Vito Masilotti v. Citigroup Mortgage Inc.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to proceed in forma pauperis (FRAP 24) [999323043-2] Originating case number: 1:13-cv-03360-JFM Copies to all parties and the district court/agency. [999405933]. Mailed to: appellant. [14-1261]

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UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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.
interlocutory,

we

deny

Masilotti’s

Because the appeal is

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

“directing arbitration to proceed[.]”

to

arbitration,

or

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.

2

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Corp.-Ala.

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v.

Randolph,

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531

quotation marks omitted).

U.S.

79,

86

(2000)

(internal

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

interlocutory.

would

not

be

appealable,”

as

it

is

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.
reviewing

court

must

consider

whether

3

an

order

is

final

A
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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