Vito Masilotti v. Citigroup Mortgage Inc.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1261
VITO MASILOTTI,
Plaintiff - Appellant,
v.
CITIGROUP MORTGAGE INC.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:13-cv-03360-JFM)
Submitted: July 23, 2014 Decided: July 30, 2014
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Vito Masilotti, Appellant Pro Se. John Byron Flood, OGLETREE
DEAKINS NASH SMOAK & STEWART, PC, Washington, D.C., for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Vito Masilotti seeks to appeal the district court’s
order granting Citigroup Mortgage Inc.’s motion for an order
compelling arbitration and staying his action pending resolution
of any arbitration proceedings. Masilotti has also filed an
application to proceed in forma pauperis. Because the appeal is
interlocutory, we deny Masilotti’s application to proceed in
forma pauperis and dismiss the appeal for lack of jurisdiction.
Section 16 of the Federal Arbitration Act provides
that “[a]n appeal may be taken from . . . a final decision with
respect to an arbitration that is subject to this title[,]” or
from interlocutory orders denying arbitration, but an appeal
generally “may not be taken from an interlocutory order . . .
granting a stay of any action” referred to arbitration, or
“directing arbitration to proceed[.]” 9 U.S.C. § 16(a)(3), (b)
(2012); see In re Pisgah Contractors, Inc., 117 F.3d 133, 135
(4th Cir. 1997). *
A “final decision” for purposes of § 16 is one that
“ends the litigation on the merits and leaves nothing more for
the court to do but execute the judgment.” Green Tree Fin.
*
Section 16(b) also permits the court to review, in its
discretion, interlocutory orders that a district court certifies
pursuant to 28 U.S.C. § 1292(b) (2012). The district court did
not do so here.
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Corp.-Ala. v. Randolph, 531 U.S. 79, 86 (2000) (internal
quotation marks omitted). As a result, where a district court
orders arbitration and dismisses an action, “leaving the court
nothing to do but execute the judgment,” the order is a final,
appealable order. Id. By contrast, where the district court
orders arbitration and enters “a stay instead of a dismissal
. . . that order would not be appealable,” as it is
interlocutory. Id. at 87 n.2.
The district court’s February 28, 2014 order was not a
final, appealable order. As we have previously explained, an
order staying an action and compelling arbitration is not final
and appealable even if the district court “retained jurisdiction
through its stay only to enforce or vacate a forthcoming
arbitration award[,]” and therefore, as a “practical” matter,
“render[ed] a final resolution as to all issues before it.”
Humphrey v. Prudential Sec. Inc., 4 F.3d 313, 317 (4th Cir.
1993). The fact that the district court’s order directs that
the case be administratively closed does not render the order
final and appealable. See Penn-Am. Ins. Co. v. Mapp, 521 F.3d
290, 295 (4th Cir. 2008) (finding that “an otherwise non-final
order does not become final because the district court
administratively closed the case after issuing the order. A
reviewing court must consider whether an order is final and
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appealable without regard to the existence of the administrative
closure.”).
Accordingly, we deny Masilotti’s application to
proceed in forma pauperis and dismiss the appeal for lack of
jurisdiction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
DISMISSED
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