Berke v. Bloch, MCFADDEN-BLANK
| Decision Date | 22 January 2001 |
| Docket Number | MCFADDEN-BLANK,SAINT-PRIX,MOONEY-GRIFFIN,No. 00-2078,00-2078 |
| Citation | 242 F.3d 131 |
| Parties | (3rd Cir. 2001) LYNNE BERKE; DAVID ABDINOOR; LEONARD ACCARDO; JEFF ADAMS; ARNOLD ADICOFF, M.D.; MARY ELLEN ANDERSON; KERMETH G. ANDERSON; PABLO ARIAS; PAUL ARIAS; KURT ARNST; OSCAR ASCURRA; STEWARD AUSTIN; ROBERT BALBACH, JR.; PHILIP BANKS, JR.; PASQUALE BARISCIANO; LYNDA BATTLE; ARTHUR BEEBE; MR. AND MRS. DAVID BEVERLY; JOSEPH BIRES; JOHN BOHMKE; RANDOLF BOOKER; CARL BOULAY; SCOTT BOYER; RICHARD BRADLEY; ANNA BRODYCZ; MELVIN BURKHARDT; ROSEMARY CAMPERLENGO; JOSEPH CARDELLA; JOHN CAREY; KEN CARPENTER; SAMUEL CASTRO; FRANK CHAN; YOUNG CHANG; VICTOR CHEUK; E. NORMAN CHOINIERE; EUGENE CHRISKE; RAYMOND CLARK; CRAIG CLERF; MRS. RAYMOND CODY; DONALD COLEMAN; EDUARDO CONSOLE; WILLIAM COOTE; SHIRLEY CORBETT; DAVID CORNELL; AIDA CORTES; ELIZABETH CRAIG; DIANA DAPONTE; ANGELA DAVIE; LOUIS DEBLASIO; LOUIS DEMARCO; ANTHONY DIBATTISTA; CHARLES DIGRIGOLI; JAMES DOW; DANNY K. & DOROTHY M. DUNBAR; JANET DUNN; DONALD DYER; EASTERN ANALYTICAL SERVICES, INC., C/O PAUL STASCAVAGE; JAMES EDWARDS; DIANE EVANS; HARLOW F ARMER, III; JOSEPH FAVALE; HAROLD FERIOLI; F.L. FICKS; ALICE FIRGAU; HELEN FREEMONDE; PETER FRIEL; STUART FRIES; ELIZABETH FUSS; FLOYD GALLEGOS, SR.; IRA GELBER; KATHLEEN GIACOMO; EDWARD GILMORE; LAWRENCE GIUSTINIANI; DAVID GLICKMAN; KENNETH GLOYESKE; THEODORE GOLDMAN; DOYLE GROSS; HENRY GROSSMAN; GUARDIAN INVESTMENT CLUB, C/O DENNIS MCCULLOUGH; JABIR GULAMHUSSEIN; MARLENE HALLMAN; DENNIS HANCOCK; TYSON HARPER; JOHN HARRISON; MARTIN HAYES; EDWARD HEIMRICH; VICTOR HIMEL; BRYAN HODGKINS; BRIAN HOFF; CHARLES HORVATH; HANS HUNZIKER; GLORIANNE JACKSON; RICHARD JEFFERSON; KENNETH JENKINS; PHILLIP JENSEN; CLARE JOHNSON; ERIC JOHNSON; ROSS JOHNSON; WILFRED JOHNSON; WILLIAM JONES; HENRY KARPIK; MARK KESSLER; FRAZIN KHIABANI; DANIEL KILFOYLE; JOSEPH KOLODZEJ, JR.; JOSEPH KILIDZEJ, SR.; CHESTER KOZLOWSKI; JOAN KUJAWSKI; FRED LACROIX; ARRON LEHMANN; ROBERT LESINSKI; HOWARD LITTLE; ROBERT LOSHBOUGH; BRUCE LOUGHRIDGE; YVONNE LUMB; LUCILLE LUSTICA; HUBERT MAEHR; MARIE MARCHESE; H. STEVEN |
| Court | U.S. Court of Appeals — Third Circuit |
ON APPEAL FROM THE UNITED STATES District Court FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 94-cv-05999) District Judge: The Honorable Nicholas H. Politan
Before: Nygaard, Alito, and Rosenn, Circuit Judges.
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.
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 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 Geronimo 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 Geronimo. The Appellants filed a notice of appeal on June 21, 2000.
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. S 1291. A decision is considered final for purposes of section 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 (1996); see also Van Cauwenberghe v. Biard, 482 U.S. 517, 521, 108 S.Ct. 1945, 1949 (1988); Aluminum Com. of America v. Beazer East Inc., 124 F.3d 551, 557 (3d Cir. 1997); Christy v. Horn, 115 F.3d 201 203 (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 Assoc. Inc. v. Sharp Props. Inc. 998 F.2d 145, 150 (3d Cir. 1990).
An order dismissing a case outright is, of course, final and appealable. Trent v. Dial Med. of Florida et al., 33 F.3d 217, 220 (3d Cir. 1994) (citing Ingersoll-Rand Fin. 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 &...
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