                                                 NOT PRECEDENTIAL
                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                   No. 14-3141
                                  _____________

             CERTAIN UNDERWRITERS OF LLOYDS OF LONDON
                SUBSCRIBING TO POLICY NO. CPS200601660

                                         v.

                         JOHNNY LE d/b/a NAILS TIME,
                                     Appellant
                               _____________

               On Appeal from the District Court of the Virgin Islands
                                (St. Croix Division)
                            (Civ. No. 1-13-cv-00040)
                      District Judge: Hon. Curtis V. Gomez
                                  _____________

                               Argued: May 18, 2015

                     Before: McKEE, Chief Judge, SMITH and
                             SCIRICA, Circuit Judges.

                         (Opinion filed: October 19, 2015)

LEE J. ROHN, ESQ.
RHEA R. LAWRENCE, ESQ (Argued)
Law Offices of Rohn and Carpenter, LLC
1101 King Street
Christiansted, St. Croix
U.S. Virgin Islands 00820-4833
Attorneys for Appellant

GARRY E. GARTEN, ESQ. (Argued)
Law Office of Garry Garten, Esq.
8168 Crown Bay Marina, Ste. 505-335
St. Thomas, USVI 0080205819
Attorney for Appellee
                                       _____________

                                         OPINION*
                                       _____________

McKEE, Chief Judge.

    John Phouc-Le, aka Johnny Le, appeals a number of rulings of the district court. For

the reasons that follow we find that, although Le’s appeal was timely and we have

jurisdiction, the appeal is moot and will therefore be dismissed.

                                        I. DISCUSSION

       On June 30, 2014, the Clerk of this Court entered an Order advising Le that the

case had been listed for possible dismissal due to jurisdictional defect. That Order

provided that Le’s notice of appeal was untimely and requested written responses from

both parties. The parties filed timely responses, and on October 20, 2014, a motions panel

of this Court entered an Order stating that the jurisdictional issue was referred to the

merits panel and directed the parties to address the jurisdictional issue in their briefs.

Both parties complied.

                                       A. Jurisdiction.

       We have jurisdiction because Le’s notice of appeal was timely. Although it was

filed 180 days after the December 27, Order, the district court failed to enter a “separate

document” on the docket as required by Fed. R. Civ. P. 58(a).




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

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       The timely filing of a notice of appeal in a civil case is a jurisdictional

requirement. Bowles v. Russell, 551 U.S. 205, 214 (2007); see also 28 U.S.C. § 1291. A

proper notice of appeal must be filed in accordance with Rule 4. See Fed. R. App. P.

3(a)(1). Under Fed. R. App. P. 4(a)(1)(A), notices of appeal must generally be filed

“within 30 days after entry of the judgment or order appealed from.” Under Fed. R. Civ.

P. 58(a), “[e]very judgment and amended judgment must be set out in a separate

judgment” with certain exceptions not relevant here. Thus, “a separate document [is]

required . . . to have a proper Rule 58 judgment.” Perry v. Sheet Metal Workers’ Local

No. 73 Pension Fund, 585 F.3d 358, 361 (7th Cir. 2009).

       “[I]f Federal Rule of Civil Procedure 58(a) requires a separate document,” the

judgment is considered entered “when the judgment or order is entered in the civil docket

under Federal Rule of Civil Procedure 79(a) and when the earlier of these events occurs:

[1] the judgment or order is set forth on a separate document, or [2] 150 days have run

from entry of the judgment or order in the civil docket under Federal Rule of Civil

Procedure 79(a).” Fed. R. App. P. 4(a)(7)(A)(ii). “Thus, if a certain order is subject to

the separate-document requirement of Federal Rule of Civil Procedure 58 and no separate

document exists, an appellant has 180 days to file a notice of appeal – 150 days for the

judgment to be considered ‘entered,’ plus the usual 30 days from the entry of judgment.”

Leboon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 223 (3d Cir. 2007).

       “[A]n order is treated as a separate document if it: (1) is self-contained and

separate from the opinion, (2) notes the relief granted, and (3) omits (or at least

substantially omits) the trial court’s reason for disposing of the claims.” Id. (citation

                                               3
omitted). In Barber v. Shinseki, 660 F.3d 877, 878 (5th Cir. 2011), the Fifth Circuit held

that an electronic document is sufficient to qualify as a “separate document” under Rule

58. However, the Fifth Circuit emphasized that a district court “has an obligation to issue

an order as a separate, freestanding document, and not just as a docket entry, when it

disposes of a case.” Id. at 879. An electronic order simply entered on the docket sheet

does not meet this requirement. Id.

        The district court entered the following Order on the docket on December 27,

2013:

              ORDER (CVG) The motion for summary judgment 24 is
              GRANTED as against Johnny Le d/b/a/ Nails Time. The
              Court will issue a memorandum opinion in the coming weeks
              outlining the reason for this ruling. (This is a TEXT ENTRY
              ONLY. There is no .pdf attachment associated with this
              entry.) (JNH) (Entered: 12/27/2103)1


This entry does not satisfy the “separate document” requirement under Rule 58(a). The

Order was entered electronically as a “TEXT ENTRY ONLY” and there was “no .pdf

attachment” associated with it. It was a separate entry on the docket sheet, but it was not

a “separate document” as required by Rule 58(a). Because a separate document was

never filed, the judgment is treated as entered 150 days after its entry and the time to file

a notice of appeal started to run then. Accordingly, Le had 180 days to file an appeal

1
 The Court understands that “[o]rdinarily, an order which terminates fewer than all
claims, or claims against fewer than all parties, does not constitute a ‘final’ order for
purposes of appeal under 28 U.S.C. § 1291.” Berckeley Inv. Grp., Ltd. v. Colkitt, 259
F.3d 135, 140 (3d Cir. 2001) (citation omitted). But notes that the district court is
permitted “to enter partial final judgments of less than all claims” under Fed. R. Civ. P.
54(b), and that such judgments are appealable. Id.; see also Cold Metal Process Co. v.
United Eng’g & Foundry Co., 351 U.S. 445, 452 (1956).
                                              4
from the district court’s December 27, 2013, Order granting Lloyds summary judgment

motion. Le filed his Notice of Appeal on June 25, 2014, 180 days after the December 27,

2013, Order. As such, Le’s appeal was timely and we have jurisdiction over it.

                                           B. Mootness.

       Le’s appeal of the district court’s December 27, 2013, Order is moot because on

June 25, 2014 there was no longer any case or controversy between the parties. “It is a

basic principle of Article III that a justiciable case or controversy must remain extant at

all stages of review, not merely at the time the complaint is filed.” United States v.

Juvenile Male, 131 S. Ct. 2860, 2864 (2011) (citation and internal quotation marks

omitted). “The burden is on the party claiming declaratory judgment jurisdiction to

establish that such jurisdiction existed at the time the claim for declaratory relief was

filed and that it has continued since.” Benitec Australia, Ltd. v. Nucleonics, Inc., 495

F.3d 1340, 1344 (Fed. Cir. 2007) (citations omitted).

       Lloyds filed its declaratory judgment action on April 18, 2013. At that time the

controversy was still extant. On October 9, 2013, Le consented to a Consent Judgment

being entered against him in the amount of $1 million plus costs in favor of Kitnurse in

the Kitnurse case. A Consent Judgment is not valid until a joint stipulation or motion is

made with the court and then accepted and entered by that court after the court’s

assessment of whether it was carefully negotiated at arms-length and is reasonable. See

Local No. 93, Intl’l Ass’n of Firefighters, AFL-CIO, C.L.C. v. City of Cleveland, 478 U.S.

501, 522 (1986). The judge in the Kitnurse case did not conduct a hearing regarding the

Consent Judgment, but refused to enter it without a joint stipulation. A joint stipulation

                                              5
by the parties was executed on May 7, 2014. Pursuant to the joint stipulation, the

following electronic entry was made on the docket in the Kitnurse case:

              ORDER (WAL) dated 5/21/2014. THIS MATTER comes
              before the Court on a [83] “Stipulation For Court to Enter
              Consent Judgment,” which was filed on May 7, 2014. UPON
              CONSIDERATION of that Stipulation, and it appearing that
              the parties’ proposed Consent Judgment represents the
              agreement of the parties, it is hereby ORDERED that the
              Stipulation is ACCEPTED and Judgment is entered for
              Plaintiff as set forth in the Stipulation. (This is a TEXT
              ENTRY ONLY. There is no .pdf document associated with
              this entry.) AJG

       After the entry of the Consent Judgment on May 21, 2014, there was no longer

any “case” or “controversy” between Lloyds and Le. The Consent Judgment terminated

any liability and responsibility Lloyds may have had to Le in the Kitnurse case. Le filed

his appeal on June 15, 2014—after the entry of the Consent Judgment. At that point there

was no longer any case or controversy between Lloyds and Le and there is none now.

Thus, Le’s appeal is moot and must be dismissed.

                                   II. CONCLUSION

       For the above reasons, this appeal will be dismissed as moot.




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