4(2)(1)(A). The Appellants maintain that such finality was not achieved until June 8, 2000, and that their notice of appeal — filed on June 21, 2000 — was therefore timely.

I. Background

On December 19, 1999, two hundred and eighty-eight (288) plaintiffs filed a complaint alleging that several named defendants fraudulently solicited their investment in units of the Greater Columbia [134] Basin Limited Liability Company. The purpose of this solicitation was to raise money for a wireless cable television system. Appellants (plaintiffs below) claimed that these investments were worthless and that the revenue generated was fraudulently diverted and has never been located or returned to them.

Buckley Broadcasting was one of the named defendants. The only federal claim against Buckley Broadcasting was that it" sold an unregistered security, as defined by section 12(1) of the Securities Exchange Act of 1933. On December 14, 1999, the District Court granted Buckley Broadcasting’s motion for summary judgment. The District Court found no genuine issue as to whether Buckley Broadcasting was a “seller” of securities within the meaning of the statute. The District Court declined to exercise supplemental jurisdiction with regard to the remaining state law claims and dismissed them.

On January 13, 2000, the Appellants filed a notice of appeal contesting the December 14, 1999 order. Because their cause of action remained active as to several other defendants, the Appellants later voluntarily withdrew the appeal, indicating that they reserved the right “to refile said appeal at such time as the Order of December 14, 1999 becomes final within the meaning of 28 U.S.C.§ 1291 or is certified as such by Judge Politan.”1

On March 1, 2000, the District Court filed an order dismissing the action with respect to the remaining defendants, expressing its belief that the matter had been settled with the two remaining defendants, William Gerónimo and Raymond Fillweber. The District Court dismissed the action “without costs and without prejudice to the right, upon good cause shown, within 60 days, to reopen the action if the settlement is not consummated.” The order further instructed that “this case is now CLOSED.” (emphasis in the original). That is to say, the Appellants had until Monday, May 1, 2000, to re-open their case if the settlement fell through.

The docket indicates that the Appellants undertook no action within the prescribed sixty (60) day period following entry of the District Court’s order. It was not until May 4, 2000, that the Appellants returned to the District Court and requested the entry of a “stipulation of dismissal with prejudice” as to Fillweber. On June 8, 2000, the Appellants requested a final stipulation of dismissal from the District Court for Gerónimo. The Appellants filed a notice of appeal on June 21, 2000.

II. Jurisdiction and Final, Appealable Orders

For purposes of appellate jurisdiction, we must determine first whether there was a final order entered in this case and, if so, when it became appealable. Federal law provides that we shall have jurisdiction over appeals from “all final decisions of the District Courts of the United States.” 28 U.S.C. § 1291. A decision is considered final for purposes of § 1291 when the District Court’s decision “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 710-11, 116 S.Ct. 1712, 1718, 135 L.Ed.2d 1 (1996); see also Van Cauwenberghe v. Biard, 486 U.S. 517, 521, 108 S.Ct. 1945, 1949, 100 L.Ed.2d 517 (1988); Aluminum Co. of America v. Beazer East, Inc., 124 F.3d 551, 557 (3d Cir.1997); Christy v. Horn, 115 F.3d 201, [135]*135203 (3d Cir.1997). Conversely, if the order specifically contemplates further activity by the District Court, it is not considered final. If the order contemplates only ministerial actions by the District Court however, finality may exist. See Paiewonsky Associates, Inc. v. Sharp Properties, Inc. 998 F.2d 145, 150 (3d Cir.1990).

An order dismissing a case outright is, of course, final and appealable. Trent v. Dial Medical of Florida, Inc., 33 F.3d 217, 220 (3d Cir.1994) (citing Ingersoll-Rand Financial Corp. v. Callison, 844 F.2d 133, 134-35 & n. 1 (3d Cir.1988)). We have even indicated that dismissals “without prejudice” may be final and appealable if the District Court believes its ruling ends the litigation. See id. (citing United States v. Wallace & Tiernan Co., 336 U.S. 793, 794 n. 1, 69 S.Ct. 824, 825 n. 1, 93 L.Ed. 1042 (1949)). We have cautioned, however, that such dismissals could not be appealable until the party seeking relief renounces any intention to reinstate litigation. Id.; see also Tiernan v. Devoe, 923 F.2d 1024, 1031 (3d Cir.1991).

III. The March 1, 2000 Order

Buckley Broadcasting initially argues that the March 1, 2000, order required no further action by the District Court and was therefore final and appeal-able on that date. Buckley Broadcasting points out that the March 1, 2000 order dismissed the case, leaving it open only so that the District Court may, upon a showing of good cause, retain jurisdiction if a settlement was not consummated. Additionally, they suggest that the March 1st order did not reserve for the District Court the jurisdiction to re-examine the case on the merits, or the ability to enter any further substantive orders; the Court expressly closed the case.

Free access — add to your briefcase to read the full text and ask questions with AI

Berke v. Bloch, 242 F.3d 131, 49 Fed. R. Serv. 3d 194, 2001 U.S. App. LEXIS 2859, 2001 WL 196986 (3d Cir. 2001).

242 F.3d 131 (Berke v. Bloch) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

EDWARDS v. RICE
E.D. Pennsylvania, 2020
Ortiz v. People
66 V.I. 124 (Superior Court of The Virgin Islands, 2017)
Alfonso Longo v. First National Mortgage Source
523 F. App'x 875 (Third Circuit, 2013)
Weske v. Samsung Electronics, America, Inc.
934 F. Supp. 2d 698 (D. New Jersey, 2013)
Beachside Associates, LLC v. Fishman
53 V.I. 700 (Supreme Court of The Virgin Islands, 2010)
Bryant v. People
53 V.I. 395 (Supreme Court of The Virgin Islands, 2010)
H&H Avionics, Inc. v. Virgin Islands Port Authority
52 V.I. 458 (Supreme Court of The Virgin Islands, 2009)
Estate of George v. George
50 V.I. 268 (Supreme Court of The Virgin Islands, 2008)
Frederico v. Home Depot
507 F.3d 188 (Third Circuit, 2007)
Bernback v. Greco
Third Circuit, 2007
Michael W. Canady v. R. James Nicholson
20 Vet. App. 393 (Veterans Claims, 2006)
Morton International, Inc. v. Fmc Corporation
460 F.3d 470 (Third Circuit, 2006)
Brennan v. Kulick
407 F.3d 603 (Third Circuit, 2005)
Wrs, Inc. v. Plaza Entertainment, Inc.
402 F.3d 424 (Third Circuit, 2005)
Soto v. Estelle
123 F. App'x 157 (Fifth Circuit, 2005)
Penn West Associates, Inc. v. Cohen
371 F.3d 118 (Third Circuit, 2004)
Berke v. Buckley Broadcasting Corp.
821 A.2d 118 (New Jersey Superior Court App Division, 2003)
Berke v. Bloch
242 F.3d 131 (Third Circuit, 2001)