[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-14136

____________________

AMERISURE INSURANCE COMPANY, 

AMERISURE MUTUAL INSURANCE COMPANY, 

Plaintiffs-Counter Defendants-Appellees,

versus

THE AUCHTER COMPANY, et al., 

Defendants,

LANDMARK AMERICAN INSURANCE COMPANY, 

Defendant-Cross Claimant-Appellant.

____________________

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2 Opinion of the Court 22-14136

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:16-cv-00407-BJD-LLL

____________________

Before BRANCH, LUCK, and TJOFLAT, Circuit Judges.

BRANCH, Circuit Judge:

This appeal involves an insurance dispute concerning 

coverage for defects and delays in the construction of an office 

building in Jacksonville, Florida. After reviewing the record and 

with the benefit of oral argument, we conclude that we lack 

jurisdiction and dismiss the appeal.

I. Background

Riverside Avenue Partners, Ltd. (“RAP”) contracted with 

the Auchter Company to build a 13-story office building. Plagued 

by delays and water intrusion, RAP eventually filed a lawsuit in 

Florida state court. RAP sought a declaratory judgment 

establishing Auchter’s liability (as well as that of Arch Insurance 

Company, Auchter’s surety), and sought damages for breach of 

the contract and performance bond. 

Arch filed a counterclaim against RAP, seeking payment of 

the construction contract balance and for approved change orders,

as well as for payment of additional disputed charges and delay 

damages. Arch and Auchter also filed a third-party complaint 

against TSG Industries, Inc., the window subcontractor, and other 

subcontractors as third-party defendants for contractual indemnity 

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22-14136 Opinion of the Court 3

and breach of contract, alleging that RAP’s claims implicated their 

scope of work on subcontracts.

Landmark American Insurance Company, TSG’s insurer,

acknowledged Auchter as an additional insured under TSG’s 

contractually-mandated policy, but ultimately refused to defend 

Auchter. As a result, Amerisure,1 Auchter’s primary insurance 

provider, defended Auchter under a reservation of rights. 

After a trial, the state court entered judgment (1) in favor of 

RAP against Auchter and Arch; (2) in favor of Arch against TSG; 

and (3) in favor of Auchter and Arch against B&B of Duval

Companies, Inc., the subcontractor responsible for curbs, storm 

drainage, and landscaping. 

After the state court judgment was entered, Amerisure filed 

this lawsuit in federal court. Amerisure sued Landmark, Auchter, 

Arch, RAP, TSG, and B&B, seeking a declaration that it owed no 

duty to indemnify Auchter and Arch, and demanding 

reimbursement from Landmark for the cost of defending Auchter. 

The parties asserted numerous crossclaims and counterclaims,2

1 The pleadings refer to Amerisure Insurance Company and Amerisure Mutual 

Insurance Company collectively as “Amerisure,” so we do the same. 

2 Specifically,

• Arch filed a counterclaim against Amerisure, seeking a declaration that

Amerisure had a duty to indemnify Arch as an assignee and/or 

subrogee of Auchter in connection with the underlying state court 

lawsuit; 

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4 Opinion of the Court 22-14136

notably including Landmark’s crossclaim against TSG, seeking a 

declaration that, under TSG’s policy with Landmark, Landmark 

had no duty to defend or to indemnify TSG in connection with the 

underlying state court lawsuit. 

Years later, after numerous summary judgment motions 

and orders, and following a settlement between Arch and

Amerisure, the district court granted Amerisure’s motion for entry 

of final judgment against Landmark—and only Landmark—finding

• Arch, as an assignee and/or subrogee of Auchter, also asserted a 

breach of contract counterclaim against Amerisure for the settlement 

amounts paid in satisfaction of the underlying state court final 

judgment; 

• Arch, as assignee and/or subrogee of Auchter, filed a crossclaim 

against Landmark, seeking a declaration that Arch is entitled to 

indemnity and to damages for breach of contract as a third-party 

beneficiary; 

• Landmark asserted crossclaims against Auchter, Arch, and TSG 

seeking a declaration that Landmark had no duty to defend or to 

indemnify them in connection with the underlying lawsuit; and, 

finally,

• Landmark brought a counterclaim against Amerisure, seeking a 

declaration that it owed no payment to Amerisure relating to the 

underlying state court lawsuit and Auchter’s defense costs.

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22-14136 Opinion of the Court 5

that Amerisure was entitled to attorney’s fees and costs.3 The 

district court purported to enter a final judgment in the case.4

This appeal followed. 

II. Standard of Review

When appropriate, we review a district court’s ruling on a 

motion for summary judgment de novo, viewing the record and 

drawing all reasonable inferences in the light most favorable to the 

non-moving party. Stephens v. Mid-Continent Cas. Co., 749 F.3d 

1318, 1321 (11th Cir. 2014). But we also have an independent 

obligation to determine whether appellate jurisdiction exists in 

each case, regardless of whether the parties raised that issue. Reaves 

v. Sec’y, Fla. Dep’t of Corr., 717 F.3d 886, 905 (11th Cir. 2013).

3 The district court also granted a motion to substitute Amerisure in place of 

Arch following a settlement and assignment of claims and dismissed Arch 

from the action. 

4 Before oral argument, we ordered the parties to file supplemental briefs 

addressing whether the district court had entered a final, appealable order—

including whether all claims against Auchter, TSG, and B&B had been 

resolved. The parties responded jointly, arguing that appellate jurisdiction 

exists under 28 U.S.C. § 1291 because TSG and B&B are merely “nominal 

parties to be bound” since, “in the Underlying Action, they were found to be 

liable to Arch and Auchter[.]” The parties further submit that there are no 

remaining claims against Auchter because it assigned away its rights to Arch, 

who later assigned them to Amerisure, who then took Arch’s place in the 

lawsuit, and then won the judgment it sought in this case. 

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III. Discussion

“Federal appeals courts have jurisdiction over final decisions 

of the district courts.” Supreme Fuels Trading FZE v. Sargeant, 689 

F.3d 1244, 1245 (11th Cir. 2012). The statute conferring that 

jurisdiction provides that “[t]he courts of appeals . . . shall have 

jurisdiction of appeals from all final decisions of the district courts 

of the United States . . . except where a direct review may be had 

in the Supreme Court.” 28 U.S.C. § 1291. “There are [some] 

exceptions to the final judgment rule,” but the parties here “do[ ] 

not argue . . . that any of the exceptions apply.” Supreme Fuels, 689 

F.3d at 1245 n.1 (citing Haney v. City of Cumming, 69 F.3d 1098, 1101 

n.5 (11th Cir. 1995)). 

“A ‘final decision’ generally is one which ends the litigation 

on the merits and leaves nothing for the court to do but execute 

the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). 

“‘[A]n order adjudicating fewer than all the claims in a suit . . . is 

not a final judgment from which an appeal may be taken,’ unless 

‘the district court properly certifies as “final” under Rule 54(b), a 

judgment on fewer than all claims or parties.’” Supreme Fuels, 689 

F.3d at 1246 (alteration in original) (quoting Lloyd Noland Found., 

Inc. v. Tenet Health Care Corp., 483 F.3d 773, 777 (11th Cir. 2007)); 

see also Fed R. Civ. P. 54.

The purported final judgment here does not dispose of all 

claims against all parties, so it is not final. “We have repeatedly 

held that the entry of judgment is not enough to supply 

jurisdiction—even when that judgment is labeled a ‘final’ 

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judgment—where a district court failed to dispose of all claims.” 

Gov’t Emps. Ins. Co. v. Glassco, Inc., 58 F.4th 1338, 1345 (11th Cir. 

2023). Landmark asserted, in its crossclaim against TSG, that it had 

no duty to defend or indemnify TSG in the underlying action. The 

various summary judgment orders do not dispense with that claim. 

The purported final judgment contains no disposition of that claim. 

Id. at 1346 (“Looking to the substance,” there is “no final order 

here.”). And, despite the absence of any disposition on this claim, 

there is no Rule 54(b) order authorizing an appeal. See Supreme 

Fuels, 689 F.3d at 1246. 

Amerisure suggests, in post-argument briefing, that the 

declaratory judgments issued below fully answered any questions 

relating to Landmark’s obligations to TSG. But even if Landmark’s 

duty to indemnify other parties effectively answered the question of 

its duty to indemnify TSG—a premise Amerisure has not 

explained—its reasoning still confuses resolving abstract issues with 

tangible claims. See id. (An order is not a final judgment if it 

“adjudicat[es] fewer than all the claims in a suit[.]” (emphasis 

added)).5 Thus, the claims against TSG remain pending.

5 Amerisure further contends that any deficiency was cured at oral argument 

in this court, on appeal, when Landmark represented that it would abandon 

its claim against TSG. We disagree. We have never held that a promise at 

oral argument to abandon a claim can finalize an order that was not final when 

the appeal was taken. But even if we could credit Landmark’s purported 

abandonment of its claim against TSG at oral argument, see Tiernan v. Devoe, 

923 F.2d 1024, 1031 (3d Cir. 1991) (concluding that the court had jurisdiction 

following the plaintiffs’ intention to renounce any further action against a 

defendant, even though “at the time [the] appeal was filed, jurisdiction under 

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8 Opinion of the Court 22-14136

“With claims outstanding, we lack jurisdiction” and must 

dismiss. See Id. at 1246.6

APPEAL DISMISSED.

28 U.S.C. § 1291 was lacking”), “[w]e are not bound by [Landmark’s]

concession, and we [would] decline to accept it.” United States v. Colston, 4 

F.4th 1179, 1187 (11th Cir. 2021). “[I]t is well settled in this Circuit that parties 

to a suit cannot agree to grant this Court appellate jurisdiction.” State Treasurer 

of Mich. v. Barry, 168 F.3d 8, 13 (11th Cir. 1999) (citing Constr. Aggregates, Ltd. v. 

Forest Commodities Corp., 147 F.3d 1334, 1336 (11th Cir.1998)). 

And, to the extent that the parties are suggesting that Landmark somehow 

abandoned its claim against TSG below, “abandonment” is not the way to 

dismiss a party from an action. Federal Rule of Civil Procedure 41(a) is the 

proper vehicle to dismiss “all of [a plaintiff’s] claims against a particular 

defendant.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1106 (11th Cir. 

2004); Rosell v. VMSB, LLC, 67 F.4th 1141, 1144 (11th Cir. 2023). The plaintiff 

can do so in one of three ways: (1) by filing “a notice of dismissal before the 

opposing party serves either an answer or a motion for summary judgment,” 

(2) by filing “a stipulation of dismissal signed by all parties who have 

appeared,” or (3) by obtaining a court order. Fed. R. Civ. P. 41(a). Landmark 

did not do any of these things.

6 Though Landmark’s pending claim against TSG suffices to resolve this case, 

we note that there is also no disposition on the record as to Auchter and B&B. 

The Clerk entered a default against Auchter and TSG, but not B&B, and 

default judgment was not entered against any of them. Arango v. Guzman

Travel Advisors, 761 F.2d 1527, 1530–31 (11th Cir. 1985) (explaining that a 

clerk’s entry of default is not a final judgment and is not the same as the entry 

of a default judgment). The parties suggest that B&B is merely a “nominal 

part[y] to be bound,” and that there are no substantive claims pending against 

Auchter, see supra, note 4. We express no opinion on the merits of those 

arguments, but instead commend them to the district court’s attention on 

remand.

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