David Saulsberry v. Britney Elder

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 26, 2023
• Docket: 23-11067
• Status: Unpublished

Opinion

USCA11 Case: 23-11067 Document: 20-1 Date Filed: 06/26/2023 Page: 1 of 3

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

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No. 23-11067 Non-Argument Calendar ____________________

DAVID SAULSBERRY, Plaintiff-Appellant, versus BRITNEY ELDER, a.k.a. FTN Bae,

Defendant- Appellee.

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:21-cv-62362-RS USCA11 Case: 23-11067 Document: 20-1 Date Filed: 06/26/2023 Page: 2 of 3

2 Opinion of the Court 23-11067

Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges. PER CURIAM: After reviewing the parties’ responses to the jurisdictional questions, this appeal is DISMISSED for lack of jurisdiction. David Saulsberry appeals from the district court’s March 6, 2023 order va- cating the final judgment and granting a new trial. However, we lack jurisdiction over the appeal because the order is non-final and not subject to immediate review. See 28 U.S.C. § 1291; World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir. 2009) (explaining that “[a] final order is one that ends the litigation on the merits and leaves nothing for the court to do but execute its judgment” (quo- tation marks omitted)); CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325, 1327 (11th Cir. 2000) (same). The district court’s order granting a new trial makes clear that the litigation has not ended on the merits and is therefore not final. Geithner, 568 F.3d at 1348. Additionally, an order granting a new trial is an interlocutory order and generally appealable only after the verdict in the new trial, unless coupled with entry of judg- ment as a matter of law. See Deas v. PACCAR, Inc., 775 F.2d 1498, 1503 (11th Cir. 1985) (providing that the grant of a new trial is an interlocutory order subject to appellate review only if coupled with a grant of a motion for judgment notwithstanding the verdict); see also Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980) (explain- ing that the grant of a new trial is generally only appealable after USCA11 Case: 23-11067 Document: 20-1 Date Filed: 06/26/2023 Page: 3 of 3

23-11067 Opinion of the Court 3

the verdict in the new trial). Finally, the order is not appealable under the collateral order doctrine, as it is capable of review after an appeal from a subsequent final judgment. See Plaintiff A v. Schair, 744 F.3d 1247, 1252-53 (11th Cir. 2014) (setting out the require- ments for immediate appeal under the collateral order doctrine); see also Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31 (1985) (stating that the possibility of additional litigation expense is not alone sufficient to warrant review). Accordingly, we lack jurisdic- tion over this appeal.