UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________________

No. 01-30486 Summary Calendar ________________________

STAR INSURANCE CO.,

Plaintiff-Appellee,

versus

LIVESTOCK PRODUCERS INC.; GEORGE RONALD STRATTON,

Defendants-Appellants.

RONNIE STRATTON, doing business as Livestock Producers Inc.; LIVESTOCK PRODUCERS INC.,

Plaintiffs-Appellants,

versus

MEADOWBROOK INC., ET AL.,

Defendants,

STAR INSURANCE CO.,

Defendant-Appellee. _________________________________________________________________

Appeals from the United States District Court for the Western District of Louisiana Civil Docket Nos.: 99-CV-2, 99-CV-102 _________________________________________________________________ March 19, 2002

Before JOLLY, JONES and SMITH, Circuit Judges. PER CURIAM:*

In November 2001, this court remanded to clarify whether

the district court had entered a final decision. The district

court concluded that it had not done so and later entered a final

judgment. The appellants did not file a second notice of appeal.

The only such notice in the record was filed to precipitate the

original appeal -- and remand -- on April 17, 2001. Although the

parties do not appear to have raised the issue, we must examine the

basis of our jurisdiction sua sponte when necessary. United States

v. Cronan,

(5th Cir. 1991). We conclude that we

lack jurisdiction over this appeal.

“A timely notice of appeal is necessary to the exercise

of appellate jurisdiction.” United States v. Cooper,

(5th Cir. 1998). Fed. R. App. P. 4(a)(2), which applies to

civil actions, provides: "A notice of appeal filed after the court

announces a decision or order -- but before the entry of the

judgment or order -- is treated as filed on the date of and after

the entry." Thus “in civil cases, appeal is proper where notice is

filed after the district court rules from the bench but before the

disposition is entered as a final judgment.” Cooper,

. Cases standing for this proposition “fit squarely within the

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

2 Supreme Court's mandate -- articulated in the civil context -- that

Rule 4 ‘permits a notice of appeal from a non-final decision to

operate as a notice of appeal from the final judgment only when a

district court announces a decision that would be appealable if

immediately followed by the entry of judgment.’”

(quoting

FirsTier Mortgage Co. v. Investors Mortgage Co.,

,

(1991) (emphasis in original)).1 “Systemic

interests in the conservation of judicial resources dictate that a

party must not appeal an order simply because he believes it will

be adverse. Only where the appealing party is fully certain of the

court's disposition, such that the entry of final judgment is

predictably a formality, will appeal be proper. FirsTier allows

premature appeals only where there has been a final decision,

rendered without a formal judgment.” Id. at 963 (citation

omitted).2

The notice of appeal filed in this case was from the

district court’s order of March 26, 2001. This order did two

1 Earlier decisions of this court had held that a premature notice of appeal would be valid whenever no post-judgment or post- trial motions, as set forth in Fed. R. App. P. 4(a)(4), had been filed. In Cooper,

, this court held that FirsTier implicitly overruled those earlier decisions. 2 See Williams v. Roberts,

, 1127 & n.3 (5th Cir. 1997) (when plaintiff-appellant had filed premature notice of appeal, district court had not yet announced its decision or order, and thus appeal would not be treated as filed after date of district court's order dismissing his case; dismissing appeal for lack of jurisdiction).

3 things. First, it affirmed a magistrate judge’s ruling denying the

appellants’ motion for leave to file a second amended complaint.

The magistrate judge had denied this motion as moot because the

district court had already granted partial summary judgment for the

appellees. Second, the order gave the parties thirty days to reach

agreement on the amount of fees to be awarded.

After the notice of appeal was filed, this court

remanded. The district court then issued a “Clarification and

Order Pursuant to Remand” dated November 15, 2001. In this order,

the district court described the initial appeal filed in this case

as “premature[]” and “improper[]” and concluded that its March 26

order had not squarely addressed the appellants’ claim against

appellee Star Insurance Company for “bad faith settlement

practices.” To remedy this omission, the district court explicitly

denied, as both moot and untimely, their motion for leave to file

a second amended complaint. The court stated that its order was

not a final judgment because “the issue of attorney fees is still

unresolved” and again gave the parties thirty days to reach

agreement on attorney’s fees. Later, on November 30, 2001, the

court ordered that a final judgment be entered, stating that the

fees issue and all other matters in the case had been decided by

consent of the parties.

No further notice of appeal has been filed.

4 “FirsTier allows premature appeals only where there has

been a final decision, rendered without a formal judgment.”

Cooper,

. The district court’s March 2001 decision

was not a final decision, and the April 2001 notice of appeal was

premature and invalid. This court lacks jurisdiction over the

appeal.

No injustice is done to the appellants by this

conclusion. This court’s remand put the parties on notice of the

possibility that their appeal was premature and invalid because the

March 26 order was not final, and that this court therefore lacked

jurisdiction. The district court’s orders on remand made crystal

clear (if the litigants did not know it already) that the

appellants had appealed too early -- i.e., that on March 26, 2001,

the litigants could not be “fully certain of the court's

disposition, such that the entry of final judgment “[wa]s

predictably a formality.” Cooper,

. A prudent

litigant seeking to appeal would have filed a notice of appeal

after the entry of final judgment on November 30.

Appeal DISMISSED for want of jurisdiction.

5