NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 17

- 3391

_____________ DOMINION DEVELOPMENT GROUP, LLC

v. CINDY BEYERLEIN; BOENNING & SCATTERGOOD

Dominion Development Group, LLC; Dominion Development Group Derivatively on behalf of Flagstaff Resort Land Holdings, Ltd., Appellant s

______________ Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 3

- 15

- cv
- 0096 1 ) District Judge: Hon

. Malachy E

. Mannion

______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

December 11 , 2018

______________ Before: SMITH, Chief Judge , McKEE and FISHER , Circuit Judges

.

(Opinion filed: May 24, 2019 )

_______________________ OPINION 

_______________________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

M c KEE, Circuit Judge. Appellant Dominion Development Group, LLC appeal s the District Court’ s order granting Appellees ’ motion to enforce a settlement

. Dominion argues the District Court
erred in two ways: (1) by binding it to the settlement and (2) by enforcing the settlement
when it lacked subject matter jurisdiction . Dominion a lso a rgues that the underlying case
should be reinstated

. Because the District Court lacked subject matter jurisdiction to
enforce the settlement , we wi ll vacate and remand

. I. Through its principal, Larry Masi, Dominion sued Appellees alleging improper interference with its ability to secure financing for a business development project. Discovery ensued for two years and a settlement conference was ev entually held in the Middle District of Pennsylvania on October 21, 2016

. Masi appeared on behalf of Dominion, along with his attorneys

. Appellees Cindy Beyerlein and Boenning & Scattergood were also represented by counsel at the conference.
After over four hours of discussion and settlement negotiations, the parties oral ly agreed to settle the action, and t he District C ourt dismissed the case subject to possible reinstatement within 60 days upon good cause shown by any party. The Court’s order was date d October 21, 2016 and read in full: After a lengthy settlement conference, the parties have come to an agreement to resolve and settle. IT IS ORDERED THAT this action be dismissed without costs and with prejudice to the right of either party upon good ca use shown, to apply for reinstatement of the action within sixty (60) days of the date of this order if settlement has not been consummated. 1

1 Joint App

. Dismissal Order of October 21, 2016, at 74 [h ereinafter October 21 Order ]

.3

On December 21, 2016, Boenning filed a motion to enforce the settlement reached
on October 21 st and impose sanct ions. Dominion filed a brief in opposition in which it argued that counsel did not have express authority to settle the matter

. T he Court held a hearing on the motion on July 17, 2017.
In t he District Court , neither the parties nor the Court raised the issue of the Court’s
sub ject matter jur isdiction to hear the motion. Accordingly, jurisdiction was never
addressed. Nevertheless, in its September 28, 2017 o rder, the Court grant ed Boenning ’s
motion to enforce the settlement and denied the request f or sanctions against Dominion,
Masi , and his current counsel. That o rder is the basis of t his appeal. 2
I I. We review the District Court’s subject matter jurisdiction de novo. 3 The Supreme
Court has held that when a “ district court dismisses an action pursuant to a settlement agreement, that court lacks jurisdiction to enforce that settlement agreement unless the obligation of the parties to comply with the settlement agreement is made part of the dismissal order or there is an independent basis for exe rcising jurisdiction.” 4 Neither ground for jurisdiction exists here.
The District Court’s October 21, 2016 dismissal order did not make the terms of the settlement agreement part of the order and therefore , the Court did not have

2 We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. 3 In re Phar

- Mor, Inc. , 172 F.3d 270, 273 (3d Cir. 1999); Shaffer v. GTE North, Inc. , 284 F.3d 500, 502 (3d Cir. 2002). 4 Phar

- Mor , 172 F.3d at 274 (citing Kok konen v. Guardian Life Ins. Co. of America , 511 U.S. 375, 381

– 82 (1994) )

.4

jurisdiction to later enforce the agreement. 5 Additionally, there is no independent basis for exercising jurisdiction. Boenning argues that the District Court “retained subject matter jurisdiction to enforce the settlement agreement” through its factual finding that the par ties agreed to
settle the case. 6 The dismissal order, however, did not contain a “ separate provision (such as a provision ‘ ret aining jurisdiction’ over t he settlement agreement)” and a factual finding is not a pr ovision retaining jurisdiction. 7 Furthermo re, a “judge’s mere awareness and approval of the terms of [a] settlement agreement do not suffice” to give the District
Court retained jurisdiction to enforce the agreement. 8
L ike Boenning, Beyerlein contends that the District Court had jurisdiction to enforce the settlement agreement . According to Beyerlein , the Court had jurisdiction because “Judge Mannion’s [D ismissal] Order states that the matter was settled but it could
be reinstated if the settlement has not been consummated.” 9 Beyerlein’s conten tion ignores our holding in Shaffer “that language in a dismissal order providing for the reinstatement of an action if a settlement agreement is not consummated does not satisfy
the first Kokkonen precondition for the enforcement of the settlement agreement itself. ” 10

5 Compare Shaffer , 284 F.3d at 502 with October 21 Order , supra note 1

. The text of the October 21 Order is virtually identical to the wording of the order in Shaffer that was insufficient to confer subject matter jurisdiction on that court. S ee Shaffer , 284 F.3d at 503

– 05

. 6 Boenning ’s Br. at 22

– 23. 7 Kokkonen , 511 U.S. at 381

. 8 Id. 9 Beyerlein’s Br. at 11. 10 Shaffer 284 F.3d at 5 04.5

T he District Court’s October 21 O rder allowed for “either party upon good cause shown, to apply for reinstatement of the action within sixty (60) days

. . . if settlement has
not bee n consummated .” 11 However, reinstatement of an action simply revives the underlying claim and allows “ the litigants back to the original battlefield, [ which ] is totally different from the enforcement of the terms of a settlement agreement because one
of th e parties has not complied with those terms.” 12
I II
. Dominion asks us to reinstate its suit, arguing that the settlement was never knowingly entered into by Masi, its principal

. Unlike Beyerlein’s argument that the possibility of reinstating the lawsuit conferred jurisdiction on the District Court to enforce the settlement agreement, Dominion now asserts that the Court did, indeed, lack jurisdiction. Rule 60(b) of the Federal Rules of Civil Proced ure provides six bases for relief from a judgment and Dominion fails to allege any as a basis for reopening the
lawsuit. 13 In fact, Dominion never mentions the Rule in its brief, and that ground for relief

11 October 21 Order , supra note 1. 12 Shaffer , 284 F.3d at 503; see also Kokkonen , 511 U.S. at 378 ( “ Enforcement of the settlement agreement, however, whether through award of damages or decree of specific performance, is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction .” ) 13 F ED

. R. C IV

. P

. 60(b). (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertenc e, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move fo r a new trial under Rule 59(b);6

is therefore abandoned. 14
IV. Accordingly , we will vacate the Distr ict Court’s September 28, 2017 o rder enforcing the settlement , leaving in place th e October 21 Order of Dismissal.

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentati on, or m isconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospecti vely is no longer equitable; or (6 ) any other reason that justifies relief. 14 See New Jersey v. Merrill Lynch & Co. , 640 F.3d 545, 547 n.3 (3d Cir. 2011) (quoting Kost v. Kozakiewicz , 1 F.3d 176, 182 (3d Cir. 1993) (“Failure to set forth an issue on appeal and present arguments in support of that issue in one’ s opening brief generally amounts to ‘abandon[ment] and waive[r of] that issue

. . . and it need not be addr essed by the court of appeals.’ ” ) ) (alterations in original).