Maureen O'Brien v. ABB DE, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-12094 ELEVENTH CIRCUIT
DECEMBER 16, 2005
Non-Argument Calendar
________________________ THOMAS K. KAHN
CLERK

D. C. Docket No. 04-20237-CV-ASG

MAUREEN O’BRIEN,

Plaintiff-Appellant,

versus

ABB DE INC.,
a foreign corporation licensed to do business in Florida,
f.k.a. ASEA Brown Boveri, Inc.,
f.k.a. ABB Power T&D Power Enterprises, Inc.,
a.k.a. T&D Enterprises, Inc.,
a.k.a. ABB T&D Enterprises, Ltd.,

Defendant-Appellee.
________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(December 16, 2005)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
 Maureen O’Brien appeals the district court’s entry of summary judgment on her

claims for open account, account stated, and quantum meruit and the court’s order

awarding prevailing-party fees and costs, pursuant to a provision in the parties’

written contract, to ABB DE, Inc. (“ABB”). On appeal, O’Brien asserts (1) the

district court prematurely granted ABB’s motion for summary judgment prior to the

start of discovery, and (2) the district court erred by entering summary judgment on

her claims based on the existence of a written contract. In her brief, she also requests

this Court “to stay execution” of the district court’s award of fees and costs, pending

our decision on her challenge to the summary judgment. After careful review, we

dismiss the appeal as to the summary judgment, based on our lack of jurisdiction, and

we affirm the order awarding fees and costs.

It is well-settled that absent the filing of a timely notice of appeal (“NOA”), we

lack jurisdiction over an appeal. Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247

F.3d 1262, 1272 (11th Cir. 2001); Bogle v. Orange County Bd. of County Com’rs,

162 F.3d 653, 660 (11th Cir. 1998); Zipperer ex rel. Zipperer v. Sch. Bd. of Seminole

County, 111 F.3d 847, 849 (11th Cir. 1997). Thus, as a federal court of limited

jurisdiction, we must determine sua sponte whether we have jurisdiction. Wooden,

247 F.3d at 1271; see also Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004)

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(“Federal courts are obligated to inquire into subject-matter jurisdiction sua sponte

whenever it may be lacking.” (quotation omitted)).

The procedural history relevant to our jurisdictional analysis is straightforward.

O’Brien filed this action in the Circuit Court of the Eleventh Judicial Circuit, in and

for Miami-Dade County, and ABB removed the case to federal court. Pursuant to

ABB’s motion, the district court entered summary judgment on June 14, 2004. On

that same date, in a different order, the court entered final judgment and closed the

case. It is undisputed that: (1) at that point, pursuant Fed. R. App. P. 4(a)(1)(A),

O’Brien had 30 days, or until July 14, 2004, in which to file her NOA, see Fed. R.

App. P. 4(a)(1)(A) (providing that NOA in a civil case where the United States is not

a party must be filed within 30 days after the judgment or order appealed from is

entered); and (2) O’Brien did not file her NOA, or move for an extension of time to

do so, during that 30-day period.

Thereafter, on July 14, 2004, ABB filed a verified motion for attorneys’ fees

and costs, seeking $41,256.00 in fees and $1,970.56 in costs, pursuant to the parties’

written contract which provided for an award of “prevailing party” fees. On July 26,

2004, which was 41 days after the entry of summary judgment, O’Brien filed a

memorandum in opposition to ABB’s fees and costs request. In this memorandum,

O’Brien, inter alia, (1) challenged the district court’s entry of summary judgment as

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premature; (2) asserted that the written contract upon which the district court relied

in entering summary judgment allowed for her equitable claims to proceed; (3) stated

that counsel had not appealed the summary judgment for tactical, albeit erroneous,

reasons; and (4) summarily mentioned that if the court considered the issues of fees,

it should also “extend the time for review of the entire case, de novo, on equitable

grounds because the ‘ends of justice’ so require.”1

On February 24, 2005, the magistrate judge to whom the motion for fees and

costs was assigned issued a Report and Recommendation (“R&R”), recommending

that ABB’s motion be granted in part. The magistrate judge recommended awarding

$24,477.00 in fees and $1,970.56 in costs. In her order, the magistrate judge

observed that counsel’s reasons for not appealing from the summary judgment were

not relevant to the issue of ABB’s entitlement to fees and costs. In a footnote, the

magistrate judge stated: “Plaintiff argues that if the Defendant is awarded attorney’s

fees, the Court should extend Plaintiff’s time to file a notice of appeal. This issue is

not presently ripe and will not be considered here. Plaintiff may make an appropriate

1
For this proposition O’Brien cited CNA Fin. Corp. v. Brown, 162 F.3d 1334 (11th Cir.
1998), which we find inapposite. That case involved whether, following a court-annexed arbitration
award, a litigant could request a trial de novo outside of the 30-day period for filing such a request,
where allowing the litigant to do so would “further the ends of justice.” Id. Because, unlike the time
limit for filing a NOA, the limitations period in CNA Fin. was not jurisdictional, we affirmed the
district court’s allowance of the late-filed motion.

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motion if attorney’s fees are awarded.” (Emphasis added). It is undisputed that, prior

to filing her NOA, O’Brien did not file anything further in the district court.

On March 15, 2005, the district court adopted the R&R, thereby granting

ABB’s motion for fees and costs in part. Thereafter, on April 11, 2005, O’Brien filed

her NOA, enumerating that she was appealing “the judgment of the United States

District Court Southern District of Florida entered on March 15, 2005 in the above-

captioned case.”

O’Brien now attempts to challenge the June 14, 2004 summary judgment on

numerous grounds. We conclude that we lack jurisdiction to consider her arguments.

“The timely filing of a notice of appeal is ‘mandatory and jurisdictional.’ If the notice

is not timely filed, the appellate court is without jurisdiction to hear the appeal.”

Advanced Estimating Sys., Inc. v. Riney, 77 F.3d 1322, 1323 (11th Cir. 1996)

(quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 61, 103 S. Ct. 400,

403, 74 L. Ed. 2d 225 (1982)). While it is true, as O’Brien urges, that a district court

may extend the time for filing the NOA, from our careful review of the record, it is

clear that O’Brien never moved for, and the district court never granted her, such an

extension. See Fed. R. App. P. 4(a)(5) (enumerating requirements for motion for

extension of time). Accordingly, her April 11, 2005 NOA was untimely to appeal

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from the June 14, 2004 order of summary judgment and we dismiss that portion of her

appeal.2

As for O’Brien’s remaining claim, we affirm the award of fees and costs

because O’Brien’s argument on this point consists solely of requesting us “to stay

execution” of the award of fees and costs, pending our disposition of the appeal as to

the summary judgment. Given our dismissal of the appeal from the summary

judgment, that argument is moot. Accordingly, we affirm the award of fees and costs.

DISMISSED IN PART AND AFFIRMED IN PART.

2
In addition to being untimely, O’Brien’s NOA is facially insufficient to challenge the
order of summary judgment, which is not designated as the “order appealed from.” Federal Rule of
Appellate Procedure 3 governs the required contents of a notice of appeal and provides, inter alia,
that the notice “designate the judgment, order, or part thereof appealed from. . . .” Fed. R. App. P.
3(c). Here, O’Brien’s NOA states she is appealing “the judgment of the United States District Court
Southern District of Florida entered on March 15, 2005 in the above-captioned case.” Even after
liberally construing her NOA, we are unable to extrapolate an intent to appeal from the summary
judgment. In fact, our review of O’Brien’s memorandum in opposition to ABB’s motion for fees
and costs makes clear that, at that point in the district court proceedings, O’Brien, at a minimum,
suspected that she could not appeal the summary judgment due to the time bar we discussed above.
We make this inference from that portion of the opposition memorandum in which her attorney
states that he made a tactical, albeit erroneous, decision not to appeal the summary judgment order
previously entered. Thus, in addition to being untimely, O’Brien’s NOA is facially insufficient to
challenge the summary judgment.

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