IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEB 23, 2012
No. 11-13575
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 0:11-cv-60265-FAM
RICHARD B. MAYER,
Plaintiff-Counter
Defendant-Appellee,
versus
WALL STREET EQUITY GROUP, INC.,
a Florida Corporation,
STEVEN S. WEST, an individual
Defendants-Counter
Claimants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.
PER CURIAM:
I.
The Defendants-Appellants, Wall Street Equity, Inc. and Steven S. West,
appeal the district court’s order denying their motion for attorney’s fees. After
filing a complaint, the Plaintiff-Appellee, Richard B. Mayer, settled his FLSA
overtime pay claim with his former employer. Mayer’s attorney filed the
settlement with the district court and requested attorney’s fees. After the district
court dismissed the case pursuant to settlement, Wall Street Equity and West filed
their opposition to Mayer’s fee motion and then requested their own attorneys’
fees, alleging that Mayer’s attorney pursued the litigation in bad faith. The district
court denied Wall Street Equity and West’s motion without explanation. Wall
Street Equity and West then appealed that order to this court while Mayer’s fee
motion remained pending before the district court. Since the filing of this appeal,
a magistrate judge has entered a report and recommendation that the district court
grant Mayer’s fee motion and deny Wall Street Equity and West’s fee motion. We
conclude that because the fee dispute is not yet final in the district court, we lack
jurisdiction to consider this appeal.1
1
Before we dismissed the present appeal on Feb. 23, 2012, the district court adopted the
magistrate judge’s recommendation, granted Mayer’s fee motion, and denied Wall Street Equity
and West’s fee motion on Feb. 17, 2012. Our opinion does not address the substance of Wall
Street Equity and West’s appeal of the district court’s Feb. 17, 2012 order.
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II.
Generally, this Court has jurisdiction only of appeals from “final decisions
of the district courts.”
28 U.S.C. § 1291. A final decision is typically “one that
ends the litigation on the merits and leaves nothing for the court to do but execute
its judgment.” World Fuel Corp. v. Geithner,
568 F.3d 1345, 1348 (11th Cir.
2009) (internal quotation marks omitted). Postjudgment decisions are likewise
subject to the test of finality. Delaney's Inc. v. Ill. Union Ins. Co.,
894 F.2d 1300,
1304 (11th Cir. 1990). However, in postjudgment proceedings, such as attorney
fee disputes, “the meaning of a ‘final decision’ is less clear because the
proceedings necessarily follow a final judgment.” Thomas v. Blue Cross & Blue
Shield Ass'n,
594 F.3d 823, 829 (11th Cir. 2010). Even so, “[w]e ‘treat the
postjudgment proceeding as a free-standing litigation, in effect treating the final
judgment as the first rather than the last order in the case.’”
Id. (quoting Ass’n of
Cmty Orgs. for Reform Now v. Ill. State Bd. of Elections,
75 F.3d 304, 306 (7th
Cir. 1996)). Thus, an order is deemed final if it disposes of all the issues raised in
the motion that initially sparked the postjudgment proceedings. See Thomas,
594
F.3d at 829; Solis v. Current Dev. Corp.,
557 F.3d 772, 776 (7th Cir. 2009).
III.
In the instant case, Mayer’s fee motion initiated the postjudgment
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proceedings, and the district court did not resolve Mayer’s fee motion when it
denied Wall Street Equity and West’s fee motion. Even if the motions had been
filed in reverse order, this court would still lack appellate jurisdiction because the
other fee motion would remain outstanding. Only if a postjudgment order is
“apparently the last order to be entered in the action” is it final and appealable.
Delaney’s Inc.,
894 F.2d at 1304 (quoting 9 J. LUCAS ET AL., MOORE’S FEDERAL
PRACTICE ¶ 100.14[1], at 196-97 (2d ed. 1988)). For us to hold otherwise invites
litigants to appeal every attorney’s fee order, even if other requests remain
outstanding, resulting in a proliferation of piecemeal or repetitious appeals. See
Solis,
557 F.3d at 776. Furthermore, our ruling is consistent with the Supreme
Court’s practical construction of
28 U.S.C. § 1291. See Cohen v. Beneficial Indus.
Loan Corp.,
337 U.S. 541, 546,
68 S. Ct. 1221, 1225 (1949) (“The effect of [§
1291] is to disallow appeal from any decision which is . . . incomplete,” and §
1291's “purpose is to combine in one review all stages of the proceeding that
effectively may be reviewed and corrected if and when final judgment results.”).
IV.
For the aforementioned reasons, we dismiss Wall Street Equity and West’s
appeal for lack of jurisdiction.
APPEAL DISMISSED.
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