FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 23, 2012

JOHN LEY

CLERK

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 11-13575

Non-Argument Calendar

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D.C. Docket No. 0:11-cv-60265-FAM

RICHARD B. MAYER, 

Plaintiff-Counter 

Defendant-Appellee,

versus

WALL STREET EQUITY GROUP, INC.,

a Florida Corporation,

STEVEN S. WEST, an individual

Defendants-Counter 

Claimants-Appellants.

_________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

Before DUBINA, Chief Judge, HULL and BLACK, Circuit Judges.

PER CURIAM:
I.

The Defendants-Appellants, Wall Street Equity, Inc. and Steven S. West,

appeal the district court’s order denying their motion for attorney’s fees. After

filing a complaint, the Plaintiff-Appellee, Richard B. Mayer, settled his FLSA

overtime pay claim with his former employer. Mayer’s attorney filed the

settlement with the district court and requested attorney’s fees. After the district

court dismissed the case pursuant to settlement, Wall Street Equity and West filed

their opposition to Mayer’s fee motion and then requested their own attorneys’

fees, alleging that Mayer’s attorney pursued the litigation in bad faith. The district

court denied Wall Street Equity and West’s motion without explanation. Wall

Street Equity and West then appealed that order to this court while Mayer’s fee

motion remained pending before the district court. Since the filing of this appeal,

a magistrate judge has entered a report and recommendation that the district court

grant Mayer’s fee motion and deny Wall Street Equity and West’s fee motion. We

conclude that because the fee dispute is not yet final in the district court, we lack

jurisdiction to consider this appeal.

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Before we dismissed the present appeal on Feb. 23, 2012, the district court adopted the 1

magistrate judge’s recommendation, granted Mayer’s fee motion, and denied Wall Street Equity

and West’s fee motion on Feb. 17, 2012. Our opinion does not address the substance of Wall

Street Equity and West’s appeal of the district court’s Feb. 17, 2012 order.

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II.

Generally, this Court has jurisdiction only of appeals from “final decisions

of the district courts.” 28 U.S.C. § 1291. A final decision is typically “one that

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

its judgment.” World Fuel Corp. v. Geithner, 568 F.3d 1345, 1348 (11th Cir.

2009) (internal quotation marks omitted). Postjudgment decisions are likewise

subject to the test of finality. Delaney's Inc. v. Ill. Union Ins. Co., 894 F.2d 1300,

1304 (11th Cir. 1990). However, in postjudgment proceedings, such as attorney

fee disputes, “the meaning of a ‘final decision’ is less clear because the

proceedings necessarily follow a final judgment.” Thomas v. Blue Cross & Blue

Shield Ass'n, 594 F.3d 823, 829 (11th Cir. 2010). Even so, “[w]e ‘treat the

postjudgment proceeding as a free-standing litigation, in effect treating the final

judgment as the first rather than the last order in the case.’” Id. (quoting Ass’n of

Cmty Orgs. for Reform Now v. Ill. State Bd. of Elections, 75 F.3d 304, 306 (7th

Cir. 1996)). Thus, an order is deemed final if it disposes of all the issues raised in

the motion that initially sparked the postjudgment proceedings. See Thomas, 594

F.3d at 829; Solis v. Current Dev. Corp., 557 F.3d 772, 776 (7th Cir. 2009).

III.

In the instant case, Mayer’s fee motion initiated the postjudgment

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proceedings, and the district court did not resolve Mayer’s fee motion when it

denied Wall Street Equity and West’s fee motion. Even if the motions had been

filed in reverse order, this court would still lack appellate jurisdiction because the

other fee motion would remain outstanding. Only if a postjudgment order is

“apparently the last order to be entered in the action” is it final and appealable. 

Delaney’s Inc., 894 F.2d at 1304 (quoting 9 J. LUCAS ET AL., MOORE’S FEDERAL

PRACTICE ¶ 100.14[1], at 196-97 (2d ed. 1988)). For us to hold otherwise invites

litigants to appeal every attorney’s fee order, even if other requests remain

outstanding, resulting in a proliferation of piecemeal or repetitious appeals. See

Solis, 557 F.3d at 776. Furthermore, our ruling is consistent with the Supreme

Court’s practical construction of 28 U.S.C. § 1291. See Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546, 68 S. Ct. 1221, 1225 (1949) (“The effect of [§

1291] is to disallow appeal from any decision which is . . . incomplete,” and §

1291's “purpose is to combine in one review all stages of the proceeding that

effectively may be reviewed and corrected if and when final judgment results.”).

IV.

For the aforementioned reasons, we dismiss Wall Street Equity and West’s

appeal for lack of jurisdiction.

APPEAL DISMISSED.

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