Supreme Fuels Trading FZE v. Sargeant , 689 F.3d 1244 ( 2012 )

PRYOR, Circuit Judge,

concurring:

I join the panel opinion in full. I agree that the amended judgment entered against International Oil (USA) is not a final order, 28 U.S.C. § 1291, but I write separately to explain why the order enforcing the settlement agreement also is not an order of specific performance that would be appealable as an injunction, id. § 1292(a)(1).

“Under federal law, a district court has inherent power to summarily enforce settlement agreements entered into by parties litigant in a pending case.” Ford v. Citizens and S. Nat’l Bank, Cartersville, 928 F.2d 1118, 1121 (11th Cir.1991) (internal quotation marks omitted). We have stated that a “motion to enforce the settlement agreement essentially is an action to specifically enforce a contract.” Id. at 1122 (internal quotation marks omitted). That description matters because, if a district court grants a motion to enforce a settlement agreement and orders specific performance of that agreement, we may have jurisdiction to review that order even if it is not a final judgment, see 28 U.S.C. § 1291.

We have jurisdiction over “appeals from ... [i]nterloeutory orders ... granting ... injunctions ...,” 28 U.S.C. § 1292(a)(1), and if a “specific-performance order is injunctive in character,” then there is “little doubt” that the order “is immediately appealable under § 1292(a)(1) as an injunction.” Petrello v. White, 533 F.3d 110, 114 (2nd Cir.2008); see also 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3922 (2d ed. 1996) (“An order granting specific performance should present few difficulties for purposes of interlocutory appeal.”). An order enforcing a settlement agreement and ordering specific performance can be an injunction even if the district court “did not use the magic word ‘injunction.’” Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 566 (7th Cir.2000).

Whether the district court intended to issue an injunction is the critical issue in determining whether we can entertain an interlocutory appeal under section 1292(a)(1). A district court can denominate its order as an injunction, or it may enter an order that otherwise complies with the requirements of Federal Rule of Civil Procedure 65(d). When a district court denominates its order as an injunction, we have jurisdiction to entertain an appeal from that order even if the district court fails to comply with the requirements of Rule 65(d). Schmidt v. Lessard, 414 U.S. 473, 477, 94 S.Ct. 713, 716, 38 L.Ed.2d 661 (1974); see also Hatten-Gonzales v. Hyde, 579 F.3d 1159, 1169 (10th Cir.2009) (ruling that an order of the district court approving a settlement agreement “serves as an injunction for jurisdictional purposes, even if it fails to comply with Rule 65(d)” because “the district court plainly intended to provide plaintiffs injunctive relief and entered an order attempting to do so”). And when a district court fails to denominate its order as an injunction, but otherwise complies with the requirements of Rule 65(d), we will treat its order as an appealable injunction. See Union Oil Co., 220 F.3d at 566. Rule 65(d) requires that the order (1) “state the reasons why it issued,” (2) “state its terms specifically,” and (3) “describe in reasonable detail — and not by referring to the complaint or other document — the act or acts restrained or required.” Fed.R.Civ.P. 65(d). When the “order is injunctive in nature, requiring [the defendant] to perform enumerated steps under threat of the contempt power,” the order is an injunction subject to appellate review under section 1292(a)(2). Union Oil Co., 220 F.3d at 566. But “the absence of any semblance of effort by the District Court to comply with Rule 65(d)” is evidence that the district court did not intend to enter “an order granting an injunction.” Gunn v. Univ. Comm. to End the War in Viet Nam, 399 U.S. 383, 389 n. 4, 90 S.Ct. 2013, 2017 n. 4, 26 L.Ed.2d 684 (1970).

So far as we can discern from this record, the district court did not intend to issue an injunction when it entered the order enforcing the settlement agreement because the district court neither stated that it was issuing an injunction nor complied with Rule 65(d). And counsel for both Supreme Fuels and International Oil (USA) do not contend that the district court entered an injunction when it entered its order enforcing the settlement agreement. That order failed to “impose any deadline for [the defendant] to perform any act.” Petrello, 533 F.3d at 116. The district court instead stated, without elaboration, that the motion of Supreme Fuels “to enforce the settlement agreement is GRANTED.” Because “an order for specific performance that lacks specificity is not a proper injunction,” id. at 115, the order enforcing the settlement agreement did not comply with Rule 65(d).

In the absence of any statement by the district court that it intended its order enforcing the settlement agreement to function as an injunction and the absence of any semblance of effort to comply with Rule 65(d), the order enforcing the settlement agreement is not an order of specific performance that is appealable as an injunction under section 1292(a)(1). That said, I have little doubt that the district court could have crafted an order that would have permitted our review of the enforcement of the settlement agreement even though the claims of Supreme Fuels against the other defendants remain pending. But the district court did not craft that order. No matter how we interpret the order that the district court entered, we lack jurisdiction to review it.