CLD-090 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3397

___________

YOUNES KABBAJ,

Appellant

v.

AMERICAN SCHOOL OF TANGIER, A Delaware corporation; 

BOARD OF TRUSTEES FOR THE AMERICAN SCHOOL OF TANGIER; 

STEPHEN E. EASTMAN, Chairman of the Board; 

EDWARD M. GABRIEL; MARK SIMPSON

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1-10-cv-00431)

District Judge: Honorable Mark A. Kearney

____________________________________

Submitted for Possible Dismissal Due to a Jurisdictional Defect, Possible Dismissal 

Pursuant to 28 U.S.C. § 1915(e)(2)(B), or Possible

Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

January 5, 2017

Before: FISHER, SHWARTZ and GREENBERG, Circuit Judges

(Opinion filed: January 20, 2017)

_________

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

_________

PER CURIAM

Younes Kabbaj appeals from several orders of the United States District Court for 

the District of Delaware. Because no substantial question is presented by the appeal, we 

will summarily affirm the District Court’s orders. Third Circuit LAR 27.4 and I.O.P. 

10.6.

This case has a long and complicated history, of which the parties are well aware. 

Pertinent to the appeal here, the District Court entered an order in April 2012, which, 

pursuant to the parties’ written settlement agreement, provided in part that before Kabbaj 

could bring a civil action against any of the defined “Releasees” of the agreement he 

would have to get written permission from a judge of the District Court. Dkt. #54 (the 

“Consent Order”).1 In March 2015, Kabbaj sought permission to file two complaints: 

one against the American School of Tangiers, its Board of Trustees, Edward M. Gabriel, 

and Stephen E. Eastman (the “AST Defendants”); the other against Mark Simpson and 

Brian Albo. The filing also included a request that the District Court revoke the Consent 

Order. Dkt. #103. The AST Defendants filed a response in opposition to his motion (and 

a motion for sanctions),2and Kabbaj filed a reply. A few months later, Kabbaj filed two 

 

1 The District Court had authority here to enforce the terms of the settlement. See

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994) (setting forth 

requirements to ensure continuing jurisdiction of a district court to enforce parties’ 

settlement agreement).

2 Kabbaj has not appealed the order granting in part and denying in part the Defendants’ 

motion for sanctions. See Dkt. #137.
3

rambling motions to stay a decision on his request that the District Court review and/or 

revoke the April 2012 Consent Order. Kabbaj alleged that a stay was necessary pending 

resolution of his filings in the United States Supreme Court. Dkt. ##121, 122.3 A few 

months after that, Kabbaj filed a “motion for change of venue,” asking that all of his civil 

and criminal matters be transferred to the United States District Court in Baltimore, 

Maryland. Dkt. #123. The District Court ruled on the aforementioned motions in three 

orders entered on August 3, 2016. Dkt. ##138, 139, 140. Kabbaj filed a notice of appeal 

challenging those three orders. Dkt. #142.

This appeal was listed by the Clerk for possible dismissal due to a jurisdictional 

defect.4 The District Court’s order docketed at #140 denied Kabbaj permission to file his 

proposed complaint against the AST Defendants; it was thus final to the extent of that 

denial. But the order also denied permission to file the proposed complaint against 

Simpson and Albo without prejudice to Kabbaj filing a certification with an attached 

proposed complaint, no later than August 16, 2016. At the time Kabbaj filed his notice of 

appeal, the time to comply with the order had not yet run. And the order docketed at 

#139, denying Kabbaj’s motion for a stay, was also denied without prejudice to Kabbaj 

establishing that the United States Supreme Court had granted his petition for a writ of 

 

3 The two documents are identical, except that Dkt. #122 has an additional handwritten 

paragraph at the end.

4 We only have jurisdiction to review final orders of the District Court. 28 U.S.C. 

§ 1291.
4

certiorari. However, as explained below, all aspects of each of the orders have since 

become appealable.

A decision is final if it ends litigation on the merits and leaves nothing for the 

Court to do but execute the judgment. Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62, 

68 (1948); see also In re Grand Jury, 705 F.3d 133, 142 (3d Cir. 2012) (en banc) 

(“Ordinarily, a final decision will have two effects. First, the decision will fully resolve 

all claims presented to the district court. Second, after the decision has been issued, there 

will be nothing further for the district court to do.”). If an order dismisses a complaint 

without prejudice, we do not have jurisdiction to review it if the deficiency in the 

complaint can be cured by the plaintiff, unless the plaintiff declares his intention to stand 

on his complaint. See Borelli v. City of Reading, 532 F.2d 950, 951-52 (3d Cir. 1976) 

(per curiam). And under Cape May Greene v. Warren, 698 F.2d 179, 184-85 (3d Cir. 

1983), and its progeny, a premature notice of appeal may ripen “from a decision that is 

not immediately appealable but that becomes appealable before we take action on the 

appeal.” Marshall v. Comm’r Pa. Dep’t of Corr., 840 F.3d 92, 96 (3d Cir. 2016).

Applying these precepts, we find that we have jurisdiction to review the orders at 

issue here. As to the order at Dkt. #140, Kabbaj filed his notice of appeal before the 

District Court’s deadline to file a certification regarding the complaint against Simpson 

and Albo. While Kabbaj later filed a certification before the deadline, the certification 

essentially indicated his intent to stand on his previously filed proposed complaint against 

Simpson and Albo—Kabbaj noted that he had already filed the proposed complaint in the 
5

United States District Court for the Southern District of New York (“S.D.N.Y.”).5 And 

to the extent that his intent to stand on his proposed complaint was ambiguous, the order 

at Dkt. #140 in any event has become appealable due to subsequent events: first, 

Simpson informed the District Court, see Dkt. #144, that the S.D.N.Y. had dismissed 

Kabbaj’s complaint as frivolous; and the District Court stated in a subsequent order that 

“there is no further litigation [in the District Court] because Plaintiff failed to comply 

with the certification and complaint protocols in our August 3, 2016 Order,” see Dkt. 

#147. We thus have jurisdiction to review the order docketed at #140. See Batoff v. 

State Farm Ins. Co., 977 F.2d 848, 851 & n.5 (3d Cir. 1992) (order dismissing complaint 

with leave to amend may ripen under Cape May Greene doctrine).

We apply plenary review to a district court’s order enforcing a settlement 

agreement to the extent the order involves legal conclusions, and review for clear error to 

the extent factual findings are involved. See Coltec Indus., Inc. v. Hobgood, 280 F.3d 

262, 269 (3d Cir. 2002). The District Court denied Kabbaj’s proposed complaint against 

the AST Defendants because it “contain[ed] no allegations pertaining to any wrongdoing 

by the AST Defendants.” We agree. While the proposed complaint stated repeatedly that 

all of the AST Defendants breached the terms of the settlement agreement, the specific 

allegations of wrongdoing involved only Simpson and Albo. We thus will affirm that 

aspect of the District Court’s order. As for the District Court’s dismissal of the proposed 

 

5 The proposed complaint filed in the District Court at Dkt. #103-2 is identical to a 

complaint at docket #6 in Kabbaj v. Simpson, et al., No. 1:15-cv-00886-RJS, S.D.N.Y.
6

complaint against Simpson and Albo, that aspect of the order is now moot. See Chafin v. 

Chafin, 133 S. Ct. 1017, 1023 (2013) (case becomes moot if it is impossible for court to 

grant any effectual relief to prevailing party). As noted, Kabbaj filed a complaint 

identical to the proposed complaint at Dkt. #103-2 in the S.D.N.Y. case, and it has been 

dismissed as frivolous. We lack jurisdiction to review the S.D.N.Y. order.6

Although the District Court denied Kabbaj’s motion for a stay without prejudice, 

Dkt. #139, the deadline has passed for Kabbaj to provide information establishing that he 

had matters pending in the United States Supreme Court. Thus, that order has also 

become appealable. See Batoff, 977 F.2d at 851 & n.5. We will affirm that order, as the 

District Court clearly did not abuse its discretion in requiring Kabbaj to show that he 

actually had matters pending in the Supreme Court before it would consider whether it 

was necessary to stay the proceedings before it. See Drippe v. Tobelinski, 604 F.3d 778, 

783 (3d Cir. 2010) (district courts generally accorded great deference in matters of case 

management). And we also find no abuse of discretion in the Court’s order denying 

Kabbaj’s motion for a change of venue.7 See Research Automation, Inc. v. Schrader–

Bridgeport Int’l, Inc., 626 F.3d 973, 977 (7th Cir.2010); United States v. Inigo, 925 F.2d 

641, 654 (3d Cir. 1991).

 

6

It does not appear that Kabbaj has filed a notice of appeal to the United States Court of 

Appeals for the Second Circuit.

7 We need not consider whether the order denying the motion for a change of venue was 

final at the time of the appeal, despite pending matters in the District Court. As explained 

above, the District Court later determined that no matters were still pending, see Dkt. 

#147; thus, the order denying a change in venue became appealable at the latest when the 

District Court entered the order at Dkt. #147.
7

For the foregoing reasons, we will affirm the District Court’s orders.