Solis v. Amtren Corporation et al
JUDGMENT directing that, in accordance with the 13 memorandum opinion entered this date, it is the ORDER, JUDGMENT, and DECREE of the court as follows: (1) The 10 motion for default judgment is granted; (2) Judgment is entered in favor of plainti ff Labor Secretary and against defendants Amtren Corporation, Amtren Corporation Profit Sharing Plan, and Charles Kirk Lamberth; (3) Defendants Lamberth and Amtren Corporation, their agents, servants, employees, and all persons in active concert or p articipation with them are permanently ENJOINED and RESTRAINED from violating the provisions of Title I of Employee Retirement Insurance Security Act of 1964 (ERISA), 29 U.S.C. § 1001 et seq; (4) Defendants Lambert and Amtren Corporation are her eby removed as fiduciary to Amtren Corporation Profit Sharing Plan and are permanently ENJOINED and RESTRAINED from acting as a fiduciary, trustee, agent, or representative in any capacity to any employee benefit plan, as defined by ERISA; (5) Any pa rticipant interest defendant Lamberth may have in any existing or future assets of defendant Amtren Corporation Profit Sharing Plan shall be applied as an offset against the amounts that plaintiff Secretary of Labor has alleged are due to defendant A mtren Corporation Profit Sharing Plan, as authorized by ERISA § 206(d)(4), as further set out; (6) Defendants Lamberth and Amtren Corporation are to restore $114,255.03 to the Sharing Plan, representing the portion of the prohibited loan wh ich came from the Sharing Plan accounts of non-fiduciary participants, plus lost opportunity costs, as further set out; (7) Jeanne B. Bryant of Receivership Management, Inc., 783 Old Hickory Blvd., Suite 255, Brentwood, Tennessee 37027, is appointed as successor fiduciary for the SharingPlan, as further set out; (8) Each party shall bear its own attorney fees and expenses in connection with this action, and the defendants waive any rights pursuant to the Equal Access to Justice; (9) The court ma intains jurisdiction over this matter only for the purposes of enforcing this final judgment and accompanying opinion; (10) Nothing in this judgment is binding on any government agency other than the United States Department of Labor; further ORDERED that costs are taxed to the defendants Lambert and Amtren Corporation, for which execution may issue; the clerk of the court is DIRECTED to enter this document on the civil docket as a final judgment pursuant to Rule 58 of the FRCP. Signed by Honorable Judge Myron H. Thompson on 12/6/11. (Attachments: # 1 Civil Appeals Checklist)(scn, )
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov
Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00.
CIVIL APPEALS JURISDICTION CHECKLIST
Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by
Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and
judgments of district courts, or final orders of bankruptcy courts which have been
appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are
appealable. A final decision is one that “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Pitney Bowes, Inc. v. Mestre,
701 F.2d 1 365, 1 368 ( 11th Ci r. 1 983). A magistrate judge’s report and
recommendation is not final and appealable until judgment thereon is entered by a
district court judge. 28 U.S.C. § 636(c).
In cases involving multiple parties or multiple claims, a judgment as to fewer than
all parties or all claims is not a final, appealable decision unless the district court has
certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v.
Bishop, 732 F.2d 885, 885- 86 (11th Cir. 1984). A judg ment which resolves all
issues except matters, such as attorneys’ fees and costs, that are collateral to the
merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486
U.S.196, 201, 108 S.Ct. 1717, 1721-22, 100 L .Ed.2d 178 (1988); LaChance v.
Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders
“granting, continuing, modifying, refusing or dissolving injunctions or refusing to
dissolve or modify injunctions . . .” and from “[i]nterlocutory decrees . . .
determining the rights and liabilities of parties to admiralty cases in which appeals
from final decrees are allowed.” Interlocutory appeals from orders denying temporary
restraining orders are not permitted.
Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification
specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to
appeal is filed in the Court of Appeals. The district court’s denial of a motion for
certification is not itself appealable.
Appeals pursuant to judicially created exceptions to the finality rule: Limited
exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial
Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949);
Atlantic Fed. Sav. & Loan Ass’n v. Blythe Eastman Paine Webber, Inc., 890 F.2d
371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157,
85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional.
Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a)
and (c) set the following time limits:
Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set
forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the
entry of the order or judgment appealed from. However, if the United States or an
officer or agency thereof is a party, the notice of appeal must be filed in the district
court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND
FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF
THE APPEAL PERIOD – no additional days are provided for mailing. Special
filing provisions for inmates are discussed below.
Fed.R.App.P. 4(a)(3): “If one party timely files a notice of appeal, any other party
may file a notice of appeal within 14 days after the date when the first notice was
filed, or within the time otherwise prescribed by this Rule 4(a), whichever period
Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under
the Federal Rules of Civil Procedure of a type specified in this rule, the time for
appeal for all parties runs from the date of entry of the order disposing of the last
such timely filed motion.
Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district
court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may
be extended if a motion for an extension is filed within 30 days after expiration of the
time otherwise provided to file a notice of appeal, upon a showing of excusable
neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district
court finds upon motion that a party did not timely receive notice of the entry of the
judgment or order, and that no party would be prejudiced by an extension.
Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in
either a civil case or a criminal case, the notice of appeal is timely if it is deposited in
the institution’s internal mail system on or before the last day for filing. Timely filing
may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized
statement, either of which must set forth the date of deposit and state that first-class
postage has been prepaid.
Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of
Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of
appeal must be signed by the appellant.
Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the
filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule
on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
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