Halford v. Deer Valley Home Builders, Inc.

Full title: MELISSA HALFORD, Plaintiff, v. DEER VALLEY HOME BUILDERS, INC., et al.…

Court: United States District Court, M.D. Alabama, Northern Division

Date published: Apr 25, 2007

CIV. ACT. NO. 2:07cv180-ID (WO) (M.D. Ala. Apr. 25, 2007)

Opinion

CIV. ACT. NO. 2:07cv180-ID (WO).

April 25, 2007

MEMORANDUM OPINION AND ORDER

IRA DeMENT, District Judge

I. INTRODUCTION

Before the court are the following motions: (1) motions to compel arbitration and motions to stay, filed by Defendants Deer Valley Home Builders, Inc. ("Deer Valley") and Timberline Homes, Inc. ("Timberline Homes") (Doc. Nos. 4, 6); (2) a motion to dismiss or stay and to compel binding arbitration, filed by Gary Harris d/b/a 3-D Mobile Home Movers ("Harris") (Doc. No. 1); and (3) a motion to remand this removed action back to the Circuit Court of Butler County, Alabama, filed by Plaintiff Melissa Halford ("Halford"). (Doc. No. 12.)

Invoking the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1- 16, Deer Valley, Timberline Homes and Harris contend that the claims brought against them, all of which arise under federal law, are subject to arbitration by virtue of a binding arbitration agreement signed by Halford. Halford consents to the motions to compel arbitration filed by these three Defendants. (Doc. No. 14.) Deer Valley and Timberline Homes move the court to stay this litigation pending the conclusion of the arbitration proceedings. Harris also moves for a stay, but only as an alternative to a dismissal.

Halford also has sued a fourth defendant, Evergreen Concrete Co., Inc. ("Evergreen Concrete"). Only state-law claims are pending against it. Neither Halford nor Evergreen Concrete has asserted that the arbitration agreement applies to these state-law claims. Halford, however, moves the court to remand the state-law claims against Evergreen Concrete back to the Circuit Court of Butler County, Alabama, pursuant to 28 U.S.C. § 1367(c)(2), as well as the arbitrable federal-law claims asserted against Deer Valley, Timberline Homes and Harris. Evergreen Concrete has no objection to a remand of the state-law claims to state court, (Doc. No. 15), and neither Deer Valley, Timberline Homes nor Harris has interposed any objection thereto. (Doc. Nos. 14, 16-17.) After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that the motions to arbitrate are due to be granted and that the arbitrable claims are due to be dismissed without prejudice, that the motions to stay are due to be denied as moot, and that the motion to remand is due to be granted in part and denied in part.

II. JURISDICTION AND VENUE

The court properly exercises subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1331 (federal question jurisdiction), 28 U.S.C. § 1441(a) (removal jurisdiction), and 28 U.S.C. § 1367 (supplemental jurisdiction). It is the existence of a federal statutory cause of action under the Magnuson-Moss Warranty — Federal Trade Commission Improvement Act, 15 U.S.C. §§ 2301- 2312 ("Magnuson-Moss Act"), which confers federal-question jurisdiction upon the court.¹ The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations of both.

1 The court notes that, while Defendants have invoked the FAA, it is well established that the FAA does not provide an independent basis for federal subject matter jurisdiction. See Southland Corp. v. Keating, 465 U.S. 1, 15 n. 9 (1984) ("While the Federal Arbitration Act creates federal substantive law requiring the parties to honor arbitration agreements, it does not create any independent federal-question jurisdiction under 28 U.S.C. § 1331 or otherwise."); Moses H. Cone Mem. Hosp. v. Mercury Constr. Co., 460 U.S. 1, 25 n. 32 (1983) ("The Arbitration Act is something of an anomaly in the field of federal-court jurisdiction. It creates a body of federal substantive law establishing and regulating the duty to honor an agreement to arbitrate, yet it does not create any independent federal-question jurisdiction.").

III. BACKGROUND

Halford filed a three-page complaint in the Circuit Court of Butler County, Alabama, against Deer Valley, Timberline Homes, Harris and Evergreen Concrete, alleging claims under the Magnuson-Moss Act, and a number of state-law claims, all arising from the sale of a manufactured home to Halford in October 2001. More specifically, Halford contends that she purchased a manufactured home from Timberline Homes in Greenville, Alabama. The home was manufactured by Deer Valley. (Compl. ¶ 7.) Timberline Homes "made arrangement[s]" for Harris and Evergreen Concrete to move and install the manufactured home. (Id.) Halford complains, generally, that the manufactured home "was defective in [its] design, manufacture, distribution, transportation, delivery, sale and installation and [was] not as represented and warranted to [Halford]." (Id. ¶ 8.)

The complaint contains four counts, alleging negligence (Count One), breach of express and implied warranties (Count Two), violations of the Magnuson-Moss Act (Count Three), and misrepresentation (Count Four). Although in the complaint each count is asserted in the plural against all "Defendants," Halford has clarified that she brings the state-law claims in Counts One, Two and Four only against Evergreen Concrete and that she brings the federal-law claims in Count Three against Deer Valley, Timberline Homes and Harris. (See Doc. No. 12 ¶¶ 2-3.) Halford requests compensatory and punitive damages, replacement of her manufactured home, and attorney's fees and costs. (Compl. at 3.)

The four named Defendants timely and properly removed the case to the United States District Court for the Middle District of Alabama pursuant to 28 U.S.C. § 1441(a), the statute which permits a defendant to remove a lawsuit which falls within the original jurisdiction of the federal district courts, on the basis that the complaint includes claims made pursuant to the Magnuson-Moss Act, see 28 U.S.C. § 1331(a). Also, in their removal papers, Defendants reserved their rights to demand arbitration. (Defs. Removal Pet. at 1 (Doc. No. 1).)

IV. DISCUSSION A. Motions to Compel Arbitration

Invoking the FAA, Deer Valley, Timberline Homes and Harris move to compel arbitration of all claims asserted against them, pursuant to the agreement for binding arbitration Halford signed in connection with the purchase of her manufactured home. (Agreement for Binding Arbitration, attached as Ex. B to Doc. No. 4.) The court finds that the FAA applies in this case, that the transaction which is the subject of the arbitration provision involved interstate commerce, that the written arbitration agreement is valid and enforceable, and that the federal-law claims asserted against Deer Valley, Timberline Homes and Harris are subject to arbitration. See 9 U.S.C. §§ 2, 4. The authority and evidence upon which the foregoing Defendants rely support these findings (see Doc. Nos. 4, 6), and Halford has not argued to the contrary. Indeed, Halford readily concedes that all of her federal-law claims against these three Defendants are subject to the binding arbitration agreement which covers these disputes. (Doc. No. 11.) Accordingly, the court finds that the motions to compel arbitration filed by Deer Valley, Timberline Homes and Harris are due to be granted on the merits and as unopposed.

B. Motions to Dismiss or Stay

In conjunction with his motion to compel arbitration, Harris moves the court to dismiss the arbitrable claims or, alternatively, to stay this litigation pending arbitration. Deer Valley and Timberline Homes join Harris to the extent that they move for a stay, pursuant to 9 U.S.C. § 3. Halford does not oppose a stay of the arbitrable claims.² For the reasons to follow, the court agrees with Harris' primary argument for dismissal.

2 The court notes that, although Halford does not oppose a stay, she simultaneously asks the court to remand the arbitrable claims to state court. (Doc. No. 12 ¶ 7.) The court addresses the motion to remand in the next subsection, but notes that Timberline Homes has misconstrued the full effect of Halford's motion to remand when it states that Halford's motion to remand "is limited to" her state-law claims against Evergreen Concrete. (Doc. No. 14 at 1.)

Stays under the FAA are governed by 9 U.S.C. § 3, which provides:

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

9 U.S.C. § 3. Although 9 U.S.C. § 3 speaks in terms of requiring a stay in the circumstances noted, there is authority from district courts in this circuit and other circuit courts of appeals which clearly supports a dismissal of an action when, due to an order compelling arbitration, there are no substantive claims left pending before the district court. In this circuit, another judge of this court recognized that, "[w]here all of the issues raised in a complaint must be submitted to arbitration, courts have held that a dismissal of the action is appropriate, since retaining jurisdiction and staying the action does not serve judicial economy." Clayton v. Woodmen of World Life Ins. Soc., 981 F. Supp. 1447, 1451 (M.D. Ala. 1997) (Albritton, J.) (citations omitted). Similarly, the district court in Dale v. Comcast Corp., found that 9 U.S.C. § 3 does not prohibit a district court from dismissing an action "where all of the issues raised in the action must be submitted to arbitration." 453 F. Supp.2d 1367, 1378 (N.D. Ga. 2006) (citing Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4^th Cir. 2001)); see also Gilchrist v. Citifinancial Servs., Inc., No. 6:06cv1727-Orl-31KRS, 2007 WL 177821, *4 (M.D. Fla. Jan. 19, 2007) (same).

In Gilchrist, the court observed that, although the Eleventh Circuit had not directly addressed the propriety of dismissal in lieu of a stay under 9 U.S.C. § 3, it had "frequently affirmed where the district court compelled arbitration and dismissed the underlying case." 2007 WL 177821, *4 (collecting cases). The court, therefore, concluded that, from aught that appears, "the Eleventh Circuit would permit the dismissal of an action in which all of the claims are subject to arbitration." Id. Also, as recognized in Dale, supra, the Fifth Circuit expressly has concluded that 9 U.S.C. § 3 "`was not intended to limit dismissal of a case in the proper circumstances.'" 453 F. Supp.2d at 1378 (quoting Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5^th Cir. 1992)). As ascertained by the Alford court, "[t]he weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration." 975 F.2d at 1161 (emphasis in original); see also Fedmet Corp. v. M/V BUYALYK, 194 F.3d 674, 678 (5^th Cir. 1999) ("If all of the issues raised before the district court are arbitrable, dismissal of the case is not inappropriate."). InDale, therefore, the court opined that, where all of the claims in the lawsuit are subject to arbitration, a proper circumstance to dismiss arises because "it would serve no purpose for the court to retain jurisdiction and stay the action." 453 F. Supp.2d at 1378. As support for its finding, the Dale court cited parenthetically the opinion ofSea-Land Services, Inc. v. Sea-Land of Puerto Rico, Inc. ("Sea-Land"), 636 F. Supp. 750 (D.P.R. 1986), for the proposition that, under the FAA, "any post-arbitration remedies sought by [the] parties would be limited to a judicial review of the arbitrator's award rather than adjudication of the merits of the controversy."³ Id. (citing Sea-Land, 636 F. Supp. at 757); see also Montes v. Shearson Lehman Bros., Inc., 128 F.3d 1456, 1458 (11^th Cir. 1997) (observing that "[j]udicial review of arbitration awards under the FAA is very limited").

3 The court notes that the Fifth Circuit in Alford also citedSea-Land with approval. See Alford, 975 F.2d at 1164.

The Fifth Circuit's holding in Alford, above, does not stand alone. At least four other circuits are in accord. See Choice Hotels Int'l, Inc., 252 F.3d at 709-10 ("Notwithstanding the terms of [9 U.S.C.] § 3, . . . dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable."); Green v. Ameritech Corp., 200 F.3d 967, 973 (6^th Cir. 2000) ("The weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration."); Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 156 n. 21 (1^st Cir. 1998) ("[A] court may dismiss, rather than stay, a case when all of the issues before the court are arbitrable."); Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 638 (9^th Cir. 1988) (holding that 9 U.S.C. § 3 does not preclude the court's authority to enter a dismissal); but see Lloyd v. Hovensa, LLC., 369 F.3d 263, 269 (3^rd Cir. 2004) (holding that "the plain language of [9 U.S.C.] § 3 affords a district court no discretion to dismiss a case where one of the parties applies for a stay pending arbitration").

Here, as previously found by the court and agreed to by Halford, all of the claims Halford brings against Deer Valley, Timberline Homes and Harris are subject to arbitration. The court finds that the posture of this case parallels that in Gilchrist, supra, Dale, supra, and other cases cited above, notwithstanding that in this lawsuit Halford brings additional claims against Evergreen Concrete which are not subject to arbitration. Namely, as discussed in the next section, the court finds that the state-law claims against Evergreen Concrete are appropriate for remand back to the Circuit Court of Butler County. The court finds that dismissal of the arbitrable claims is no less proper in this case than in Gilchrist and Dale because, at the end of the day, no claims remain which are subject to a merits determination by this court. Cf. Bercovitch, 133 F.3d at 156 n. 21 ("Because we find that the two federal claims in this case-those brought under the ADA and the Rehabilitation Act-are arbitrable, there is only pendent jurisdiction over the one state-law claim. The district court therefore has discretion to dismiss the entire action."). Accordingly, the court finds that Harris' motion to dismiss is due to be granted. The dismissal shall be without prejudice because not all Defendants have requested dismissal. See Jureczki v. Banc One Texas, N.A., 252 F. Supp.2d 368, 380 (S.D. Tex.), aff'd without op., 75 Fed. Appx. 272 (5^th Cir. 2003). Consequently, the court finds that Harris' alternate motion for a stay, as well as Deer Valley's and Timberline Homes' motions to stay, are due to be denied as moot.

C. Motion to Remand

Contemporaneously with the filing of her response consenting to arbitration of her claims against three of the Defendants, Halford filed a motion to remand this lawsuit to the Circuit Court of Butler County, Alabama. As grounds for her motion, Halford points out that her claims against Evergreen Concrete, a non-diverse defendant, implicate only state law and relate to the alleged improper installation of the concrete footers underneath her manufactured home. Because there is no diversity between Halford and Evergreen Concrete, Halford contends that the court has discretionary authority to remand this case to state court pursuant to 28 U.S.C. § 1367(c)(2), which provides that a district court "may decline to exercise supplemental jurisdiction over a claim . . . if . . . the claim substantially predominates over the claim or claims over which the district court has original jurisdiction." Halford argues that her consent to arbitrate the federal-law claims, which provided the basis for removal in the first place, minimizes the import of these claims in this litigation. As such, Halford contends that the remaining state-law claims to be litigated against Evergreen Concrete substantially predominate over the arbitrable federal-law claims. (Doc. No. 12 at 2-3.) As an alternative basis for remand, Halford cites 28 U.S.C. § 1367(c)(3), but she implicitly concedes that a court order directing the parties to arbitrate the federal-law claims is not tantamount to a dismissal of those claims. (See id. at 4); cf. Germania Dairy Automation v. Rieberjo B.V., No. 01-C-365-C, 2001 WL 34373165 (W.D. Wis. Sept. 24, 2001) (rejecting plaintiffs' argument that, once the federal-law claims were submitted to arbitration, "there is no independent basis on which this court can exercise subject matter jurisdiction" and finding that "[t]he federal question does not disappear once the motion to compel arbitration is granted").

Evergreen Concrete did not specifically address Halford's arguments, but states that it does not object to Halford's motion to remand the state-law claims against it to the Circuit Court of Butler County, Alabama. (Doc. No. 15.) For the reasons to follow, the court finds that a remand of Halford's state-law claims is appropriate under 28 U.S.C. § 1367(c)(3).⁴

4 For clarity, the court notes that 28 U.S.C. §§ 1441(c) and 1447(c) are not at issue. First, the parties agree that 28 U.S.C. § 1441(c) does not govern the determination of remand because the supplemental state-law claims derive from the same nucleus of operative fact as the federal-law claims. Second, 28 U.S.C. § 1447(c) does not apply because federal question jurisdiction existed on the date of removal. See Poore v. American-Amicable Life Ins. Co. of Texas, 218 F.3d 1287, 1290-91 (11^th Cir. 2000) (a remand based upon 28 U.S.C. § 1447(c) is proper only when it is later determined that jurisdiction was lacking at the time of removal).

This case stands in a different posture than when Halford filed her motion to remand. Namely, as discussed in the preceding subsection, the court now has determined that dismissal of the arbitrable federal-law claims is appropriate, leaving only the state-law claims present. For the reasons to follow, given the impending dismissal of the federal-law claims, the procedural posture of this case renders 28 U.S.C. § 1367(c)(3) applicable.

In any civil action in which a district court has original jurisdiction under 28 U.S.C. § 1331, it also shall have "supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367(a). Pursuant to 28 U.S.C. § 1367(c)(3), however, the court has discretion to decline jurisdiction over a claim supported only by supplemental jurisdiction if "the district court has dismissed all claims over which it has original jurisdiction[.]" 28 U.S.C. § 1367(c)(3). Additionally, although 28 U.S.C. § 1367(d) speaks in terms of dismissal of supplemental state-law claims, it is well established that the district court is permitted to remand those claims back to state court when the federal claim which supported removal is dismissed. See City of Chicago v. Int'l College of Surgeons, 522 U.S. 156, 165-66 (1997) (holding that supplemental jurisdiction statute, 28 U.S.C. § 1367, applies to removal actions); Engelhardt v. Paul Revere Life Ins. Co., 139 F.3d 1346, 1350 (11^th Cir. 1998) (observing district court's discretionary authority to remand state-law claims in removed cases pursuant to 28 U.S.C. § 1367(c)). As explained by the Supreme Court, in a properly-removed case, "when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain," generally the interests of "judicial economy, convenience, fairness, and comity" will weigh in favor of a remand of the state-law claims to state court. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350-51, 357 (1988); see also United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("[n]eedless decision of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law[;] [c]ertainly, if the federal claims are dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims should be dismissed as well").

Here, the proceedings are in their infancy. A Uniform Scheduling Order has not been entered; therefore, no court-imposed deadlines, including pretrial hearing and trial dates or discovery time lines, have been established. Given the procedural posture of this case, the court finds that it would be more advantageous and preferable for the courts of the State of Alabama to interpret and decide issues of Alabama law, rather than having this court decide. The court can envision no reason, and none has been offered, for the court to retain supplemental jurisdiction over Halford's state-law claims against Evergreen Concrete. Overall, the court finds that judicial economy, convenience, fairness and comity weigh in favor of the court relinquishing jurisdiction over the state-law claims pursuant to 28 U.S.C. § 1367(c)(3).⁵

5 The court notes that, in light of its findings herein, the court need not address Halford's argument made pursuant to 28 U.S.C. § 1367(c)(2).

As a final matter, the court observes that Halford suggests that the court not only remand the state-law claims against Evergreen Concrete, but also the arbitrable federal-law claims against Deer Valley, Timberline Homes and Harris, pursuant to 28 U.S.C. § 1367(c). (Doc. No. 12 ¶ 7.) Halford's argument, however, is foreclosed by a prior decision of the Eleventh Circuit. See In re City of Mobile, 75 F.3d 605 (11^th Cir. 1996). In City of Mobile, the Eleventh Circuit held that "[s]ection 1367(c) cannot be fairly read as bestowing on district courts the discretion to remand to a state court a case that includes a properly removed federal claim." Id. at 607. Although a district court has authority to decline jurisdiction over a supplemental state-law claim on any of the grounds set out in 28 U.S.C. § 1367(c)(1)-(4), a district court "must retain jurisdiction over the properly removed federal claim." Id. at 608. Here, there is no dispute that the federal-law claims brought pursuant to the Magnuson-Moss Act were properly removed.

In further support of her remand argument, Halford points out that the Circuit Court of Butler County has jurisdiction to conduct any post-arbitration proceedings. (Doc. No. 12 ¶ 7) (citing Agreement for Binding Arbitration which provides that "[j]udgment on any award rendered by the arbitrator may be entered in and enforced by any Court of competent jurisdiction").) Halford has not provided any authority for the proposition that the court has discretion to remand a case based on the existence of concurrent jurisdiction with the state courts. The absence of supporting authority is not surprising, because the case law is directly to the contrary. See Baldwin v. Sears, Roebuck Co., 667 F.2d 458, 460 (5^th Cir. 1982) (absent "an express declaration of Congress to the contrary, all types of civil actions, in which there is concurrent original jurisdiction in both federal and state courts, are removable."); Hooper v. Albany Int'l Corp., 149 F. Supp.2d 1315, 1324 (M.D. Ala. 2001) ("As long as th[e] federal court itself possesses jurisdiction over [p]laintiff's suit, the fact that the state court shares concurrent jurisdiction over the action provides no support for [p]laintiff's motion to remand."), aff'd without op., 88 Fed. Appx. 384 (11^th Cir. 2003). The court, thus, finds that there is no basis to remand the arbitrable federal-law claims alongside the state-law claims. Accordingly, the court finds that Halford's motion to remand is due to be granted in part and denied in part.

VI. ORDER

For the reasons asserted herein, it is CONSIDERED and ORDERED as follows:

(1) the motions to compel arbitration, filed by Defendants Deer Valley Home Builders, Inc. ("Deer Valley"), Timberline Homes, Inc. ("Timberline Homes") and Gary Harris d/b/a 3-D Mobile Home Movers ("Harris") (Doc. Nos. 1, 4, 6), be and the same are hereby GRANTED and Plaintiff Melissa Halford ("Halford") is hereby DIRECTED to proceed to arbitration in accordance with the terms of the Agreement for Binding Arbitration;

(2) the motion to dismiss, filed by Harris (Doc. No. 1), be and the same is hereby GRANTED and all claims which are subject to arbitration, as set out herein, are hereby DISMISSED without prejudice;

(3) the motions to stay, filed by Deer Valley and Timberline Homes (Doc. Nos. 4, 6), be and the same are hereby DENIED as moot;

(4) Halford's motion to remand the state-law claims asserted against Evergreen Concrete Co., Inc., (Doc. No. 12) be and the same is hereby GRANTED and said claims are hereby remanded to the Circuit Court of Butler County, Alabama, pursuant to 28 U.S.C. § 1367(c)(3), but said motion is otherwise DENIED; and

(5) there being no remaining triable issues, the clerk is DIRECTED to close this case.

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CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 486 U.S. 196 201 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. 890 F.2d 371 376 Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4

Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1 983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. (c). (b) a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. (b). , , (11th Cir. 1984). A judgment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. , , , , , (1988); , , (11th Cir. 1998). (c) Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted. (d) : The certification specified in (b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable. (e) Limited exceptions are discussed in cases including, but not limited to: , , , , , (1949); , , (11th Cir. 1989); , , , , , (1964). : The timely filing of a notice of appeal is mandatory and jurisdictional. , , (11th Cir. 2001). In civil cases, Fed.R.App.P. (a) and (c) set the following time limits: (a) A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. Special filing provisions for inmates are discussed below. (b) "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later." (c) If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion. (d) Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension. (e) If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid. Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. Fed.R.App.P. (c). A notice of appeal must be signed by the appellant. A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. (a)(4).