Star Insurance Co, et al v. Livestock Prodcr Inc

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-30486
Summary Calendar
________________________
STAR INSURANCE CO.,
Plaintiff-Appellee,
versus
LIVESTOCK PRODUCERS INC.; GEORGE RONALD STRATTON,
Defendants-Appellants.
RONNIE STRATTON, doing business as Livestock Producers Inc.;
LIVESTOCK PRODUCERS INC.,
Plaintiffs-Appellants,
versus
MEADOWBROOK INC., ET AL.,
Defendants,
STAR INSURANCE CO.,
Defendant-Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
Civil Docket Nos.: 99-CV-2, 99-CV-102
_________________________________________________________________
March 19, 2002
Before JOLLY, JONES and SMITH, Circuit Judges.

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* Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
2
PER CURIAM:*
In November 2001, this court remanded to clarify whether
the district court had entered a final decision. The district
court concluded that it had not done so and later entered a final
judgment. The appellants did not file a second notice of appeal.
The only such notice in the record was filed to precipitate the
original appeal -- and remand -- on April 17, 2001. Although the
parties do not appear to have raised the issue, we must examine the
basis of our jurisdiction sua sponte when necessary. United States
v. Cronan, 937 F.2d 163, 164 (5th Cir. 1991). We conclude that we
lack jurisdiction over this appeal.
“A timely notice of appeal is necessary to the exercise
of appellate jurisdiction.” United States v. Cooper, 135 F.3d 960,
961 (5th Cir. 1998). Fed. R. App. P. 4(a)(2), which applies to
civil actions, provides: "A notice of appeal filed after the court
announces a decision or order -- but before the entry of the
judgment or order -- is treated as filed on the date of and after
the entry." Thus “in civil cases, appeal is proper where notice is
filed after the district court rules from the bench but before the
disposition is entered as a final judgment.” Cooper, 135 F.3d at
962. Cases standing for this proposition “fit squarely within the

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1 Earlier decisions of this court had held that a premature
notice of appeal would be valid whenever no post-judgment or post-
trial motions, as set forth in Fed. R. App. P. 4(a)(4), had been
filed. In Cooper, 135 F.3d at 963, this court held that FirsTier
implicitly overruled those earlier decisions.
2 See Williams v. Roberts, 116 F.3d 1126, 1127 & n.3 (5th
Cir. 1997) (when plaintiff-appellant had filed premature notice of
appeal, district court had not yet announced its decision or order,
and thus appeal would not be treated as filed after date of
district court's order dismissing his case; dismissing appeal for
lack of jurisdiction).
3
Supreme Court's mandate -- articulated in the civil context -- that
Rule 4 ‘permits a notice of appeal from a non-final decision to
operate as a notice of appeal from the final judgment only when a
district court announces a decision that would be appealable if
immediately followed by the entry of judgment.’” Id. (quoting
FirsTier Mortgage Co. v. Investors Mortgage Co., 498 U.S. 269, 276,
111 S.Ct. 648, 653 (1991) (emphasis in original)).1 “Systemic
interests in the conservation of judicial resources dictate that a
party must not appeal an order simply because he believes it will
be adverse. Only where the appealing party is fully certain of the
court's disposition, such that the entry of final judgment is
predictably a formality, will appeal be proper. FirsTier allows
premature appeals only where there has been a final decision,
rendered without a formal judgment.” Id. at 963 (citation
omitted).2
The notice of appeal filed in this case was from the
district court’s order of March 26, 2001. This order did two

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4
things. First, it affirmed a magistrate judge’s ruling denying the
appellants’ motion for leave to file a second amended complaint.
The magistrate judge had denied this motion as moot because the
district court had already granted partial summary judgment for the
appellees. Second, the order gave the parties thirty days to reach
agreement on the amount of fees to be awarded.
After the notice of appeal was filed, this court
remanded. The district court then issued a “Clarification and
Order Pursuant to Remand” dated November 15, 2001. In this order,
the district court described the initial appeal filed in this case
as “premature[]” and “improper[]” and concluded that its March 26
order had not squarely addressed the appellants’ claim against
appellee Star Insurance Company for “bad faith settlement
practices.” To remedy this omission, the district court explicitly
denied, as both moot and untimely, their motion for leave to file
a second amended complaint. The court stated that its order was
not a final judgment because “the issue of attorney fees is still
unresolved” and again gave the parties thirty days to reach
agreement on attorney’s fees. Later, on November 30, 2001, the
court ordered that a final judgment be entered, stating that the
fees issue and all other matters in the case had been decided by
consent of the parties.
No further notice of appeal has been filed.

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5
“FirsTier allows premature appeals only where there has
been a final decision, rendered without a formal judgment.”
Cooper, 135 F.3d at 963. The district court’s March 2001 decision
was not a final decision, and the April 2001 notice of appeal was
premature and invalid. This court lacks jurisdiction over the
appeal.
No injustice is done to the appellants by this
conclusion. This court’s remand put the parties on notice of the
possibility that their appeal was premature and invalid because the
March 26 order was not final, and that this court therefore lacked
jurisdiction. The district court’s orders on remand made crystal
clear (if the litigants did not know it already) that the
appellants had appealed too early -- i.e., that on March 26, 2001,
the litigants could not be “fully certain of the court's
disposition, such that the entry of final judgment “[wa]s
predictably a formality.” Cooper, 135 F.3d at 963. A prudent
litigant seeking to appeal would have filed a notice of appeal
after the entry of final judgment on November 30.
Appeal DISMISSED for want of jurisdiction.

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