As was noted in Interconnect Planning Corp. v. Feil, 774 F.2d 1132, 1135-1136 (Fed. Cir. 1985): [f]or collateral estoppel to arise the prior decision need not have been final in the sense of 28 U.S.C. §1291 but, in the words of the Restatement, the prior adjudication must have been 'sufficiently firm to be accorded conclusive effect'. Restatement (Second) of Judgments §13 (1982).

Restricting appellate review to “final decisions” within the meaning of 28 U.S.C. § 1291 prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy. In this case, the district court’s order was not a final order within the meaning of 28 U.S.C. § 1291 because part of the order remanded the case to the ALJ for determination of whether alcohol use affected Copeland’s functional capacity. The order was therefore a remand for determination of an issue that may have altered the Secretary’s decision.

Moreover, in light of the limited number of remaining issues to be tried, trial may very well be substantially shorter than the two-week trial calendar the Court has currently allotted. Thus, although Hotfile seeks to argue that the issue on which it seeks interlocutory appeal (involving the Sony defense) is of significant import to the industry and to the law of secondary liability more generally (claims, which as Plaintiffs demonstrate in Part II infra, are overstated and inaccurate), those Case 1:11-cv-20427-KMW Document 537 Entered on FLSD Docket 09/23/2013 Page 9 of 18 6 questions would be before the Eleventh Circuit very soon even if interlocutory appeal is denied and Hotfile is forced to raise them on a direct appeal from this Court’s final judgment pursuant to the usual procedure under 28 U.S.C. § 1291. Thus, even under Hotfile’s best-case scenario in which it prevails at the Eleventh Circuit on its legal theory about its Sony defense, there is little to gain in terms of judicial economy from allowing Hotfile to take a piecemeal appeal now rather than adhering to the usual appellate procedure.

35 34 Rule 23(c)(1) provides: As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits. 35 A district court's failure to determine prior to the entry of final judgment whether the case should proceed as a class action may deprive its judgment of the requisite finality for appealability under 28 U.S.C. § 1291 (and thereby deprive us of our jurisdiction over the appeal). Our research fails to disclose an Eleventh Circuit case, such as the one before us, in which the district court failed to rule on class certification. The Seventh Circuit, however, has faced the issue on several occasions.

II), 751 F.3d 150, 156 (3d Cir. 2014). However, pursuant to Fed. R. Civ. P. 54(b), a “a district court may convert an order adjudicating less than an entire action to the end that it becomes a ‘final’ decision over which a court of appeals may exercise jurisdiction under 28 U.S.C. § 1291.” Id.

Thus, Slayton is irrelevant to this case because it did not address what constitutes a “final decision with respect to arbitration” under the FAA. To the extent Slayton is relevant to the question of whether an order is a final order for purposes of appeal under 28 U.S.C. §1291, the decision does not assist Ms. Bynum. Unlike Slayton, in which the plaintiff’s decision not to amend his complaint automatically converts the order dismissing his claims to a final order on the merits of the claims, here, Ms. Bynum’s refusal to arbitrate her claims, has no similar effect.

The motion, however, must be denied as moot, since the Order was final in 2013. Case 1:10-cv-00483-RCL Document 60 Filed 06/15/15 Page 3 of 9 4 III. LEGAL ARGUMENT 28 U.S.C. § 1291 states that federal courts of appeal have jurisdiction over appeals from final decisions of the district courts. Fed. R. App. P. 4(a) provides that an appeal from a decision of a district court in a civil case may only be taken by filing a notice of appeal “within 30 days after the judgment or order appealed from is entered.”

Plaintiffs and Intervenors moved for a stay of the appeal and limited remand to enable Plaintiffs and Intervenors to move this Court for certification under § 1292(b), but Israel opposed that motion. The Second Circuit later dismissed those appeals on jurisdictional grounds, finding that “a final order has not been issued by the district court as contemplated by 28 U.S.C. § 1291.” (DE 19 at 2).

At the Potsdam Conference in July of 1945, President Truman formally adopted a policy of “external restitution,” under which the “looted art was returned to the countries of origin – not to the individual owners.” Von Saher, 592 F. 3d at 958 (citing American Commission for the Protection and Salvage of Artistic and Historic Monuments (Footnote continued on next page) Case 1:10-cv-01261-ESH Document 46 Filed 10/28/11 Page 21 of 24 16 Independent of Hungary’s appeal of this Court’s jurisdictional finding under the FSIA, brought as a matter of right under 28 U.S.C. § 1291, Hungary has viable grounds for seeking certification of the five issues put forth in its Motion for Certification. Absent Hungary’s Motion for Certification, Plaintiffs would have no conceivable basis for appealing the Court’s comity finding at this stage.

Dismiss at 11. 7 While the Supreme Court, under 28 U.S.C. § 2072(c), may prescribe rules that define when a ruling of a district court is final for the purposes of appeal under 28 U.S.C. § 1291, Enron’s interpretation of Rule 54, which frustrates any pursuit of finality, would arguably cause the Rule to exceed this statutory grant of authority. Case 1:07-cv-06597-AKH Document 22 Filed 10/31/2007 Page 12 of 17 9 But Kahn is readily distinguishable from this case.