Younes Kabbaj v. American School of Tangier, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, SHWARTZ and GREENBERG, Circuit Judges. Total Pages: 7. CLD-090

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Document: 003112516953

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CLD-090

Date Filed: 01/20/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3397
___________
YOUNES KABBAJ,
Appellant
v.

AMERICAN SCHOOL OF TANGIER, A Delaware corporation;
BOARD OF TRUSTEES FOR THE AMERICAN SCHOOL OF TANGIER;
STEPHEN E. EASTMAN, Chairman of the Board;
EDWARD M. GABRIEL; MARK SIMPSON
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1-10-cv-00431)
District Judge: Honorable Mark A. Kearney
____________________________________
Submitted for Possible Dismissal Due to a Jurisdictional Defect, Possible Dismissal
Pursuant to 28 U.S.C. § 1915(e)(2)(B), or Possible
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 5, 2017
Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges
(Opinion filed: January 20, 2017)
_________
OPINION*
*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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_________
PER CURIAM
Younes Kabbaj appeals from several orders of the United States District Court for
the District of Delaware. Because no substantial question is presented by the appeal, we
will summarily affirm the District Court’s orders. Third Circuit LAR 27.4 and I.O.P.
10.6.
This case has a long and complicated history, of which the parties are well aware.
Pertinent to the appeal here, the District Court entered an order in April 2012, which,
pursuant to the parties’ written settlement agreement, provided in part that before Kabbaj
could bring a civil action against any of the defined “Releasees” of the agreement he
would have to get written permission from a judge of the District Court. Dkt. #54 (the
“Consent Order”).1 In March 2015, Kabbaj sought permission to file two complaints:
one against the American School of Tangiers, its Board of Trustees, Edward M. Gabriel,
and Stephen E. Eastman (the “AST Defendants”); the other against Mark Simpson and
Brian Albo. The filing also included a request that the District Court revoke the Consent
Order. Dkt. #103. The AST Defendants filed a response in opposition to his motion (and
a motion for sanctions),2 and Kabbaj filed a reply. A few months later, Kabbaj filed two

1

The District Court had authority here to enforce the terms of the settlement. See
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994) (setting forth
requirements to ensure continuing jurisdiction of a district court to enforce parties’
settlement agreement).
Kabbaj has not appealed the order granting in part and denying in part the Defendants’
motion for sanctions. See Dkt. #137.
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rambling motions to stay a decision on his request that the District Court review and/or
revoke the April 2012 Consent Order. Kabbaj alleged that a stay was necessary pending
resolution of his filings in the United States Supreme Court. Dkt. ##121, 122.3 A few
months after that, Kabbaj filed a “motion for change of venue,” asking that all of his civil
and criminal matters be transferred to the United States District Court in Baltimore,
Maryland. Dkt. #123. The District Court ruled on the aforementioned motions in three
orders entered on August 3, 2016. Dkt. ##138, 139, 140. Kabbaj filed a notice of appeal
challenging those three orders. Dkt. #142.
This appeal was listed by the Clerk for possible dismissal due to a jurisdictional
defect.4 The District Court’s order docketed at #140 denied Kabbaj permission to file his
proposed complaint against the AST Defendants; it was thus final to the extent of that
denial. But the order also denied permission to file the proposed complaint against
Simpson and Albo without prejudice to Kabbaj filing a certification with an attached
proposed complaint, no later than August 16, 2016. At the time Kabbaj filed his notice of
appeal, the time to comply with the order had not yet run. And the order docketed at
#139, denying Kabbaj’s motion for a stay, was also denied without prejudice to Kabbaj
establishing that the United States Supreme Court had granted his petition for a writ of

3

The two documents are identical, except that Dkt. #122 has an additional handwritten
paragraph at the end.
4

We only have jurisdiction to review final orders of the District Court. 28 U.S.C.
§ 1291.
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certiorari. However, as explained below, all aspects of each of the orders have since
become appealable.
A decision is final if it ends litigation on the merits and leaves nothing for the
Court to do but execute the judgment. Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62,
68 (1948); see also In re Grand Jury, 705 F.3d 133, 142 (3d Cir. 2012) (en banc)
(“Ordinarily, a final decision will have two effects. First, the decision will fully resolve
all claims presented to the district court. Second, after the decision has been issued, there
will be nothing further for the district court to do.”). If an order dismisses a complaint
without prejudice, we do not have jurisdiction to review it if the deficiency in the
complaint can be cured by the plaintiff, unless the plaintiff declares his intention to stand
on his complaint. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976)
(per curiam). And under Cape May Greene v. Warren, 698 F.2d 179, 184-85 (3d Cir.
1983), and its progeny, a premature notice of appeal may ripen “from a decision that is
not immediately appealable but that becomes appealable before we take action on the
appeal.” Marshall v. Comm’r Pa. Dep’t of Corr., 840 F.3d 92, 96 (3d Cir. 2016).
Applying these precepts, we find that we have jurisdiction to review the orders at
issue here. As to the order at Dkt. #140, Kabbaj filed his notice of appeal before the
District Court’s deadline to file a certification regarding the complaint against Simpson
and Albo. While Kabbaj later filed a certification before the deadline, the certification
essentially indicated his intent to stand on his previously filed proposed complaint against
Simpson and Albo—Kabbaj noted that he had already filed the proposed complaint in the
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United States District Court for the Southern District of New York (“S.D.N.Y.”).5 And
to the extent that his intent to stand on his proposed complaint was ambiguous, the order
at Dkt. #140 in any event has become appealable due to subsequent events: first,
Simpson informed the District Court, see Dkt. #144, that the S.D.N.Y. had dismissed
Kabbaj’s complaint as frivolous; and the District Court stated in a subsequent order that
“there is no further litigation [in the District Court] because Plaintiff failed to comply
with the certification and complaint protocols in our August 3, 2016 Order,” see Dkt.
#147. We thus have jurisdiction to review the order docketed at #140. See Batoff v.
State Farm Ins. Co., 977 F.2d 848, 851 & n.5 (3d Cir. 1992) (order dismissing complaint
with leave to amend may ripen under Cape May Greene doctrine).
We apply plenary review to a district court’s order enforcing a settlement
agreement to the extent the order involves legal conclusions, and review for clear error to
the extent factual findings are involved. See Coltec Indus., Inc. v. Hobgood, 280 F.3d
262, 269 (3d Cir. 2002). The District Court denied Kabbaj’s proposed complaint against
the AST Defendants because it “contain[ed] no allegations pertaining to any wrongdoing
by the AST Defendants.” We agree. While the proposed complaint stated repeatedly that
all of the AST Defendants breached the terms of the settlement agreement, the specific
allegations of wrongdoing involved only Simpson and Albo. We thus will affirm that
aspect of the District Court’s order. As for the District Court’s dismissal of the proposed

5

The proposed complaint filed in the District Court at Dkt. #103-2 is identical to a
complaint at docket #6 in Kabbaj v. Simpson, et al., No. 1:15-cv-00886-RJS, S.D.N.Y.
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complaint against Simpson and Albo, that aspect of the order is now moot. See Chafin v.
Chafin, 133 S. Ct. 1017, 1023 (2013) (case becomes moot if it is impossible for court to
grant any effectual relief to prevailing party). As noted, Kabbaj filed a complaint
identical to the proposed complaint at Dkt. #103-2 in the S.D.N.Y. case, and it has been
dismissed as frivolous. We lack jurisdiction to review the S.D.N.Y. order.6
Although the District Court denied Kabbaj’s motion for a stay without prejudice,
Dkt. #139, the deadline has passed for Kabbaj to provide information establishing that he
had matters pending in the United States Supreme Court. Thus, that order has also
become appealable. See Batoff, 977 F.2d at 851 & n.5. We will affirm that order, as the
District Court clearly did not abuse its discretion in requiring Kabbaj to show that he
actually had matters pending in the Supreme Court before it would consider whether it
was necessary to stay the proceedings before it. See Drippe v. Tobelinski, 604 F.3d 778,
783 (3d Cir. 2010) (district courts generally accorded great deference in matters of case
management). And we also find no abuse of discretion in the Court’s order denying
Kabbaj’s motion for a change of venue.7 See Research Automation, Inc. v. Schrader–
Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir.2010); United States v. Inigo, 925 F.2d
641, 654 (3d Cir. 1991).
6

It does not appear that Kabbaj has filed a notice of appeal to the United States Court of
Appeals for the Second Circuit.
7

We need not consider whether the order denying the motion for a change of venue was
final at the time of the appeal, despite pending matters in the District Court. As explained
above, the District Court later determined that no matters were still pending, see Dkt.
#147; thus, the order denying a change in venue became appealable at the latest when the
District Court entered the order at Dkt. #147.
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For the foregoing reasons, we will affirm the District Court’s orders.

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