                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0655n.06
                             Filed: August 28, 2006

                                             No. 05-5596


                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

RICHARD E. FELTNER,

        Plaintiff-Appellant,

v.                                                      ON APPEAL FROM THE UNITED
                                                        STATES DISTRICT COURT FOR THE
LAMAR ADVERTISING of TENNESSEE,                         MIDDLE DISTRICT OF TENNESSEE
INC., and THE TRAVELERS COMPANY,

        Defendants-Appellees.

                                                 /




BEFORE:         BATCHELDER, CLAY, and ROGERS, Circuit Judges.

        CLAY, Circuit Judge. Plaintiff Richard E. Feltner appeals the February 18, 2005 order of

the United States District Court for the Middle District of Tennessee administratively closing

Plaintiff’s workers compensation case. Plaintiff brought suit in federal court under diversity

jurisdiction against Defendants Lamar Advertising of Tennessee, Inc. and The Traveler’s Company,

alleging that Defendants were liable under the Tennessee workers’ compensation scheme. On

appeal, Plaintiff argues that the district court committed various errors in its attorney’s fee award

to Plaintiff, that the district court erred in failing to order compensation for Plaintiff’s brother with

respect to certain home care services Plaintiff’s brother provides, and that the district court clerk
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erred in failing to reimburse Plaintiff for his bill of costs. For the following reasons, we DISMISS

the case in its entirety for lack of jurisdiction.

                                                     I.

        On November 26, 1997, Plaintiff filed a complaint against Defendants in federal district

court pursuant to diversity jurisdiction. Plaintiff alleged: (1) the Tennessee workers’ compensation

scheme violated the Equal Protection Clause; (2) Defendant Lamar breached its duty to provide a

safe working environment for Plaintiff; (3) Defendant Lamar breached its duty to warn Plaintiff of

danger; and (4) Defendants were liable under the Tennessee workers’ compensation scheme.

        The state attorney general intervened in the matter and filed a motion for summary judgment

with respect to Plaintiff’s equal protection claim. On August 14, 1998, the district court granted

summary judgment in favor of the attorney general and dismissed Plaintiff’s equal protection claim.

Plaintiff did not appeal this decision.

        On September 26, 2001, Plaintiff filed a motion to compel Defendant Travelers to pay for

certain medical expenses. Specifically, Plaintiff sought payment for: (1) medical services; (2) home

nursing services; (3) a handicapped-equipped van; (4) an appropriate bed; and (5) an appropriate

wheel chair.

        On February 13, 2002, following a bench trial, the district court held: (1) Plaintiff suffered

a compensable total and permanent disability; (2) Defendants were required to pay for side rails for

Plaintiff’s bed; (3) Plaintiff’s brother could not be compensated for home health services he

provided for Plaintiff, but Defendants were required to pay for wound care for Plaintiff; (4)

Defendants were required to pay for the conversion of a van into a handicapped van; and (5) with



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respect to the Plaintiff’s remaining claims for medical prescriptions and supplies, the Tennessee

Department of Labor was in the best position to assess these claims.1

       On March 13, 2002, Defendants timely filed a notice of appeal from the district court’s order.

On December 4, 2003, a panel of this Court affirmed the order of the district court and its finding

that Plaintiff was totally and permanently disabled. Feltner v. Lamar Advertising, Inc., 83 Fed.

App’x 101, 105 (6th Cir. 2003) (unpublished decision).

       On February 22, 2002, Plaintiff filed: (1) a motion for an order to provide future medical

services; (2) a motion to reconsider the issue of compensation for Plaintiff’s brother; and (3) a

motion to supplement the district court order to compel payment of unpaid medical bills. On March

25, 2002, the district court found that Plaintiff was entitled to future medical services under the

Tennessee workers’ compensation scheme, but the Tennessee Department of Labor was the

appropriate body to determine whether future medical services were reasonably necessary as

required under Tennessee law. The district court again denied Plaintiff’s claim for compensation

for home care services rendered by Plaintiff’s brother. With respect to the alleged unpaid medical

bills, the district court ordered Plaintiff to provide Defendants with detailed proof as to which

medical bills were outstanding, so that the parties could submit a joint motion as to what medical

bills required payment.




       1
        Although Plaintiff asserted three theories of liability, the district court discussed only the
claim based on workers’ compensation. Under Tennessee law, workers’ compensation is the
exclusive remedy for employment injury. Tenn. Code Ann. § 50-6-108.

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        On April 7, 2003, Plaintiff filed: (1) a motion for an expedited hearing; (2) a motion to

compel compliance with the district court’s previous order concerning bed side rails, a handicapped-

equipped van, and the payment of unpaid medical bills; and (3) a motion for sanctions.

        On December 29, 2003, Plaintiff filed a petition for attorney’s fees in the amount of

$728,406.53. This amount was well beyond the statutory maximum of twenty percent of the first

400 weeks of the workers’ compensation award, which amounted to $18,133.60 in attorney’s fees.

On April 27, 2004, the district court granted Plaintiff’s petition for attorney’s fees in the amount of

$18,133.60. The district court dismissed Plaintiff’s motion to supplement the record with respect

to Plaintiff’s unpaid medical bills as moot. The district court also dismissed Plaintiff’s motion for

a calculation of weekly benefits as moot, as both parties agreed that Plaintiff’s workers’

compensation rate was $226.67 per week.

        On February 18, 2005, the district court administratively closed the case. On February 28,

2005, Plaintiff filed a notice of appeal. On March 4, 2005, Plaintiff filed a motion to alter or amend

the final order of the district court administratively closing the case. In that motion, Plaintiff sought

reconsideration of the district court’s April 27, 2004 order with respect to attorney’s fees. The

district court found that the motion was moot due to Plaintiff’s appeal to this Court.

        On March 4, 2005, Plaintiff submitted a bill of costs to the district court clerk. The clerk

refused to consider the bill of costs on the ground that Plaintiff’s submission was untimely.

                                                   II.

        The underlying facts are generally not in dispute. Plaintiff was employed by Defendant

Lamar in 1996 as a billboard construction worker. Feltner, 83 Fed. App’x at 102-03. On November



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26, 1996, Plaintiff fell from a billboard in Nashville, Tennessee. Id. at 102. Plaintiff suffered severe

injuries, including broken femurs, broken ribs, a broken sternum, a shattered right elbow, a

punctured right lung, internal bleeding, several fractured vertebrae, and additional injuries to the

head and neck. Id. Due to his injuries sustained from the fall, Plaintiff is a T10 paraplegic. Id.

Following the accident, heterotrophic ossification caused Plaintiff’s elbow to be fused at a

permanent 90 degree angle. Id. In addition, Plaintiff developed bed sores because of Plaintiff’s

inability to stand and relieve pressure on his legs. Id.

        Plaintiff currently resides with his older brother in Las Vegas. Id. Plaintiff’s brother assists

Plaintiff in Plaintiff’s daily life, including helping Plaintiff use the restroom every day. Id. at 103.

                                                  III.

        We find that Plaintiff failed to timely appeal the decision of the district court, so that this

Court does not have jurisdiction over the instant case. Under Federal Rule of Appellate Procedure

4(a)(1), Plaintiff must file a notice of appeal with the district clerk within thirty days after the

judgment at issue is entered.

        The failure of appellant to timely file a notice of appeal deprives an appellate court
        of jurisdiction. Compliance with Fed. R. App. P. 4(a) is a mandatory and
        jurisdictional prerequisite which this court can neither waive nor extend. Baker v.
        Raulie, 879 F.2d 1396, 1398 (6th Cir.1989) (per curiam). Fed. R. App. P. 26(b)
        specifically provides that this court may not enlarge the time for filing a notice of
        appeal.

Rhoden v. Campbell, 153 F.3d 773, 774 (6th Cir. 1998).

        In the instant case, the final judgment of the district court, with respect to the issues raised

by Plaintiff, was entered on April 27, 2004. In that judgment, the district court denied Plaintiff’s

request for $728,406.53 in attorney’s fees. Instead, the district court awarded Plaintiff $18,133.60

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in attorney’s fees. The district court also dismissed two outstanding motions as moot. After this

decision, there was no substantive issue left upon which the district court could render judgment.

Thus, at the latest, the district court entered final judgment on April 27, 2004. Plaintiff filed a notice

of appeal on February 28, 2005, ten months after the judgment of the district court. This notice of

appeal clearly does not meet the thirty day requirement of Federal Rule of Appellate Procedure

4(a)(1), so this Court does not have jurisdiction over Plaintiff’s appeal.

        Plaintiff argues that the relevant date is February 18, 2005, the day the district court

administratively closed the case. Utilizing this date, Plaintiff argues that he satisfied Federal Rule

of Appellate Procedure 4(a)(1), since he filed the notice of appeal on February 28, 2005. We

disagree. The administrative closure of the case was not a substantive decision of the district court.

The district court correctly found that the oversight of Plaintiff’s state workers’ compensation claim

was properly left to the state department of labor, as opposed to the federal judiciary. This was

especially true considering that this ordinary state workers’ compensation case had been in the

federal court system for over seven years. The decision to administratively close the case was

simply not a final judgment entered against Plaintiff. Under 28 U.S.C. § 1291, a final, appealable

judgment occurs when “there has been a decision by the District Court that ends the litigation on the

merits and leaves nothing for the court to do but execute the judgment.” Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 373-374 (1981) (internal quotation marks and citation omitted). In the

instant case, the litigation on the merits was over as of April 27, 2004, and the district court executed

the judgment on that date. Plaintiff failed to timely appeal this judgment, so this Court does not

have jurisdiction over his appeal.



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                                      IV.

We DISMISS the case for lack of jurisdiction.




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