IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

VFS LEASING CO., )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO. 3:06cv638-SRW

) (WO)

G. F. KELLY, INC. d/b/a KELLY )

TRUCKING, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff VFS Leasing Co. (“VFS”) brings claims against defendant G.F. Kelly, Inc.

d/b/a/ Kelly Trucking (“GFK”) arising from GFK’s default of its obligations pursuant to two

agreements for the lease of a number of tractors. Plaintiff also sues defendant Guy Kelly for

breach of a contract guaranteeing GFK’s obligations under the lease agreements.. Plaintiff

demands judgment from defendants in the amount of $318,841.57, plus interest, costs and

attorneys’ fees. This action is presently before the court on plaintiff’s motion for summary

judgment. Upon consideration of the motion, the court concludes that it is due to be

GRANTED as to liability and DENIED as to the amount of damages.

THE SUMMARY JUDGMENT STANDARD

A party seeking summary judgment bears the initial burden of demonstrating to the

court the basis for its motion, and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions that it believes show an absence of any genuine

issue of material fact. Hairston v. Gainesville Publishing Co., 9 F.3d 913 (11th Cir. 1993).

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 For summary judgment purposes, an issue of fact is “material” if it is a legal element

of the claim, as identified by the substantive law governing the case, such that its presence

or absence might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). An issue of fact is “genuine” if the record taken as a whole could lead a

rational trier of fact to find for the nonmoving party. Matsushita Electrical Industrial

Company v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court must view the

evidence, and all factual inferences properly drawn from the evidence, in the light most

favorable to the nonmoving party. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.

1992); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (11th Cir. 1987). It is improper for

this court to weigh conflicting evidence or make credibility determinations; instead, “the

evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn

in his favor.” Anderson, 477 U.S. at 255. Where a reasonable fact finder may “draw more

than one inference from the facts, and that inference creates a genuine issue of material fact,

then the court should refuse to grant summary judgment.” Barfield v. Brierton, 883 F.2d

923, 933-34 (11th Cir. 1989) (citation omitted).

Where the moving party will bear the burden of proof at trial,

that party must show affirmatively the absence of a genuine issue of material

fact: it must support its motion with credible evidence . . . that would entitle

it to summary judgment unless the non-moving party, in response, come[s]

forward with significant, probative evidence demonstrating the existence of a

triable issue of fact.

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993)(quoting United States v.

Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)(en banc)). 

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 GFK entered into the agreements with Volvo Truck Finance North America Inc. VFS is

the successor in interest to Volvo Commercial Finance LLC The Americas, which was the successor

in interest to Volvo Commercial Finance Inc. The Americas, formerly known as Volvo Truck

Finance North America Inc. (Craver aff., ¶ 2). 

3

DISCUSSION

Background

The twenty-one tractors at issue in this case were leased pursuant to two master lease

agreements entered into between the parties1

 on February 11, 1997 and December 10, 1997,

and are identified in various schedules to those leases. After GFK failed to provide insurance

information and to make payments required by the leases, VFS repossessed the tractors and

sold them. (Craver aff., ¶¶ 17-19). VFS now claims entitlement to deficiencies remaining

on the leases after the sales. 

VFS seeks recovery pursuant to the remedies provision of the leases, which states, in

pertinent part:

Whenever an Event of Default has occurred under this Agreement, Lessor will

have all the rights and remedies provided by this Agreement, the UCC and

other applicable law. Lessor’s rights and remedies are cumulative. At the

option of Lessor, with or without notice, Lessor’s rights to the Vehicles may

be canceled and all rental payments and other amounts owed under this

Agreement will be immediately due and payable in full, together with all costs

and expenses, including attorneys’ fees, incurred by Lessor in the enforcement

of its rights and remedies under this Lease. Lessor may take possession of any

Vehicles (with or without legal process) and, to the extent permitted by law,

may enter any locked or unlocked premises for that purpose. Lessor may, at

its option, sell, lease, or otherwise dispose of any or all of the Vehicles after

it obtains possession. Upon such sale, Lessee will pay to Lessor immediately,

as liquidated damages for loss of bargain and not as a penalty, the amount by

which the Stipulated Loss Value exceeds the net sales proceeds of such

Vehicles in addition to all other amounts due. 

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 The remainder of the provision deals with rights and remedies not at issue in this case,

including the amount due when the Lessor does not take possession of the vehicles.

4

(Exhibits A and B to Craver aff., ¶ 17; see also Exhibit E (plaintiff’s deficiency

calculations)).2

 The agreement requires the Lessee to pay repair and reconditioning costs for

repossessed vehicles which do not meet certain specifications. (Master leases, ¶ 12). 

GFK concedes that it is in default and that it owes some amount of money to VFS, but

it disputes the amount owed under the leases. (Defendants’ brief, Doc. # 20, p. 2).

Specifically, defendants contend that the fees and costs VFS seeks to charge for the

repossession, inspection, detailing and repair are excessive, and that the amount realized by

VFS from the sale of the tractors is less than it would have been had VFS conducted the sales

in a commercially reasonable manner.

Plaintiff’s Motion to Strike

In opposition to the motion for summary judgment, defendants have filed the

affidavits of defendant Guy Kelly and Charles Lance. In his affidavit, Kelly, the President

of GFK, states his opinion that plaintiff is attempting to charge excessive amounts for

repossession expense, inspection fees and detailing fees, and maintains that VFS did not sell

the trucks following repossession in a commercially reasonable manner and in keeping with

the standard in the industry. Lance was employed by GFK and was involved in inspecting

and repairing the trucks at issue. His affidavit states that the estimate of reconditioning and

repair expenses in the appraisal reports for the vehicles were excessive and, since they were

provided to prospective purchasers, would logically have resulted in lower bids. He further

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maintains that the charges for detailing eight trucks were unreasonable and excessive.

Plaintiff moves to strike these affidavits, arguing that defendants have not

demonstrated that Kelly and Lance are sufficiently qualified to testify as experts in the area

of the sale of used commercial tractors in the wholesale market after repossession, and that

their opinions are based on speculation and conjecture. Defendants respond that the

affidavits “show on their face that the affiants are qualified to give the opinions contained

therein,” and that “[a]ny evidence presented in the Motion to Strike goes to the weight of the

testimony and not the admissibility.” (Doc. # 38).

“On a motion for summary judgment, disputed issues of fact are resolved against the

moving party[.] But the question of admissibility of expert testimony is not such an issue of

fact[.]” General Elec. Co. v. Joiner , 522 U.S. 136 (1997). In determining the admissibility

of expert testimony under Rule 702, the court considers whether: “‘(1) the expert is qualified

to testify competently regarding the matters he intends to address; (2) the methodology by

which the expert reaches his conclusions is sufficiently reliable as determined by the sort of

inquiry mandated in Daubert [v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)];

and (3) the testimony assists the trier of fact, through the application of scientific, technical,

or specialized expertise, to understand the evidence or to determine a fact in issue.’” United

States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)(quoting City of Tuscaloosa v.

Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). “The proponent of expert

testimony always bears ‘the burden to show that his expert is “qualified to testify

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competently regarding the matters he intend[ed] to address; [] the methodology by which the

expert reach[ed] his conclusions is sufficiently reliable; and [] the testimony assists the trier

of fact.”’ The burden of establishing qualification, reliability, and helpfulness rests on the

proponent of the expert opinion, whether the proponent is the plaintiff or the defendant in a

civil suit, or the government or the accused in a criminal case.” Frazier, 387 F.3d at 1260

(citations omitted)(alterations in original).

In his deposition, Kelly testified that he has no knowledge of the standard charges of

a repossession company, the basis of the charges by the particular repossession company

used by VFS in this case, or whether it charged other customers the same or a similar fee.

He further testified that he does not know the basis of the inspection fee charges or the

amount the inspection company charges its other customers, that he does not know of any

other companies that perform inspections in connection with repossessions and sales, and that

he has no experience with inspection fees in connection with repossessions. He has used an

outside vendor to wash and clean the exterior of his trucks, but the vendor did not clean the

inside of the trucks. He does not know what was involved in the detailing of the eight trucks

for which there were detailing charges. His experience in selling tractors involved the sale

of two trucks to a dealer within the year before his deposition and the sale of tractors at

auction within the six months preceding the deposition. He has not ever purchased a tractor

at any type of auction. (Kelly depo., pp. 18-20, 26, 63-66, 72-74). While Kelly has over

twenty years of experience in the trucking industry, his affidavit and deposition testimony

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do not demonstrate that he is qualified to testify about industry standards regarding

repossession, reconditioning and sale of used tractors. 

Even assuming that defendants have demonstrated that Kelly is qualified by

experience to render the opinions in his affidavit, defendants have not met their burden of

establishing the admissibility of those opinions. “‘[I]f the witness is relying solely or

primarily on experience, then the witness must explain how that experience leads to the

conclusion reached, why that experience is a sufficient basis for the opinion, and how that

experience is reliably applied to the facts. The trial court’s gatekeeping function requires

more than simply “taking the expert’s word for it.”’” Id. at 1261(quoting Committee Note

to 2000 Amendments of Rule 702). “[I]t remains a basic foundation for admissibility that

‘[p]roposed [expert] testimony must be supported by appropriate validation – i.e., “good

grounds,” based on what is known.’” Id. (quoting Daubert, 509 U.S. at 590). “An expert’s

opinion that lacks any credible support does not create an issue of fact.” American Key

Corp. v. Cole Nat. Corp., 762 F.2d 1569 (11th Cir. 1985)(citation omitted). 

Charles Lance states that he has over thirty years of experience in estimating and

performing repairs on over-the-road trucks and that he is familiar with the costs of labor and

materials for all types of mechanical and body repairs. (Lance aff., ¶ 2). He states that “[i]n

the selling of used trucks, it is industry standard that the truck should be in wholesale

condition at the time it is sold, nothing more or nothing less” and expresses his opinion that

the repairs shown on appraisal reports provided to VFS “would result in the trucks being in

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 In his deposition, Lance testified that the standard to which he refers in paragraph 5 is the

“Kelly Trucking standards,” i.e., “it would be repaired to what we would do it for if we had it at the

shop.” (Lance depo., pp. 39-41).

8

more than wholesale condition which is not in keeping with the standard.” (Id.,¶ 5).3

 Lance

also states that the $500 detailing charge for the eight trucks is excessive and that “[i]n 2005

a reasonable charge for detailing a used truck in advance of placing it on the market for resale

would be $125.00.” (Id., ¶ 8). Lance further states that “[h]ad reasonable and accurate

estimates of the costs of . . . reconditioning been provided [to prospective purchasers] bids

would have been higher and aligned with the actual value of the trucks.” (Id., ¶ 7). Lance

testified that he has no experience in buying or selling vehicles at auction. (Lance depo., p.

41). Lance’s description of his experience with repairing over-the-road trucks does not

demonstrate that he is qualified to testify regarding industry standards as to the sale of used

trucks, acceptable charges for detailing such trucks in preparation for sale, or the valuation

of used trucks. 

In his affidavit, Lance further testifies as follows:

[T]he estimates of the costs of labor and materials to make the listed repairs are

also greatly excessive. I have evaluated the costs of these repairs based on my

knowledge and experience, and have determined the actual costs of the same

repairs. Attached is a chart comparing the reconditioning expense contained

in the appraisal report (third column) with my opinion of the actual costs of

these repairs (fourth column). The chart also shows the difference between the

Volvo estimate and what, in my opinion, are the actual costs of these repairs,

including all necessary parts and labor. The total difference is more than

$50,000.00.

(Lance aff., ¶ 6). However, in his deposition testimony, Lance makes clear that his estimate

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is based on what it would have cost for him, as an employee of GFK, to perform the repair

in house. (Lance depo., p. 22-23). He does not state whether it is customary for appraisal

reports to include estimates for reconditioning based on costs to repair a vehicle in house or

whether it is commercially reasonable for a financing company to rely on such reports, nor

has plaintiff demonstrated that Lance would be qualified to render opinions on these issues.

Thus, plaintiff has not demonstrated that Lance’s testimony would “assist[] the trier of fact,

through the application of scientific, technical or specialized expertise, to understand the

evidence or to determine a fact in issue.” Frazier, supra, 387 F.3d at 1260. Additionally, as

noted above, “‘[i]f the witness is relying solely or primarily on experience, then the witness

must explain how that experience leads to the conclusion reached, why that experience is a

sufficient basis for the opinion, and how that experience is reliably applied to the facts.” Id.,

at 1261. Lance’s affidavit fails to explain why his experience performing in house repairs

for GFK is a sufficient basis for his opinion that the reconditioning estimates provided in the

appraisal report – which may or may not be based on the cost of repairing the vehicles in

house – are “greatly excessive.”

Accordingly, plaintiff’s motion to strike the affidavits of Kelly and Lance is due to

be granted. However, the determination that defendants’ affidavits are inadmissible does not

end the court’s inquiry. As defendants argue, plaintiff filed no evidence with its motion

regarding whether the sales and charged expenses were commercially reasonable. Whether

plaintiff is entitled to judgment in the amount it seeks depends upon whether the sales and

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 The choice-of-law provision of the master leases and the guaranty state that they are

governed by North Carolina law. (Master leases, ¶ 23; Guaranty). 

10

expenses are required to be reasonable and, if so, which party bears the burden of proof on

that issue.

Requirement for Commercial Reasonableness

The equipment lease at issue is governed by Article 2A of the Uniform Commercial

Code, as adopted in North Carolina.4

 The statute pertaining to the lessor’s damages in the

event of a breach by the lessee defers to the agreement of the parties “with respect to

damages liquidated in the lease agreement.” N.C.G.S.A. § 25-2A-528(1). Damages payable

upon default “may be liquidated in the lease agreement but only at an amount or by a formula

that is reasonable in light of the then-anticipated harm caused by the default or other act or

omission.” N.C.G.S.A. § 25-2A-504. The statute does not specify that a lessor’s sale of

repossessed equipment must be commercially reasonable, nor does the parties’ agreement

expressly include this requirement. As noted above, the liquidated damage formula is

established by the agreement as “the amount by which the Stipulated Loss Value exceeds the

net sales proceeds of such Vehicles in addition to all other amounts due.” Upon review of

the governing statutory and case law, the court concludes that this provision is enforceable

only if the formula is reasonable, and that the formula is reasonable only if it is interpreted

to include a requirement that “net sales proceeds” be in an amount which would be realized

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 Defendants do not contend that the provision is unenforceable. Rather, they dispute

plaintiff’s calculation of damages pursuant to the provision. 

11

by a commercially reasonable sale.5

In reaching this conclusion the court is guided by rules of contract interpretation,

under which the court is required to interpret a contract so as to make the agreement lawful

and effective. See Gilmore v. Garner, 157 N.C. App. 664, 580 S.E.2d 15 (N.C. App.

2003)(“‘Intention or meaning in a contract may be manifested or conveyed either expressly

or impliedly, and it is fundamental that that which is plainly or necessarily implied in the

language of a contract is as much a part of it as that which is expressed. If it can be plainly

seen from all the provisions of the instrument taken together that the obligation in question

was within the contemplation of the parties when making their contract or is necessary to

carry their intention into effect, the law will imply the obligation and enforce it.’”)(quoting

Lane v. Scarborough, 284 N.C. 407, 410-11, 200 S.E.2d 622, 625 (1973))(emphasis added).

Additionally, the parties’ agreement is subject to a statutory duty of good faith (see

N.C.G.S.A. 25-1-304) which is defined as “honesty in fact and the observance of reasonable

commercial standards of fair dealing” (N.C.G.S.A. § 25-1-201(20)). See L.C. Williams Oil

Co., Inc. v. Exxon Corp., 625 F. Supp. 477 (M.D.N.C. 1985)(“The purpose of the [UCC’s]

good faith obligation is to determine the terms to be implied in the contract when the terms

are not expressly provided.”). The statutory good faith obligation may not be disclaimed by

contract. (N.C.G.S.A. § 25-1-302(b); see also UCC Comment to N.C.G.S.A. § 25-2A-101).

Further, the court notes – by way of analogy – that the statutory provision for incidental

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damages to a lessor include only “commercially reasonable” charges and expenses incurred

in connection with the disposition of goods (N.C.G.S.A. § 25-2A-530). Also, lessors who

choose to enter substitute leases may use the terms of such leases to prove damages only if

the new lease agreement is made in a “commercially reasonable” manner and, otherwise,

must prove damages by resort to “market rent” (N.C.G.S.A. § 25-2A-527(2),(3); § 25-2A528). 

Accordingly, the court concludes that the parties’ contractual remedies provision

measures plaintiff’s damage by reference to commercially reasonable expenses and the net

sales proceeds realized from the commercially reasonable sale of the repossessed tractors.

Burden of Proof

As noted above, plaintiff filed no evidence with its motion regarding whether the sales

and charged expenses were commercially reasonable. Defendants contend that plaintiff bears

the burden of establishing commercial reasonableness and, thus, that it has failed to establish

its entitlement to summary judgment. (Doc. # 20, p. 7). Plaintiff argues that the issue of

whether the sales were commercially reasonable arises only in the context of the affirmative

defense of failure to mitigate. (Doc. # 27). 

Plaintiff does not seek actual damages in this case but, instead, seeks damages

pursuant to the liquidated damages clause. As discussed above, this clause includes an

implied term of commercial reasonableness. The parties have cited no binding authority on

the issue of the burden of proof on this implied term, and the court has found none. In cases

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 Plaintiff argues that it is not “technically appropriate to apply Art. 9 in this case,” that the

“Article 9 ‘commercially reasonable’ requirements do not apply verbatim where the transaction at

issue does not involve an ownership interest in the property,” and that defendants had no equity

interest in the leased tractors. (Doc. # 27, p. 2 n. 2). The court agrees that Article 9, which pertains

to secured transactions, is not applicable to this case and refers to the Article 9 provision and case

law only by analogy. 

7

 The Article 2 situation is more closely analogous to Article 2A leases than is a secured

creditor transaction.

13

involving the analogous statutory remedies provision pertaining to secured transactions

under Article 9 of the UCC (see N.C.G.S.A. § 25-9-610 (formerly § 9-504(1), (3)), a secured

creditor seeking a deficiency judgment bears the burden of establishing that its sale of

collateral was conducted in a commercially reasonable manner. North Carolina National

Bank v. Burnette, 297 N.C. 524, 529, 256 S.E.2d 388, 391 (1979).6 Likewise, in the context

of a seller’s resale of goods upon default by a buyer under Article 2 (see N.C.G.S.A. § 25-2-

706(1)),7

 the seller seeking to recover damages measured by the difference between the

resale price and the contract price bears the burden of proving that the sale was conducted

in a commercially reasonable manner. Larsen Leasing, Inc. v. Thiele, Inc., 749 F. Supp. 821

(W.D. Mich. 1990)(applying Michigan law); Cook Composites, Inc. v. Westlake Styrene

Corporation, 15 S.W.3d 124, 137 (Tex. App. - Houston (14th Dist.) 2000).

In resolving the issue of the burden of proving commercial reasonableness under

UCC section 2-706, the Cook Composites court reasoned:

Characterizing the requirements set forth in section 2.706 as elements of a

seller’s prima facie case for recovery of damages is also consistent with the

way Texas courts have traditionally distinguished affirmative defenses from

the elements of a prima facie case. Generally speaking, affirmative defenses

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 Plaintiff alleges in its complaint that the tractors were “sold in a commercially reasonable

manner.” (Complaint, ¶ 24). In their answer, defendants denied this allegation.

14

are any propositions that a defendant may interpose to defeat the plaintiff’s

prima facie case. See W.R. Grace Co. v. Scotch Corp., Inc., 753 S.W.2d 743,

746 (Tex.App.-Austin 1988, writ denied). “They do not rebut any factual

propositions asserted in the plaintiff's case, but open the way for the defendant

to adduce evidence establishing an independent reason why the plaintiff may

not recover.” Id. “An affirmative defense usually accepts the existence at one

time or another of a prima facie case but alleges propositions which, if

established, would defeat the claim.” Cooper v. Scott Irr. Const., Inc., 838

S.W.2d 743, 747 (Tex.App.-El Paso 1992, no writ) (dissenting opinion). By

claiming that Westlake failed to give presale notice and failed to act in a

commercially reasonable manner, CCP is not seeking to establish independent

reasons why Westlake should not recover damages under section 2.706;

rather, these allegations tend to rebut the factual propositions necessary for

Westlake to recover under section 2.706.

Finally, in making the determination, we note that the seller is in the best

position to know what affirmative steps were taken to ensure the sale was

conducted in a commercially reasonable manner and whether notice of intent

to resell was given to the buyer. It would make no sense to impose the burden

on the buyer to prove a negative as an affirmative defense, i.e., to prove the

seller’s failure to satisfy the elements of section 2.706. Considering the plain

language of the statute and other UCC states’ characterizations, and applying

traditional notions of Texas jurisprudence, we find that presale notice and

commercial reasonableness are elements of a prima facie claim for damages

and not affirmative defenses.

Cook Composites, supra, 15 S.W.3d at 137 -138; see also Wallace v. Haserick, 105 N.C.

App. 315, 412 S.E.2d 694, 695 (N.C.App. 1992)(“Generally, a defense which contests one

or more of the material allegations of the complaint is not an affirmative defense since it

involves an element of the plaintiff’s prima facie case.”).8

 

With regard to the burden of proof, there is no meaningful distinction between an

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 With its reply brief, Plaintiff filed evidence directed to the issue of commercial

reasonableness. In response to defendants’ motion to strike this evidence, plaintiff argued that the

evidence was filed in rebuttal to defendants’ expert witness testimony. The court has concluded,

however, that plaintiff was required to establish commercial reasonableness to establish its claim

for damages. Because the additional evidence was submitted with the reply, defendants did not have

the requisite opportunity to respond to the evidence on the present motion. Additionally, plaintiff

does not dispute defendants’ representation that neither Cox nor Weachter were identified as experts

by the deadline established in the court’s scheduling order. Accordingly, defendants’ motion to

strike the declarations (Doc. # 32) is due to be granted, and the court will not consider the additional

evidence filed with plaintiff’s reply brief. 

15

element expressly set forth in a statutory remedies provision and an element necessarily

implied in an agreed remedies provision. Accordingly, in order to recover the damages

specified in the liquidated damages clause, plaintiff bears the burden of establishing that the

“net sales proceeds” were realized from commercially reasonable sales and expenses. In

support of its motion, plaintiff filed no evidence relating to this element of its claim for

damages. Since plaintiff has affirmatively failed to establish its entitlement to relief, the

motion for summary judgment is due to be denied as to plaintiff’s claim for damages.9

Kelly’s Liability

Plaintiff has introduced evidence that defendant Kelly executed continuing guaranty

agreements with regard to the obligations incurred by GFK to Volvo Commercial Finance

and that he received notice of GFK’s default. (Exhibit C, F to Craver aff.). Kelly does not

specifically concede his liability under the guaranty agreement. However, he has failed to

introduce any evidence demonstrating the existence of any genuine issue of material fact

regarding the enforceability of the guaranty contract and the evidence establishes that GFK

was in default of its obligations to VFS. “A guarantor’s liability arises at the time of the

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default of the principal debtor on the obligation or obligations which the guaranty covers.

Gillespie v. DeWitt, 53 N.C. App. 252, 280 S.E.2d 7367 (N.C. App. 1981)(citation omitted).

Accordingly, VFS is entitled to summary judgment as to Kelly’s liability.

CONCLUSION

For the foregoing reasons, it is ORDERED that:

(1) plaintiff’s motion to strike the affidavits of Kelly and Lance (Doc. # 29) is

GRANTED;

(2) defendants’ motion to strike the declarations of Cox and Weachter (Doc. # 32)

is GRANTED;

(3) defendants’ motion to strike evidentiary submission (Doc. # 31) is GRANTED;

(4) plaintiff’s motion for leave of court to modify scheduling order (Doc. # 35) is

DENIED; and

(5) plaintiff’s motion for summary judgment (Doc. # 12) is GRANTED as to the

liability of defendants, and DENIED as to damages.

DONE, this 13th day of July, 2007.

/s/ Susan Russ Walker 

SUSAN RUSS WALKER

UNITED STATES MAGISTRATE JUDGE

Case 3:06-cv-00638-SRW Document 46 Filed 07/13/2007 Page 16 of 16
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(d) 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.

(e) 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).

 Rev.: 4/04

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2. 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:

(a) 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.

(b) 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

ends later.”

(c) 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.

(d) 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.

(e) 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.

3. 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.

4. 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).

Case 3:06-cv-00638-SRW Document 46-2 Filed 07/13/2007 Page 2 of 2