NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 17-3391 _____________

DOMINION DEVELOPMENT GROUP, LLC

v.

CINDY BEYERLEIN; BOENNING & SCATTERGOOD

Dominion Development Group, LLC; Dominion Development Group Derivatively on behalf of Flagstaff Resort Land Holdings, Ltd., Appellants ______________

Appeal from the United States District Court for the Middle District of Pennsylvania (District Court No. 3-15-cv-00961) District Judge: Hon. Malachy E. Mannion ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) December 11, 2018 ______________

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

(Opinion filed: May 24, 2019)

_______________________

OPINION _______________________

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.

Appellant Dominion Development Group, LLC appeals the District Court’s order

granting Appellees’ motion to enforce a settlement. Dominion argues the District Court

erred in two ways: (1) by binding it to the settlement and (2) by enforcing the settlement

when it lacked subject matter jurisdiction. Dominion also argues that the underlying case

should be reinstated. Because the District Court lacked subject matter jurisdiction to

enforce the settlement, we will vacate and remand.

I. Through its principal, Larry Masi, Dominion sued Appellees alleging improper

interference with its ability to secure financing for a business development project.

Discovery ensued for two years and a settlement conference was eventually held in the

Middle District of Pennsylvania on October 21, 2016. Masi appeared on behalf of

Dominion, along with his attorneys. Appellees Cindy Beyerlein and Boenning &

Scattergood were also represented by counsel at the conference.

After over four hours of discussion and settlement negotiations, the parties orally

agreed to settle the action, and the District Court dismissed the case subject to possible

reinstatement within 60 days upon good cause shown by any party. The Court’s order was

dated October 21, 2016 and read in full:

After a lengthy settlement conference, the parties have come to an agreement to resolve and settle. IT IS ORDERED THAT this action be dismissed without costs and with prejudice to the right of either party upon good cause shown, to apply for reinstatement of the action within sixty (60) days of the date of this order if settlement has not been consummated.1

1 Joint App. Dismissal Order of October 21, 2016, at 74 [hereinafter October 21 Order].

2 On December 21, 2016, Boenning filed a motion to enforce the settlement reached

on October 21st and impose sanctions. Dominion filed a brief in opposition in which it

argued that counsel did not have express authority to settle the matter. The Court held a

hearing on the motion on July 17, 2017.

In the District Court, neither the parties nor the Court raised the issue of the Court’s

subject matter jurisdiction to hear the motion. Accordingly, jurisdiction was never

addressed. Nevertheless, in its September 28, 2017 order, the Court granted Boenning’s

motion to enforce the settlement and denied the request for sanctions against Dominion,

Masi, and his current counsel. That order is the basis of this appeal.2

II. We review the District Court’s subject matter jurisdiction de novo.3 The Supreme

Court has held that when a “district court dismisses an action pursuant to a settlement

agreement, that court lacks jurisdiction to enforce that settlement agreement unless the

obligation of the parties to comply with the settlement agreement is made part of the

dismissal order or there is an independent basis for exercising jurisdiction.”4 Neither

ground for jurisdiction exists here.

The District Court’s October 21, 2016 dismissal order did not make the terms of

the settlement agreement part of the order and therefore, the Court did not have

2 We have appellate jurisdiction pursuant to

. 3 In re Phar-Mor, Inc.,

(3d Cir. 1999); Shaffer v. GTE North, Inc.,

(3d Cir. 2002). 4 Phar-Mor,

(citing Kokkonen v. Guardian Life Ins. Co. of America,

, 381–82 (1994)).

3 jurisdiction to later enforce the agreement.5 Additionally, there is no independent basis for

exercising jurisdiction.

Boenning argues that the District Court “retained subject matter jurisdiction to

enforce the settlement agreement” through its factual finding that the parties agreed to

settle the case.6 The dismissal order, however, did not contain a “separate provision (such

as a provision ‘retaining jurisdiction’ over the settlement agreement)” and a factual

finding is not a provision retaining jurisdiction.7 Furthermore, a “judge’s mere awareness

and approval of the terms of [a] settlement agreement do not suffice” to give the District

Court retained jurisdiction to enforce the agreement.8

Like Boenning, Beyerlein contends that the District Court had jurisdiction to

enforce the settlement agreement. According to Beyerlein, the Court had jurisdiction

because “Judge Mannion’s [Dismissal] Order states that the matter was settled but it could

be reinstated if the settlement has not been consummated.”9 Beyerlein’s contention

ignores our holding in Shaffer “that language in a dismissal order providing for the

reinstatement of an action if a settlement agreement is not consummated does not satisfy

the first Kokkonen precondition for the enforcement of the settlement agreement itself.” 10

5 Compare Shaffer,

with October 21 Order, supra note 1. The text of the October 21 Order is virtually identical to the wording of the order in Shaffer that was insufficient to confer subject matter jurisdiction on that court. See Shaffer, 284 F.3d at 503–05. 6 Boenning’s Br. at 22–23. 7 Kokkonen,

. 8

9 Beyerlein’s Br. at 11. 10 Shaffer

.

4 The District Court’s October 21 Order allowed for “either party upon good cause

shown, to apply for reinstatement of the action within sixty (60) days . . . if settlement has

not been consummated.”11 However, reinstatement of an action simply revives the

underlying claim and allows “the litigants back to the original battlefield, [which] is

totally different from the enforcement of the terms of a settlement agreement because one

of the parties has not complied with those terms.”12

III. Dominion asks us to reinstate its suit, arguing that the settlement was never

knowingly entered into by Masi, its principal. Unlike Beyerlein’s argument that the

possibility of reinstating the lawsuit conferred jurisdiction on the District Court to enforce

the settlement agreement, Dominion now asserts that the Court did, indeed, lack

jurisdiction. Rule 60(b) of the Federal Rules of Civil Procedure provides six bases for

relief from a judgment and Dominion fails to allege any as a basis for reopening the

lawsuit.13 In fact, Dominion never mentions the Rule in its brief, and that ground for relief

11 October 21 Order, supra note 1. 12 Shaffer,

; see also Kokkonen,

(“Enforcement of the settlement agreement, however, whether through award of damages or decree of specific performance, is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction.”) 13 FED. R. CIV. P. 60(b). (b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

5 is therefore abandoned.14

IV. Accordingly, we will vacate the District Court’s September 28, 2017 order

enforcing the settlement, leaving in place the October 21 Order of Dismissal.

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 14 See New Jersey v. Merrill Lynch & Co.,

, 547 n.3 (3d Cir. 2011) (quoting Kost v. Kozakiewicz,

(3d Cir. 1993) (“Failure to set forth an issue on appeal and present arguments in support of that issue in one’s opening brief generally amounts to ‘abandon[ment] and waive[r of] that issue . . . and it need not be addressed by the court of appeals.’”)) (alterations in original).

6