NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 18-3319

SOVEREIGN BANK

v.

REMI CAPITAL, INC.; ERIK A. KAISER, individually

*Jenzack Partners, LLC, as assignee for Sovereign Bank,

Appellant

*(Pursuant to Fed. R. App. P. 12(a))

Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-09-cv-01580)

District Court Judge: Honorable Peter G. Sheridan

Argued on March 10, 2020

Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges.

(Filed: April 23, 2020)

Alissa L. Poynor [Argued]

Barry G. Braunstein

Riemer & Braunstein LLP

100 Cambridge Street, 22nd Floor

Boston, Massachusetts 02114

Counsel for Appellant

______________

______________

______________

______________

______________

______________
2

Joseph B. Fiorenzo

Mark S. Olinsky [Argued]

David W. Phillips

Sillis Cummis & Gross P.C.

One Riverfront Plaza

1037 Raymond Boulevard, 13th Floor

Newark, New Jersey 07102

Counsel for Appellee

OPINION*

RESTREPO, Circuit Judge.

Appellant Jenzack Partners, LLC appeals the District Court’s order applying the 

federal statutory interest rate to a consent judgment resolving a contractual dispute. 

Jenzack urges us to reverse the District Court and hold that the underlying contracts 

provide the applicable post-judgment interest rate. Because the District Court’s order 

was not final under 28 U.S.C. § 1291, we will dismiss Jenzack’s appeal for lack of 

jurisdiction.

I.

On January 25, 2007, Appellees REMI Capital, Inc., and Erik A. Kaiser, REMI’s 

president, entered into certain financing agreements with Sovereign Bank to obtain a $15 

million line of credit, including a guarantee and promissory note providing a prime 

* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, 

does not constitute binding precedent.

______________

______________
3

interest rate1 plus six percent on the loan amount before and after entry of a judgment.

REMI became insolvent and was unable to pay the required amounts under the 

loan agreements. Sovereign Bank then sent REMI a default notice and demanded 

payment of the entire balance, including unpaid interest. Because REMI did not make 

any payments following the default notice, Sovereign Bank filed a complaint against 

REMI and Kaiser on April 3, 2009. One year later, Sovereign Bank filed a motion for 

summary judgment.

While the motion was pending, the parties came to an agreement, which the 

District Court entered as a consent judgment on September 1, 2010. The consent 

judgment holds REMI and Kaiser jointly and severally liable for $1,560,430.24. 

Sovereign Bank assigned its right, title, and interest in the consent judgment to Jenzack

on July 16, 2012. Following a dispute on the remaining balance, Kaiser filed a motion to 

declare the consent judgment satisfied pursuant to Federal Rule of Civil Procedure 

60(b)(5). On September 24, 2018, the District Court denied Kaiser’s motion without 

prejudice2 and set the post-judgment interest rate at the federal rate of 0.26%, as

determined by 28 U.S.C. § 1961(a). Jenzack filed a notice of appeal on October 17, 

2018.

1 The agreements define the prime rate as “the rate of interest designated by the 

Bank from time to time . . . [which] may not be the lowest rate of interest from time to 

time charged by the Bank to its customers.” App. 39.

2 Although the District Court was not explicit, we will construe the order as 

denying Kaiser’s motion without prejudice. The District Court stated that it was denying

the motion “at this time . . . until the remaining discovery issues are resolved.” App. 10.
4

II.

The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332. This 

Court has “jurisdiction of appeals from all final decisions of the district courts.” § 1291 

(emphasis added). We have plenary authority to consider our own jurisdiction. Papotto

v. Hartford Life & Accident Ins. Co., 731 F.3d 265, 269 (3d Cir. 2013).

III.

Jenzack appeals the District Court’s conclusion that § 1961, rather than the 

underlying contracts, provides the applicable post-judgment interest rate. We can only 

reach that issue if the District Court’s order is final under § 1291, so we begin with that 

threshold question. 

A.

This Court dismisses cases for lack of jurisdiction when “[t]he District Court’s 

order is not final under § 1291.” Gillette v. Prosper, 858 F.3d 833, 841 (3d Cir. 2017); 

see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949) (“The effect of 

[§ 1291] is to disallow appeal from any decision which is tentative, informal or 

incomplete.”). We focus on an order’s practical effect when considering finality. See 

Penn W. Assocs., Inc. v. Cohen, 371 F.3d 118, 123–24 (3d Cir. 2004). Central to our 

analysis is whether the “decision will fully resolve all claims presented to the district 

court” and whether “there will be nothing further for the district court to do” once the 

“decision has been issued.” Aluminum Co. of Am. v. Beazer E., Inc., 124 F.3d 551, 557 

(3d Cir. 1997). These considerations are meant to avoid piecemeal litigation. Adapt of 

Phila. v. Phila. Hous. Auth., 433 F.3d 353, 364 (3d Cir. 2006). 
5

Relying on Torres v. Chater, 125 F.3d 166 (3d Cir. 1997), Jenzack points out that 

orders denying Rule 60(b) motions are generally final and appealable. However, orders 

denying Rule 60(b) motions that are interlocutory are typically not appealable under § 

1291. Penn W. Assocs., 371 F.3d at 123 (“[I]f the denial of the Rule 60(b) motion is 

itself interlocutory, we normally do not have appellate jurisdiction to review that 

denial.”). Orders entered without prejudice are generally interlocutory. See Lui v. 

Comm’n on Adult Entm’t Establishments, 369 F.3d 319, 324 (3d Cir. 2004). But we may 

review an interlocutory order denying a Rule 60(b) motion that “has the effect of 

wrap[ping] up all the matters pending on the docket.” See Penn. W. Assocs., 371 F.3d at 

123–24 (internal quotation marks omitted).

The District Court’s order is interlocutory because it allowed further discovery and 

delayed final disposition on the remaining amount to satisfy the consent judgment. See 

In re Carco Elecs., 536 F.3d 211, 213 (3d Cir. 2008) (“It is axiomatic that discovery 

orders are not final orders . . . for purposes of obtaining appellate jurisdiction under [§ 

1291].” (internal quotation marks omitted)). Based on the available information, the 

District Court concluded that it “cannot determine the amount remaining” and denied the 

motion “at this time . . . until the remaining discovery issues are resolved.” App. 10

(emphasis added). As a result, the District Court ordered that REMI and Kaiser “may 

serve [d]iscovery on Plaintiff Sovereign Bank to determine the status of” any amounts 

owed under the consent judgment. Id. (emphasis added).

Jenzack cites Ohntrup v. Firearms Center, Inc., 802 F.2d 676 (3d Cir. 1986), in 

support of the proposition that an order dismissing a post-judgment motion without 
6

prejudice, while discovery was pending, can nonetheless be final.3

 We are not convinced 

that Ohntrup is dispositive because it involved a post-judgment order denying a motion to 

withdraw that “completely settled the question of [counsel’s] withdrawal” and had 

nothing to do with the pending discovery proceedings. See id. at 677–78. Here, the 

District Court permitted discovery proceedings because it was unable to determine the 

heart of the matter, the amount owed on the consent judgment. Discovery was integral to 

resolve the main issue that remained.

To bolster its claims regarding finality, Jenzack next argues that the District 

Court’s order is dispositive on the applicable post-judgment interest rate. Unlike the 

order in Ohntrup, this order resolves an issue that is bound up with outstanding discovery 

proceedings. The District Court cannot calculate the amount remaining on the consent 

judgment without settling past payments and the total interest owed. These are key 

variables in an unfinished calculation that demand further discovery. We cannot 

conclude that the District Court issued a final order that “dispose[d] of the whole 

subject.” Isidor Paiewonsky Assocs. v. Sharp Props., Inc., 998 F.2d 145, 150 (3d Cir. 

3 Jenzack also references a Tenth Circuit decision holding that the “post-trial 

discovery order” at issue “became final and non-interlocutory at the very latest when [the 

plaintiff] was sanctioned for not complying.” Rodriguez v. IBP, Inc., 243 F.3d 1221, 

1227–28 (10th Cir. 2001) (expressing the concern that “a post-trial discovery order would 

never be appealable until a party complies”). We are not convinced that Rodriguez is 

applicable to this case. As far as we are aware, there have not been any sanctions for lack 

of compliance with discovery requests. Furthermore, it is our expectation that Kaiser will 

renew his Rule 60(b)(5) motion once discovery is complete. In fact, he averred to this 

Court that he intended to renew his motion after receiving discovery from Santander 

Bank (Sovereign Bank’s successor-in-interest). He was unable to do so because 

Jenzack’s appeal divested the District Court of jurisdiction over the proceedings.
7

1993); see also Aluminum, 124 F.3d at 557 (noting that a final decision “will fully resolve 

all claims presented to the district court”). Indeed, rather than fully resolving Kaiser’s 

claims, the District Court merely deferred a final ruling on his motion.

We do not have jurisdiction to consider Jenzack’s appeal because the District 

Court’s order is not final. Jenzack did not file a Rule 59(e) motion to alter or amend the 

District Court’s interest rate determination or a Rule 69 motion to execute the consent 

judgment once Kaiser declined to pay beyond the federal interest rate. Instead, it appeals 

the denial of a Rule 60(b)(5) motion that was entered without prejudice and explicitly 

called for additional discovery. That order still leaves much for the District Court to 

resolve. The outstanding issues related to discovery, the remaining amount, and total 

interest owed on the consent judgement precluded the District Court from making a 

definitive determination on Kaiser’s Rule 60(b)(5) motion. Since the order is not final, 

we are left without jurisdiction to hear this appeal.

B.

While we do not have jurisdiction to consider the District Court’s application of § 

1961 as the post-judgment interest rate, it is imperative that Jenzack not be denied 

meaningful appellate review. We urge the parties to act expeditiously on any outstanding 

discovery. Because the District Court denied Kaiser’s Rule 60(b)(5) motion without 

prejudice, Kaiser is free to renew his motion once discovery is complete. Once Jenzack 

collects payment up to the consent judgment amount plus the federal interest rate, Kaiser 

will presumably move to declare the consent judgment satisfied, which would 

subsequently result in a final and appealable order under § 1291.
8

IV.

For the foregoing reasons, we will dismiss Jenzack’s appeal for lack of 

jurisdiction.