United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 13, 2010 Decided January 14, 2011
No. 09-7128
CAPITOL SPRINKLER INSPECTION, INC.,
APPELLANT
v.
GUEST SERVICES, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:05-cv-02115-CKK)
Theodore J. Segletes III argued the cause for appellant.
With him on the briefs was Michael T. Hamilton.
Stephen A. Horvath argued the cause and filed the brief
for appellee Guest Services, Inc.
Before: GINSBURG, ROGERS and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GINSBURG.
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GINSBURG, Circuit Judge: Capitol Sprinkler Inspection,
Inc., the defendant in the district court, appeals the summary
judgment entered for Guest Services, Inc. on Capitol’s third-
party claims for negligence and breach of contract in
connection with a burst pipe at a building managed by Guest.
Guest argues we lack jurisdiction for want of a timely notice
of appeal. We hold that we have jurisdiction of the appeal
based upon Federal Rule of Appellate Procedure 4(a)(2) and
affirm the district court in all respects.
I. Background
Gallaudet University hired Guest to manage the
conference center building on its campus in Washington, D.C.
Guest in turn retained Capitol to service the fire sprinkler
system in the conference center. One of Capitol’s contractual
duties was “open[ing] condensation drains on drum drip
connections and drain[ing] low points during fall and winter
inspection.”
In January 2003 two of Capitol’s inspectors came to the
conference center, where they were met by someone who
escorted them around the building. The record does not
reveal whether their escort was an employee of Guest. While
on site, the inspectors drained water from all but one of the
drum drips; that one was in a locked room for which the
escort was not carrying a key card. Later that month, a pipe
fitting froze, burst, and discharged water, which would not
have happened if Capitol’s inspectors had drained the drum
drip.
Gallaudet filed a claim for the resulting damage with its
property insurer, St. Paul Mercury Insurance. St. Paul, as
Gallaudet’s subrogee, then filed suit against Capitol for both
negligence and breach of contract. Capitol in turn filed a
3
third-party complaint against Guest, seeking contribution or
indemnity, again based upon both negligence and breach of
contract.
All parties filed dispositive motions. St. Paul moved for
partial summary judgment on its contract claim against
Capitol, which cross-moved for summary judgment against
St. Paul on both claims. Capitol and Guest filed cross-
motions for summary judgment on the third-party claims. All
the motions drew responses and replies except that Guest did
not timely respond to Capitol’s motion for summary
judgment. The district court denied Guest’s motion to file a
late response but nonetheless deemed Capitol’s motion for
summary judgment opposed because Guest, in the course of
supporting its own motion, had briefed the relevant issues.
The district court denied Capitol’s motion for summary
judgment against Guest and its motion to strike Guest’s reply
in support of its motion for summary judgment. Because St.
Paul had argued that Capitol could not prevail without expert
testimony to explain the applicable standard of care in tort and
the contractual duty Guest owed to Capitol but “the parties
[had] devote[d] only scant attention to” the subject, the court
was “unwilling to rule on [that] dispositive issue”; instead the
court held all other motions in abeyance pending
supplemental briefing on the need for expert testimony. On
June 15, 2009 the district court, having determined Capitol
could not prove its claims or defenses without expert
testimony to explain Guest’s duty, entered an order granting
Guest’s and St. Paul’s motions respectively for summary and
for partial summary judgment and stating “Guest Services is
dismissed from further proceedings in this case.” St. Paul’s
tort claim against Capitol, which had not been a subject of St.
Paul’s dispositive motion, alone remained pending.
4
Capitol then filed a motion pursuant to Federal Rule of
Civil Procedure 54(b) asking the district court to certify an
interlocutory appeal or, in the alternative, for reconsideration
of its June 15 order granting summary judgment to Guest.
The district court denied Capitol’s motion, holding an
immediate appeal would be inappropriate because the third-
party claims overlapped with St. Paul’s claims against Capitol
and rejecting Capitol’s arguments in the alternative for
reconsideration.
On October 16 Capitol and St. Paul informed the court
they had “settled all claims between them,” would “finalize a
settlement agreement” within 30 days, and would thereafter
file a joint stipulation of dismissal. Later that same day
Capitol filed a notice of appeal with respect to its claims
against Guest. Later still that day, the district court entered an
order dismissing the case without prejudice based upon the
impending settlement and stating the case would stand
dismissed with prejudice as of October 26 unless counsel
moved to extend the date or to reopen the case. On October
23 St. Paul and Capitol filed their joint stipulation of
dismissal. The order dismissing the case having become final
on October 26, this appeal by Capitol proceeded without
further action by the district court and without Capitol having
filed a notice of appeal from the final judgment.
II. Analysis
On appeal, Capitol challenges the district court’s order
denying its and granting Guest’s motion for summary
judgment, and the orders denying its motions (1) to
supplement its expert disclosures, (2) to strike Guest’s reply,
and (3) for reconsideration or for an appealable judgment
under Rule 54(b). Guest defends each of those orders but first
argues this court lacks appellate jurisdiction. We begin, of
5
course, with our jurisdiction. Yousuf v. Samantar, 451 F.3d
248, 251 (D.C. Cir. 2006).
A. Appellate Jurisdiction
To vest this court with appellate jurisdiction under 28
U.S.C. § 1291, the appellant must file a timely notice of
appeal from a final, appealable judgment of the district court.
See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203
(1988) (timely notice of appeal is “mandatory and
jurisdictional”); St. Marks Place Hous. Co. v. U.S. Dep’t of
Hous. & Urban Dev., 610 F.3d 75, 79 (D.C. Cir. 2010) (final
judgment required). The district court ordinarily enters a final
judgment only after it has disposed of all claims against all
parties. See FED. R. CIV. P. 58; Cambridge Holdings Grp.,
Inc. v. Federal Ins. Co., 489 F.3d 1356, 1363 (D.C. Cir.
2007). The district court may, however, exercise its
discretion to “direct entry of a final judgment as to one or
more, but fewer than all, claims or parties.” FED. R. CIV. P.
54(b).
In the present case, it is undisputed Capitol’s only notice
of appeal was filed prematurely, that is, before the district
court had entered a final, appealable judgment. When Capitol
filed the notice of appeal on October 16, the district court had
granted summary judgment in favor of Guest on Capitol’s
third-party claims — the only claims Capitol sought to appeal
— but had neither disposed of all St. Paul’s claims nor
entered a partial final judgment pursuant to Rule 54(b).
Indeed, the court had expressly denied Capitol’s motion for a
Rule 54(b) judgment. St. Paul and Capitol had notified the
court earlier that day of their agreement to settle the
remaining claims, but their letter informed the court they
would file a stipulation of dismissal in the future, making it
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clear the proceedings in the district court were still ongoing as
of October 16.
A premature notice of appeal “filed after the court
announces a decision or order [] but before the entry of
judgment or order” can be saved by Federal Rule of Appellate
Procedure 4(a)(2), which provides such a notice is to be
“treated as filed on the date of and after the entry” of a
judgment or order. Still, the Supreme Court has held “Rule
4(a)(2) permits a notice of appeal from a nonfinal 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,” because in such a situation a litigant could
reasonably believe the order was appealable. FirsTier Mortg.
Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276 (1991). In
FirsTier, Rule 4(a)(2) rescued a notice of appeal filed after
the district court had “announced from the bench” a ruling
that addressed all the claims before it. Id. at 270. “Had the
judge set forth the judgment immediately following the bench
ruling, and had the clerk entered the judgment on the docket,”
there could be “no question that the bench ruling would have
been ‘final’ under § 1291.” Id. at 277.
In Outlaw v. Airtech Air Conditioning & Heating, Inc.,
this court held Rule 4(a)(2) applies to a ruling disposing of
fewer than all parties or all claims no differently than to a
ruling disposing of an entire case. 412 F.3d 156, 161–62
(2005) (Roberts, J.). That is, if the appellant files a notice of
appeal after the district court has issued, orally or in writing,
an order that would be appealable if followed by a partial
final judgment issued pursuant to Rule 54(b), then the notice
ripens when a final judgment is later entered. The court
reached this issue in Outlaw because the plaintiff filed a
notice of appeal after the district court had entered summary
7
judgment for two of the three defendants. Id. at 158–59. In
these circumstances, we acknowledged that, because the
court’s order did not dispose of all claims against all parties,
“[s]imple entry of judgment would not have had the same
effect” as in FirsTier but we saw no reason the rule in that
case should not extend to a case in which entry of a Rule
54(b) judgment would have made an order appealable. Id. at
161–62. When the district court later enters a final judgment,
regardless whether “the hypothetical judgment considered in
applying [the FirsTier test is] the same type as the one
actually entered,” the notice of appeal is saved by Rule
4(a)(2). Id. at 162.
In this case, Capitol would have been able to appeal if the
district court had entered a Rule 54(b) judgment after it
granted summary judgment for Guest, and it is undisputed the
district court did eventually enter a final judgment disposing
of the entire case. The relevant question here is whether
anything that happened before Capitol filed its notice of
appeal warrants a different result than in Outlaw.
Guest first argues Rule 4(a)(2) does not apply because it
applies only to decisions that have been “announced from the
bench” whereas here, unlike in Outlaw, all decisions were
written. That factual difference is of no moment, however;
indeed, the relevant ruling in Outlaw was a written order
granting summary judgment as to fewer than all parties. See
id. at 159.
A more promising distinction between this case and
Outlaw might be that here the district court had denied
Capitol’s Rule 54(b) motion and request to certify an
interlocutory appeal against Guest, arguably indicating
thereby that the possibility of an appealable judgment was
foreclosed. The difference is not significant, however; the
8
analysis in Outlaw turned upon whether a “hypothetical”
judgment under Rule 54(b) would have rendered the case
appealable, id. at 162 (“[t]he analysis was hypothetical in
FirsTier itself”). We did not consider whether there was “no
just reason for delay” or whether the district court would have
abused its discretion by entering a Rule 54(b) judgment, as we
would have done were we reviewing an actual rather than a
hypothetical judgment. See, e.g., Brooks v. Dist. Hosp.
Partners, L.P., 606 F.3d 800, 806–07 (D.C. Cir. 2010); Bldg.
Indus. Ass’n v. Babbitt, 161 F.3d 740, 743–45 (D.C. Cir.
1998). A Rule 54(b) judgment was no less hypothetically
possible in this case once the district court had entered its
order granting summary judgment.
At oral argument Guest argued the reference to a
litigant’s reasonable expectations in FirsTier, 498 U.S. at
276–77, suggests Capitol should not have the benefit of Rule
4(a)(2) because, having made and lost a Rule 54(b) motion, it
was not reasonable to believe the partial summary judgment
order was appealable. In Outlaw we understood the rather
“imprecise guide” of reasonableness not as a stand-alone test
but rather as informing the more concrete aspects of the
Supreme Court’s analysis in FirsTier. See 412 F.3d at 161–
62. Rather than deciding whether the plaintiff “reasonably
but mistakenly” thought the summary judgment order was a
final judgment, this court focused upon the Supreme Court’s
statement that Rule 4(a)(2) rescues a notice of appeal taken
from a decision that “‘would be appealable if immediately
followed by the entry of judgment.’” Id. at 161 (quoting
FirstTier, 498 U.S. at 276). As we recognized, this objective
understanding of Rule 4(a)(2) is more appropriate to a
jurisdictional analysis than would be a flexible standard
focusing upon reasonableness. See id. Applying this
objective test, Capitol’s notice of appeal was timely under
9
Rule 4(a)(2) and we have jurisdiction to consider its appeal, to
which we now turn.
B. Capitol’s Motion for Summary Judgment
The district court denied Capitol’s motion for summary
judgment because it found there were
genuine issues of material fact as to whether
Capitol Sprinkler was escorted by a Guest
Services employee ..., whether and to what
extent Guest Services operated as an agent of
Gallaudet, and whether and to what extent [the
relevant standard of the National Fire
Protection Association was] incorporated into
the Inspection Agreement between Capitol
Sprinkler and Guest Services.
St. Paul Mercury Ins. Co. v. Capitol Sprinkler Inspection,
Inc., 573 F. Supp. 2d 152, 178–79 (2008).
Capitol argues the court should have granted its motion
for summary judgment because Guest did not oppose the
motion, as required by Local Civil Rule 7(h) and by the
district court’s scheduling order. As Guest correctly points
out, however, Rule 7(h) provides the district court “may
assume” facts not denied in an opposition have been admitted,
thus leaving the matter to the district court’s discretion, and
“this court has long recognized that the district court does not
abuse its discretion by declining to invoke the requirements of
the local rule in ruling on a motion for summary judgment.”
Burke v. Gould, 286 F.3d 513, 518 (D.C. Cir. 2002)
(addressing predecessor rule). The district court’s scheduling
order did not limit this discretion because, being interlocutory,
the district court retained the power to revise the order at any
10
time prior to appeal. See Langevine v. District of Columbia,
106 F.3d 1018, 1023 (D.C. Cir. 1997). In the present case, in
which Guest had filed a cross-motion addressing the same
issues that would have been addressed in a response to
Capitol’s motion, we hold the district court did not abuse its
discretion by declining to grant Capitol’s summary judgment
motion for want of an opposition thereto.
Capitol also argues the district court erred by denying the
summary judgment motion on its merits, a decision we review
de novo. McFadden v. Ballard Spahr Andrews & Ingersoll,
LLP, 611 F.3d 1, 3 (D.C. Cir. 2010). Summary judgment is
appropriate if, viewing all evidence “in the light most
favorable to the nonmoving party and draw[ing] all
reasonable inferences in its favor,” Venetian Casino Resort,
L.L.C. v. EEOC, 530 F.3d 925, 929 (D.C. Cir. 2008), “there is
no genuine dispute as to any material fact.” FED. R. CIV. P.
56(a).
As to the merits, Capitol’s first but cursory argument is
that the district court erred by weighing the evidence. This
argument is beside the point because our review is de novo.
See Wiley v. Glassman, 511 F.3d 151, 156 (D.C. Cir. 2007)
(“because we review the [d]istrict [c]ourt’s decision de novo,
we conduct an independent evaluation of the record”).
Capitol also fails to establish it is entitled to judgment as
a matter of law because Guest was responsible for the acts
and omissions of the escort. One of Capitol’s inspectors
testified in his deposition the escort was “assigned” to provide
access to certain rooms but did not say by whom he was
assigned. There was an affidavit before the district court from
Capitol’s other inspector conclusorily stating the escort was
“an agent of Guest Services, Inc.” Even assuming — as did
the district court, see 573 F. Supp. 2d at 161 — this is
11
evidence upon which a jury reasonably could find the escort
worked for Guest, summary judgment for Capitol is
inappropriate because, as Guest notes, the testimony falls
short of establishing the escort’s employment status as a
matter of law, such that a jury could not find otherwise.
Next, Capitol argues that, unlike the district court, we
should consider Guest’s conduct before and on the day the
pipe burst, “not the least of which was [its] failure to timely
terminate water flow.” Notwithstanding its use of the phrase
“the least,” Capitol identifies no other conduct the court
should have considered. As Guest argues, the alacrity with
which it staunched the flow of water is relevant only to the
measure of damages, which is not at issue in this appeal.
Finally, Capitol’s argument that it could have proven its
case using St. Paul’s expert or its own so-called “hybrid” fact-
cum-expert witnesses, is off the mark because, again as Guest
notes, the testimony of those witnesses would not bear upon
the relationship between Guest and the escort. Therefore we
affirm the order of the district court denying Capitol’s motion
for summary judgment.
C. Guest’s Motion for Summary Judgment
Capitol next challenges the order granting summary
judgment for Guest. The district court granted that motion
because Capitol had failed to present the expert testimony
required under District of Columbia law to prevail upon its
claims, which sound in tort and contract. St. Paul Mercury
Ins. Co. v. Capitol Sprinkler Inspection, Inc., 627 F. Supp. 2d
1, 2 (2009). Our review is de novo. McFadden, 611 F.3d at
3.
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First, Capitol argues summary judgment was
inappropriate because the district court had concluded there
were genuine issues of material fact as to whether the escort
worked for Guest, whether Guest was Gallaudet’s agent, and
whether the National Fire Protection Association (NFPA)
standards were incorporated into the contract between Guest
and Capitol. Guest responds that, although disputed, none of
these three issues is material because Capitol’s failure to
disclose, pursuant to Rule 26, expert testimony concerning the
standard of care or contractual duty independently dooms its
claims respectively for negligence and for breach of contract.
Both claims are premised upon applying the NFPA standard
for building owners’ dealings with inspectors. Under that
standard, a building owner must “provide ready accessibility
to components of water-based fire protection systems that
require inspection, testing, or maintenance.”
As the district court noted, 627 F. Supp. 2d at 11–12,
Capitol did not disclose any expert testimony concerning the
meaning of “ready accessibility,” served only a cursory
disclosure that did not address the standard of care and did not
designate any of its “hybrid” witnesses to offer expert
testimony. Capitol’s argument it could have relied upon St.
Paul’s expert witness is also unpersuasive because, as Guest
notes, his report does not address the meaning of “ready
accessibility.”
Capitol’s fallback argument is that expert testimony was
not required in any event: “If the court had provided guidance
on the statute’s interpretation, a jury could have come to a
conclusion regarding whether Guest provided Capitol with
‘ready accessibility,’” all the more so because the disputed
issue — whether the drum drip was readily accessible if the
inspectors had to wait five to ten minutes to gain access — is
factually straightforward. The controlling case law is less
13
forgiving than Capitol assumes; in the District of Columbia an
expert witness is required to establish the standard of care or
the contractual duty, see Sherman v. Adoption Ctr. of
Washington, Inc., 741 A.2d 1031, 1036 n.11 (D.C. 1999)
(same analysis for both), when “the subject in question is so
distinctly related to some science, profession or occupation as
to be beyond the ken of the average layperson,” Briggs v.
Wash. Metro. Area Transit Auth., 481 F.3d 839, 845 (D.C.
Cir. 2007) (internal quotation marks omitted). In the last cited
case the court held expert testimony was required in order to
establish the standard for “adequate” lighting of a temporary
walkway in a construction area of a Metrorail station and to
establish when it was safe to replace plywood barriers around
the construction area with chain-link fencing. Id. at 846. As
there noted, District of Columbia cases call for expert
testimony concerning the maintenance of leaning trees, the
application of hair relaxer, and even the tightness of hand
cuffs. Id. at 845–86 (collecting cases). Capitol relies upon
McNeil Pharmaceutical v. Hawkins, 686 A.2d 567, 580 (D.C.
1996), because the court there observed that “guidance from
the court” might, in a negligence per se case, provide an
alternative to expert testimony “to assist the jury’s
understanding.” The case stands, however, for the more
narrow proposition that in some circumstances, as where a
statute uses terms familiar to a lay person, the district court’s
jury instructions may provide sufficient guidance.
In the light of these precedents, Capitol clearly was
required to present expert testimony on what it means to have
“ready accessibility” to a drum drip. Although accessibility
of a drum drip is not a complex technical issue and might
appear to be within a jury’s understanding, id. at 845, the
specific requirements of a set of rules for fire protection, like
the specific requirements for safely lighting a subway station,
are not a matter of common knowledge. Because Capitol did
14
not offer expert testimony to explain the NFPA standard,
summary judgment for Guest was appropriate.
D. Rulings Reviewed for Abuse of Discretion
As noted before, Capitol also challenges the orders of the
district court denying its motions (1) to supplement expert
disclosure, (2) to strike a reply, and (3) for judgment under
Rule 54(b) or for reconsideration. We review all three rulings
for abuse of discretion. See Washburn v. Lavoie, 437 F.3d 84,
94 (D.C. Cir. 2006) (discovery deadlines); Jackson v.
Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d
145, 150 (D.C. Cir. 1996) (motion to strike); Flynn v. Dick
Corp., 481 F.3d 824, 829 (D.C. Cir. 2007) (motion for
reconsideration).
1. Motion to Supplement Expert Disclosure
Capitol argues the district court erred by denying its
motion to file a supplement to its expert disclosures after the
deadline for filing had passed and discovery had closed. The
court denied the motion because it concluded Capitol had not
shown “good cause” for its tardiness, as required by Federal
Rule of Civil Procedure 16(b)(4). St. Paul Mercury Ins. Co.
v. Capitol Sprinkler Inspection, Inc., Civ. A. No. 05-2115,
2007 WL 1589495, at *5–9 (June 1, 2007). Capitol argues
there was good cause for an extension because Guest did not
promptly make available for deposition certain witnesses who
would have provided facts essential to the report by Capitol’s
expert.
As Guest suggests, “[t]he good cause standard requires
the ‘party seeking relief to show that the deadlines cannot
reasonably be met despite [its] diligence.’” S&W Enters., LLC
v. SouthTrust Bank, 315 F.3d 533, 535 (5th Cir. 2003)
15
(quoting 6A CHARLES ALAN WRIGHT, ET AL., FEDERAL
PRACTICE AND PROCEDURE § 1522.1 (2d ed. 1990)). Capitol’s
actions in this case do not bespeak diligence or any sense of
urgency at all in preparing its expert’s report, which was only
a single page in length. Capitol noticed the depositions at
issue for October 16, 2006 — the same day the report was due
— meaning, as the district court concluded, the report “could
not practically have incorporated any information from” the
depositions. Civ. A. No. 05-2115, 2007 WL 1589495, at *7.
Even after the depositions were cancelled and the district
court extended the expert disclosure deadline by a month,
Capitol did not again notice the depositions or file a
supplement to its report during that period. Indeed, Capitol
never again noticed the depositions and attempted to
supplement its report only after the close of discovery.
Because Capitol did not show “good cause,” the district court
did not abuse its discretion by denying Capitol’s motion for
an extension of time.
2. Motion to Strike Guest’s Reply
Capitol next argues the district court erred by denying its
motion to strike the reply Guest filed in support of its motion
for summary judgment; the motion to strike was based upon
Guest’s supposedly late introduction of arguments and facts.
The district court rejected this argument and denied the
motion to strike because the reply brief and an attached
affidavit did no more than bolster Guest’s opening
arguments. * Accordingly, we hold the district court did not
abuse its discretion by denying the motion. Cf.
Stabilisierungsfonds Fur Wein v. Kaiser Stuhl Wine Distrib.,
*
We note also the allegedly new facts and arguments to which
Capitol points were raised in direct reply to Capitol’s submission of
what the district court later determined was a “sham affidavit.”
16
647 F.2d 200, 201 (D.C. Cir. 1981) (“motions to strike, as a
general rule, are disfavored”).
3. Motion for Interlocutory Appeal or Reconsideration
Finally, Capitol argues the district court erred by denying
its motion for a Rule 54(b) judgment, which would have
enabled Capitol to appeal at once the order granting summary
judgment to Guest, or in the alternative, for reconsideration of
the same order. The interlocutory appeal issue is now moot
because a final judgment has been entered and the case has
been presented to this court on appeal. Thus, Capitol has
already obtained the relief it sought, that is, the right to appeal
the order. See I.A.M. Nat’l Pension Fund Benefit Plan A v.
Cooper Indus., Inc., 789 F.2d 21, 24 (D.C. Cir. 1986)
(interlocutory order merges into final judgment and is
reviewable upon appeal from final judgment).
The district court addressed Capitol’s request for
reconsideration pursuant to Rule 54(b), which not only
authorizes the court to enter a partial final judgment but also
recognizes its inherent power to reconsider an interlocutory
order “as justice requires.” See Greene v. Union Mut. Life
Ins. Co. of Am., 764 F.2d 19, 22–23 (1st Cir. 1985) (Breyer,
J.) (“the district judge is in the best position to assess whether
or not ‘justice requires’ [reconsideration]”).
The district court understandably determined justice did
not require reconsidering its order, for Capitol raised no
arguments for reconsideration the court had not already
rejected on the merits except its argument that the court had
improperly weighed testimony. Similarly, on appeal, Capitol
merely repeats its arguments concerning summary judgment.
These arguments are without merit for reasons already stated;
17
a fortiori, the district court did not abuse its discretion by
denying Capitol’s motion for reconsideration.
III. Conclusion
For the foregoing reasons, this court has appellate
jurisdiction of the instant matter pursuant to Rule 4(a)(2), and
the judgment of the district court is in all respects
Affirmed.