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Veronica Ramirez-Mateo v. Attorney General United States of America

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-7-2025 
Susan Galette v. Avenue 365 Lending Services LLC 
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Recommended Citation 
"Susan Galette v. Avenue 365 Lending Services LLC" (2025). 2025 Decisions. 115. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/115 
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NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
No. 24-1221 
_____________ 
 
SUSAN GALETTE, 
  Appellant 
 
v. 
 
AVENUE 365 LENDING SERVICES LLC; 
NEWREZ LLC, 
also operating as Caliber Home Loans, Caliber Home Funding 
_______________ 
 
On Appeal from the United States District Court 
for the Eastern District of Pennsylvania 
(D.C. No. 2:22-cv-02778) 
District Judge: Hon. Kai N. Scott 
_______________ 
 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
December 6, 2024 
 
Before: SHWARTZ, MATEY, and McKEE, Circuit Judges 
 
(Filed:  February 7, 2025) 
_______________ 
 
OPINION 
_______________ 
 
 
 
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, does not 
constitute binding precedent. 
 
 
 
 
 
2 
MATEY, Circuit Judge. 
Susan Galette claims she was terminated by her employer Avenue 365 Lending 
Services LLC (Avenue 365) due to her disability and age. The District Court granted 
summary judgment for the Defendants on all claims and, finding no error, we will affirm. 
I. 
In 2012, Galette began working for Avenue 365, a title insurance and settlement 
company. Galette was hired as a “funding specialist” and initially worked in office but, 
following the arrival of COVID-19 in March 2020, company employees began working 
from home. Only three funding department employees—Galette not among them—could 
print and scan checks outside the office. By July 2020, Avenue 365 discontinued remote 
printing and scanning, and the funding specialists returned to the office. Galette, 
however, continued working remotely because of a recently diagnosed medical condition.  
Avenue 365 then required all funding specialists to work in office full time by July 
2021. Galette was informed that she would need to return to the office or provide an 
updated medical certification to justify her need to work remotely. Galette provided the 
documentation and Avenue 365 approved her request to work remotely through 
December 2021.  
In January 2022, Galette requested to permanently extend her work-from-home 
accommodation. But Avenue 365 informed Galette that she would be terminated if she 
did not return to the office. When Galette did not return, she was terminated. Avenue 365 
did not hire a replacement for Galette. Indeed, the funding department had not hired 
 
 
 
 
 
3 
employees since 2021 and, in 2022, Avenue 365 implemented a company-wide hiring 
freeze and underwent several reductions in force.  
Galette filed suit against Avenue 365 and Newrez, LLC, a separate entity that 
provided legal and administrative services to Avenue 365. She alleged violations of the 
Americans with Disabilities Act, 42 U.S.C. §§ 12101–12213 (ADA), the Age 
Discrimination in Employment Act, 29 U.S.C. §§ 621–634 (ADEA), and the 
Pennsylvania Human Relations Act, 43 Pa. Stat. and Cons. Stat. §§ 951–963 (PHRA). 
The District Court entered summary judgment for the Defendants on all claims, 
concluding that Galette failed to establish a prima facie case of disability or age 
discrimination and that any nondiscriminatory basis for her termination was not 
pretextual. Galette now appeals.1  
 
1 The District Court had jurisdiction under 28 U.S.C. §§ 1331 and 1367(a). This 
Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the 
District Court’s grant of summary judgment. See Morgan v. Allison Crane & Rigging 
LLC, 114 F.4th 214, 220 (3d Cir. 2024). “[A]pplying ‘the same standards and 
presumptions as the District Court,’” Mid-Century Ins. Co. v. Werley, 114 F.4th 200, 207 
(3d Cir. 2024) (quoting Sapa Extrusions, Inc. v. Liberty Mut. Ins. Co., 939 F.3d 243, 249 
(3d Cir. 2019)), “[w]e grant summary judgment ‘if the pleadings, the discovery and 
disclosure materials on file, and any affidavits show that there is no genuine issue as to 
any material fact and that the movant is entitled to judgment as a matter of law,’” 
Morgan, 114 F.4th at 220 (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 501 (3d Cir. 
2010)).  
 
 
 
 
 
4 
II. 
Galette’s disability and age discrimination claims are analyzed under the burden-
shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).2 See 
Walton v. Mental Health Ass’n of Se. Pa., 168 F.3d 661, 667–68 (3d Cir. 1999) (disability 
discrimination); Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en 
banc) (age discrimination). Galette bears the burden of production and must establish a 
prima facie case of discrimination. See Smith v. City of Allentown, 589 F.3d 684, 689 (3d 
Cir. 2009). 
To establish a prima facie case of disability discrimination, Galette must show: 
1) she has “a disability within the meaning of the ADA”; 2) she is “otherwise qualified to 
perform the essential functions of the job, with or without reasonable accommodations by 
the employer”; and 3) she has “suffered an otherwise adverse employment decision as a 
result of discrimination.” Morgan v. Allison Crane & Rigging LLC, 114 F.4th 214, 221 
(3d Cir. 2024) (quoting Eshleman v. Patrick Indus., Inc., 961 F.3d 242, 245 (3d Cir. 
2020)). A prima facie case of age discrimination requires Galette to establish: 1) she was 
“at least forty years old”; 2) she “suffered an adverse employment decision”; 3) she “was 
qualified for the position in question”; and 4) she “was ultimately replaced by another 
employee who was sufficiently younger so as to support an inference of a discriminatory 
motive.” Willis v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 
 
2 Galette’s PHRA claims are analyzed under the same framework as her ADA and 
ADEA claims. See Colwell, 602 F.3d at 499 n.3. Accordingly, the following analysis of 
her federal law claims applies with equal force to her state law claims. 
 
 
 
 
 
5 
2015). Because Galette was “not directly replaced,” she can fulfill the fourth element 
with “facts which ‘if otherwise unexplained, are more likely than not based on the 
consideration of impermissible factors.’” Id. (quoting Pivirotto v. Innovative Sys., Inc., 
191 F.3d 344, 352 (3d Cir. 1999)).  
If Galette satisfies these elements, “the burden of production shifts to the employer 
to identify a legitimate non-discriminatory reason for the adverse employment action.” 
Smith, 589 F.3d at 690. “If the employer does so, the burden of production returns to 
[Galette] to demonstrate that the employer’s proffered rationale was a pretext for” 
discrimination. Id.  
A. 
Galette has failed to establish a prima facie case of disability discrimination 
because she has not shown she can perform the essential functions of a funding specialist, 
with or without reasonable accommodation.3 Whether a function is essential “is a factual 
determination that must be made on a case by case basis [based upon] all relevant 
evidence.” Turner v. Hershey Chocolate USA, 440 F.3d 604, 612 (3d Cir. 2006) 
(alteration in original) (quoting Deane v. Pocono Med. Ctr., 142 F.3d 138, 148 (3d Cir. 
1998) (en banc)). In determining what functions are essential, “consideration shall be 
given to the employer’s judgment,” as well as a written job description “if an employer 
 
3 The parties do not dispute that Galette is disabled or suffered an adverse 
employment action. Her prima facie case of disability discrimination therefore hinges on 
whether she was otherwise qualified to perform the essential functions of a funding 
specialist.  
 
 
 
 
 
6 
has prepared [one] before advertising or interviewing applicants for the job.” 42 U.S.C. 
§ 12111(8).  
Avenue 365 considered a funding specialist’s essential functions to include 
“printing, scanning and disbursing checks, releasing wires, facilitating the timely funding 
of loans, handling files disbursed by third-party partners, overnighting checks, booking or 
posting wires and deposits, handling mail, answering emails, making phone calls, and 
handling attorney wires.” App. 19. It put forth a funding specialist job description that 
echoed those functions, and claimed that by 2021, the only functions that could be 
performed at home were “answering emails, making phone calls, and handling attorney 
wires.” App. 19.  
Galette argued that “three other employees who were operating as [f]unding 
[s]pecialists worked remotely and did not perform the same functions that Avenue 365 
alleges were essential.” Opening Br. 23. But those employees, Drew Pollack, Tiffany 
Lastinger, and Fonda Aguwa,4 are improper comparators. Pollack, as a senior funding 
specialist, had a different title and, by Galette’s own admission, “had a different skill set 
and provided a different level of experience.” App. 61. And unlike Galette, who “had 
completed these duties – in the office – for nearly a decade prior to the pandemic,” 
Response Br. 23, Lastinger and Aguwa were hired to work remotely because Avenue 365 
“could not find enough people to join the funding team locally,” App. 131. Moreover, 
 
4 There appears to be disagreement among the parties as to the correct spelling of 
this employee’s name. For the avoidance of doubt, we will adhere to the District Court’s 
spelling of “Fonda Aguwa.” App. 10. 
 
 
 
 
 
7 
Lastinger left the company approximately five months before Galette’s termination and 
Aguwa was part of a reduction in force seven months after the termination.5 Accordingly, 
there is no genuine dispute that the essential functions of a funding specialist were those 
outlined by Avenue 365. 
Nor could Galette perform these essential functions, with or without reasonable 
accommodation. Because only three of a funding specialist’s essential functions could be 
completed remotely, Galette could not perform certain essential functions of her position 
without reasonable accommodation. She claims, however, that the only accommodation 
needed was “to be provided with a printer to accomplish th[ose] function[s] remotely.” 
Opening Br. 27. But the burdens of an accommodation cannot be “clearly 
disproportionate to the benefits that it will produce.” Gaul v. Lucent Techs. Inc., 134 F.3d 
576, 580–81 (3d Cir. 1998) (quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 
138 (2d Cir. 1995)). And Avenue 365 discontinued the remote printing and scanning of 
checks almost five years ago due to security concerns, such that Galette’s “proposed 
accommodation would impose a wholly impractical obligation.” Id. at 581. Accordingly, 
 
5 All that remains is Galette’s bare contention that she “mainly handled attorney 
files.” Dist. Ct. Dkt. 31-5 at 4. True, evidence that may be considered in determining the 
essential functions of a position includes “[t]he amount of time spent on the job 
performing the function.” Turner, 440 F.3d at 612 (quoting 29 C.F.R. § 1630.2(n)(3)). 
But Galette’s assertion ignores her admission that she had performed the functions 
Avenue 365 deemed essential for almost ten years while working in office. Nor is it 
surprising that Galette did not devote much, if any, time to these functions while working 
outside the office because only “answering emails, making phone calls, and handling 
attorney wires” could be done remotely. App. 19.  
 
 
 
 
 
8 
the District Court did not err in granting summary judgment on Galette’s disability 
discrimination claim. 
B. 
The shortcomings of Galette’s disability discrimination claim similarly forestall 
her failure to accommodate claim. There is “significant interplay” between discrimination 
and failure to accommodate claims under the ADA, such that the latter “may be viewed 
simply as a type of discrimination claim, where the relevant adverse employment action 
is the employer’s ‘refus[al] to make reasonable accommodations for a[n employee’s] 
disabilities.’” Fowler v. AT & T, Inc., 19 F.4th 292, 306 (3d Cir. 2021) (alterations in 
original) (quoting Colwell v. Rite Aid Corp., 602 F.3d 495, 504 (3d Cir. 2010)). A failure 
to accommodate claim requires the employee to show that she is “qualified to perform the 
essential functions of the job.” Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 186 
(3d Cir. 2009).  
As discussed above, Galette “has not met her burden to show that she is otherwise 
qualified for her position,” Fowler, 19 F.4th at 307, because she cannot demonstrate that 
she is able to perform the essential functions of her job. And an employer is “not required 
to accommodate an employee by removing an essential function or restructuring a job so 
as to avoid it.” Skerski v. Time Warner Cable Co., 257 F.3d 273, 285 n.4 (3d Cir. 2001). 
Because Galette cannot sustain a failure to accommodate claim, the District Court 
properly granted summary judgment.  
 
 
 
 
 
9 
C. 
As for her age discrimination claim, Galette has not shown that she was terminated 
“more likely than not based on the consideration of impermissible factors.” Willis, 808 
F.3d at 644 (quoting Pivirotto, 191 F.3d at 352). She claims this element was satisfied 
because “other substantially younger [f]unding [s]pecialists (including at least one 
working remotely) remained employed when [she] was terminated.” Opening Br. 34. “In 
order to determine who might qualify as a similarly situated employee we must look to 
the job function, level of supervisory responsibility and salary, as well as other factors 
relevant to the particular workplace.” Monaco v. Am. Gen. Assurance Co., 359 F.3d 296, 
305 (3d Cir. 2004). Because Galette was “not able to perform all of the duties of a 
funding specialist at home,” App. 134, she did not have “the same job responsibilities” as 
in-office funding specialists, Monaco, 359 F.3d at 305, rendering them improper 
comparators. It is true, as discussed above, that Aguwa, a substantially younger funding 
specialist who worked remotely, was not terminated at the same time as Galette. But 
“evidence of more favorable treatment cannot be viewed in a vacuum” and instead “the 
record must be viewed as a whole.” Willis, 808 F.3d at 646. And although not terminated 
in April 2022 alongside Galette, Aguwa was part of a reduction in force only seven 
months later. Taken together, there is insufficient evidence that a similarly situated, 
substantially younger employee was treated more favorably than Galette. 
Galette points to an advertisement for a remote funding specialist position, posted 
one month after she was terminated, as evidence of impermissible factors considered in 
 
 
 
 
 
10 
her termination. We have explained that an example of a defendant-employer considering 
impermissible factors in the termination of a plaintiff-employee “would be when a 
defendant ‘continued to seek applicants from among those having plaintiff’s 
qualifications.’” Martinez v. UPMC Susquehanna, 986 F.3d 261, 267 (3d Cir. 2021) 
(quoting Barber v. CSX Distrib. Servs., 68 F.3d 694, 698 (3d Cir. 1995)). But when this 
advertisement was posted, there was no such position available at Avenue 365. Indeed, 
the funding department had not hired anyone since 2021 and, in 2022, Avenue 365 
implemented a company-wide hiring freeze and underwent several force reductions. So 
while Avenue 365 may have posted an advertisement, it was not seeking applicants such 
that the company considered impermissible factors in terminating Galette. 
And even if Galette had demonstrated a prima facie case of age discrimination, she 
failed to show that Avenue 365’s reason for terminating her was pretextual. See, e.g., 
Healy v. N.Y. Life Ins. Co., 860 F.2d 1209, 1220 (3d Cir. 1988) (explaining that a plaintiff 
“must not only introduce evidence from which a reasonable person could infer that he is 
qualified” but “also must introduce evidence that casts doubt on his employer’s 
contention that there was a legitimate business justification for letting him go”). Indeed, 
Galette admitted that her termination stemmed from her failure to return to in-office 
work: 
Q. She told you if you came into the office, you [would] have a job, correct? 
A. Right, correct.  
Q. But if you didn’t come into the office, you would not have a job? 
A. Correct. 
 
 
 
 
 
 
11 
App. 62. Accordingly, the District Court did not err in granting summary judgment on 
Galette’s age discrimination claim.6  
 *  *  * 
The District Court did not err in granting the Defendants’ motion for summary 
judgment. So we will affirm.  
 
6 Having determined that the District Court did not err in granting summary 
judgment on Galette’s claims, we decline to consider whether Newrez should be held 
liable as her employer alongside Avenue 365.  


English

Susan Galette v. Avenue 365 Lending Services LLC

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-11-2025 
Robert Swift v. Bhuwan Pandey 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Robert Swift v. Bhuwan Pandey" (2025). 2025 Decisions. 125. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/125 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
         NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
___________ 
 
No. 22-2718 
__________ 
 
ROBERT SWIFT, 
   Appellant 
 
v. 
 
BHUWAN PANDEY; 
RAMESH PANDEY; 
XECHEM-(INDIA) PVT LTD 
____________________________________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. Civil Action No. 2:13-cv-00650) 
District Judge:  Honorable Brian R. Martinotti 
____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
July 24, 2024 
Before:  HARDIMAN, PORTER, and FREEMAN, Circuit Judges 
 
(Opinion filed February 11, 2025) 
___________ 
 
OPINION* 
___________ 
 
PER CURIAM 
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
 
2 
 
Robert Swift, proceeding pro se, appeals the amended final judgment in this 
matter, which dismissed all of the claims in his civil action with prejudice.  For the 
following reasons, we will modify the District Court’s judgment and affirm the judgment 
as modified. 
Swift filed this diversity action against Ramesh Pandey, his brother Bhuwan 
Pandey, and Xechem-(India) PVT, Ltd. (“XI”).  The complaint1 alleged generally that the 
Pandeys were executives and officers of both Xechem International, Inc. (“Xechem”) and 
XI, and that, at bankruptcy auction, Swift purchased all “right, title, and interest in any 
and all assets” of both businesses.  ECF No. 85 at 2.  Prior to the bankruptcy, Xechem 
transferred $977,394 to XI, allegedly under the guise of a loan.  The Pandeys used the 
funds for their personal benefit, and the loan was never paid back to Xechem.  The 
complaint further alleged that XI was not a subsidiary of Xechem, as its SEC filings 
indicate, but was merely a conduit for the Pandeys’ personal finances and business 
transactions.  Swift asserted claims for quantum meruit and unjust enrichment against all 
three defendants.   
After protracted discovery and motion practice, the District Court held a bench 
trial on the matter in August 2022.  At the close of Swift’s case, the District Court 
granted judgment in favor of the Pandeys pursuant to Federal Rule of Civil Procedure 
 
1 The operative complaint is the third amended complaint.  See ECF No. 85. 
 
 
3 
 
52(c).  See ECF No. 481.  Swift appealed.2  The District Court entered an amended final 
judgment on November 28, 2023, dismissing all claims against all parties with prejudice.  
Swift filed an amended notice of appeal. 
 We have jurisdiction pursuant to 28 U.S.C. § 1291.  Where, as here, a district 
court enters judgment on partial findings pursuant to Rule 52(c), we review its findings of 
fact for clear error and its conclusions of law de novo.  See Rego v. ARC Water 
Treatment Co. of Pa., 181 F.3d 396, 400 (3d Cir. 1999).   
 We first note that Swift has forfeited review of the “issues” and “rulings” listed, 
but not addressed, in his brief, see Appellant’s Br. at 2, 9.  See Kost v. Kozakiewicz, 1 
F.3d 176, 182 (3d Cir. 1993) (citing Fed. R. App. P. 28).  We further note that Swift did 
not file a supplemental brief after the amended judgment, thereby forfeiting any 
challenge to the District Court’s dismissal of the claims against XI.  As discussed below, 
his remaining arguments were largely rendered moot by the amended judgment.  
 We begin with Swift’s argument that the District Court misapplied New Jersey 
law on unjust enrichment.  See Pro Se Br. at 10.  Swift claimed that Xechem loaned 
 
2 We stayed the appeal and remanded for consideration of Swift’s timely motion to alter 
or amend the judgment pursuant to Federal Rule of Civil Procedure 59(e), which sought 
an amended judgment reflecting, inter alia, a default judgment against XI that the District 
Court orally granted at trial.  See ECF no. 482.  The District Court subsequently 
determined that XI was not properly served, and that it thus lacked personal jurisdiction 
over XI; it vacated its grant of default judgment, and dismissed all claims against XI with 
prejudice.  See ECF Nos. 513 & 514.   
 
 
4 
 
$977,394 to XI, expecting repayment.  He maintained that the loan was not repaid, and 
that the money was used only for the Pandeys’ benefit, thereby resulting in their unjust 
enrichment.3  At trial, Swift sought to impose liability on the Pandeys under a theory of 
either piercing the corporate veil or tort participation. 
 The District Court explained that there are two elements to an unjust enrichment 
claim which a plaintiff must establish: first, that the defendant received and retained a 
benefit, and that retention of that benefit would be unjust; and second, that there was “an 
expected remuneration from the defendant at the time plaintiff performed or conferred a 
benefit on defendant, and [that] the failure of remuneration enriched defendant beyond its 
contractual rights.”  ECF No. 499 at 8 (quoting VRG Corp. v. GKN Realty Corp., 641 
A.2d 519, 526 (N.J. 1994).  At the close of Swift’s evidence at trial, the District Court 
concluded that he had not satisfied the first element as to the Pandeys because he had not 
shown either that Xechem transferred money directly to them, or that XI transferred any 
portion of the money to them.  It further found that Swift had failed to establish the 
second element as to XI, because there was no evidence that Xechem expected 
remuneration from XI.  The District Court therefore found that Swift’s claims for unjust 
enrichment failed against all defendants. 
 
3 Swift also claimed that the Pandeys were unjustly enriched because Xechem paid 
Ramesh Pandey $5,000 based on his agreement to convey 66 2/3% of XI to Xechem, but 
Ramesh failed to transfer the property.  During the trial, the parties reached a settlement 
on this issue pursuant to which the Pandey defendants agreed to transfer any and all 
rights and title in XI to Swift.  See ECF Nos. 497 at 53, 62; 511 at 9; 512.  
 
5 
 
On appeal, Swift claims that the District Court erred by requiring him to show an 
expectation of remuneration at the time that Xechem transferred the money to XI, rather 
than when Xechem discovered “the tort,” i.e., that “the money was stolen.”  Pro Se Br. at 
10-11 (citing Callano v. Oakwood Park Homes Corp., 219 A.2d 332, 334-35 (N.J. Super 
Ct. 1966) (noting that liability for unjust enrichment may be found where “the plaintiff 
expected remuneration from the defendant, or if the true facts were known to plaintiff, he 
would have expected remuneration from defendant, at the time the benefit was 
conferred”).  He also argues that this alleged error had a “domino effect” in that the 
District Court relied on the lack of expected remuneration in declining to pierce the 
corporate veil and hold the Ramseys personally liable for XI’s tort.   
We need not consider whether the District Court erred in its unjust enrichment 
determination against XI because, as previously noted, XI was ultimately dismissed for 
lack of personal jurisdiction.  Moreover, the doctrine of piercing the corporate veil is not 
a theory, but rather an equitable remedy for an underlying corporate wrong.  See ECF No. 
26 at 21-22; see also Verni ex rel. Burstein v. Harry M. Stevens, Inc., 903 A.2d 475, 498 
(N.J. Super. Ct. App. Div. 2006) (noting that “piercing the corporate veil is not 
technically a mechanism for imposing ‘legal’ liability, but for remedying the 
‘fundamental unfairness [that] will result from a failure to disregard the corporate form’”) 
(quoting Trs. of the Nat’l Elevator Indus. Pension, Health Benefit & Educ. Funds v. 
Lutyk, 332 F.3d 188, 193 (3d Cir. 2003)).  Thus, contrary to Swift’s argument on appeal, 
 
6 
 
“before invoking an alter ego theory to pierce the corporate veil, evidence must first 
establish an independent basis to hold the corporation liable.”  Sean Wood, L.L.C. v. 
Hegarty Grp., Inc., 422 N.J. Super. 500, 518, 29 A.3d 1066, 1077 (App. Div. 2011).  
Because the issue of XI’s liability is not before us, we have no occasion to consider the 
propriety of the doctrine of piercing the corporate veil in this case.  However, we will 
modify the District Court’s amended judgment to reflect that its dismissal of the claims 
against XI is without prejudice and that its judgment on the merits is for the Pandeys 
only. Aldossari on Behalf of Aldossari v. Ripp, 49 F.4th 236, 262 (3d Cir. 2022) 
(explaining that a dismissal on jurisdictional grounds must be without prejudice). 
Swift next maintains that the District Court erred in requiring him to show that the 
Pandeys personally benefitted from the $977,394 in order to establish his unjust 
enrichment claims against them.  He had argued that the Pandeys were liable under the 
“tort participation theory,” which recognizes that corporate officers may be liable for 
tortious conduct regardless of whether they personally benefitted from their wrongful 
acts.  See Saltiel v. GSI Consultants, Inc., 788 A.2d 268, 303-04 (N.J. 2002); see also 
Allen v. V & A Bros., 26 A.3d 430, 443 (N.J. 2011) (noting that the “essential predicate 
for application of the [participation] theory is the commission by the corporation of 
tortious conduct”).  But the District Court properly concluded that Swift had failed to 
plead a tort claim, and that the Pandeys could not be held liable under the participation 
theory based on a quasi-contractual claim like unjust enrichment.  ECF no. 499 at 14-15.  
 
7 
 
The New Jersey courts have recognized that “the role of unjust enrichment in the law of 
torts is limited for the most part to its use as a justification for other torts such as fraud or 
conversion,” and that “[t]o establish unjust enrichment as a basis for quasi-contractual 
liability, a plaintiff must show [  ] that the defendant received a benefit.”  Castro v. NYT 
Television, 851 A.2d 88, 98 (N.J. Super. Ct. App. Div. 2004).  Therefore, the District 
Court did not clearly err in dismissing the unjust enrichment claims against the Pandeys.   
Based on the foregoing, we will modify the District Court’s judgment and affirm 
the judgment as modified. 


Robert Swift v. Bhuwan Pandey

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-19-2025 
USA v. Khalil Vance 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"USA v. Khalil Vance" (2025). 2025 Decisions. 135. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/135 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT                        
_______________ 
 
No. 24-1016 
_______________ 
 
UNITED STATES OF AMERICA 
 
v. 
 
KHALIL VANCE, 
Appellant 
_______________ 
 
On Appeal from the United States District Court 
for the District of New Jersey 
(D.C. No. 2:23-cr-00520-001) 
District Judge:  Honorable Stanley R. Chesler 
_______________ 
                               
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
February 18, 2025 
_______________ 
 
Before:  CHAGARES, Chief Judge, BIBAS, and RENDELL, Circuit Judges 
 
(Filed: February 19, 2025) 
_______________ 
 
OPINION* 
_______________ 
 
*  This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
2 
CHAGARES, Chief Judge. 
Khalil Vance pled guilty to one count of unlawful possession of a firearm.  
Pursuant to his plea agreement, Vance agreed to waive his appellate rights if the District 
Court sentenced him to a term of imprisonment of 37 months or less.  Vance was later 
sentenced to 37 months of imprisonment.  He now appeals and argues that the 
Government breached the plea agreement.  Because we conclude that no such breach 
occurred, we hold that the appellate-waiver provision of Vance’s plea agreement is 
enforceable and will affirm.  
I.1 
 Vance was charged in the United States District Court for the District of New 
Jersey with one count of unlawful possession of a firearm and ammunition by a convicted 
felon in violation of 18 U.S.C. § 922(g)(1).  Vance agreed to plead guilty to that charge 
under a plea agreement, in which Vance and the Government agreed that the applicable 
Sentencing Guidelines offense level was 17.  The parties stipulated that they would not 
seek an adjustment or departure from the Guidelines range corresponding to (a) an 
offense level of 17 and (b) “the criminal history category that the sentencing judge 
applie[d]” at sentencing, although either party could request a variance from that range.  
Appendix (“App.”) 68.  The plea agreement also contained a mutual waiver of appellate 
rights:  the Government agreed not to challenge any sentence of 30 months or more, and 
Vance agreed not to challenge any sentence of 37 months or less.   
 
1 We write primarily for the parties, and so we recite only the facts necessary to decide the 
case. 
3 
 At the plea hearing, the District Court reviewed the terms of the plea agreement 
with Vance, including the appellate-waiver provision: 
THE COURT:  Now, in your plea agreement you give up the right to bring 
an appeal or other collateral challenge to your sentence under certain 
circumstances.  In particular, if the sentence does not exceed 37 months you 
give up your right to bring any such challenge.  Do you understand that? 
 
 THE DEFENDANT:  Yes. 
  
 App. 32.  The District Court accepted Vance’s waiver of his appellate rights and, after 
additional questioning, accepted Vance’s guilty plea.   
 At sentencing, the District Court calculated the offense level to be 19 and Vance’s 
criminal history category to be IV, resulting in a Guidelines range of 46 to 57 months of 
imprisonment.  Vance’s counsel asked the District Court to vary downward to “the terms 
of the plea agreement” by using a “sentencing range of 30 to 37 months.”  App. 44.  The 
Government, however, rejected this characterization of the “negotiated . . . range” under 
the plea agreement.  Id.  The Government argued instead that “the terms of th[e] plea 
agreement” yielded a range of 37 to 46 months of imprisonment, which corresponded to 
the parties’ agreed-upon offense level of 17 and the District Court’s calculation of the 
criminal history category.  App. 50.  The Government requested “a sentence of 46 
months [of] imprisonment.”  App. 53.  
 The District Court varied downward and sentenced Vance to a term of 37 months, 
which the District Court described as “the bottom of . . . the guideline range that the 
parties were recommending.”  App. 57.  Vance timely appealed. 
4 
II.2 
 Vance argues that the Government breached the plea agreement by seeking a 
sentence above the parties’ agreed-upon sentencing range, while the Government 
contends that Vance’s appeal is barred by the appellate-waiver provision of the plea 
agreement.  We agree that Vance’s clear, knowing, and voluntary waiver of appellate 
rights under the plea agreement forecloses his appeal. 
 We review the legality of the plea agreement’s appellate-waiver provision de 
novo.  United States v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).  Such provisions 
foreclose an appeal when the issues raised on appeal fall within the scope of the waiver, 
the waiver was knowingly and voluntarily agreed to, and enforcing the waiver would not 
work a miscarriage of justice.  United States v. Banks, 743 F.3d 56, 58 (3d Cir. 2014).  
These waivers are unenforceable, however, “if the government breaches its own 
obligations under [the] plea agreement.”  United States v. Schwartz, 511 F.3d 403, 405 
(3d Cir. 2008).  Because Vance does not contest the scope of the appellate waiver, argue 
that it was not knowing and voluntary, or claim that enforcement would work a 
miscarriage of justice, the only question we must address is whether the Government 
breached the terms of the plea agreement.  
 We apply plain error review to Vance’s claim of breach because he did not 
preserve that issue in the District Court.  A party preserves an issue for appeal by 
“informing the [district] court — when the court ruling or order is made or sought — of 
 
2 The District Court had subject matter jurisdiction under 18 U.S.C. § 3231.  This Court 
has jurisdiction under 18 U.S.C. § 3742(a). 
5 
the action the party wishes the court to take, or the party’s objection to the court’s action 
and the grounds for that objection.”  Puckett v. United States, 556 U.S. 129, 135 (2009) 
(quoting Fed. R. Crim. P. 51(b)).  But Vance “wait[ed] until his appeal to allege a 
violation of his plea agreement,” so that legal issue was not preserved and is subject to 
plain error review by this Court.  United States v. Dahmen, 675 F.3d 244, 247–48 (3d 
Cir. 2012). 
 We construe plea agreements against the Government and focus on “what the 
defendant reasonably understood” when entering his guilty plea, United States v. Miller, 
833 F.3d 274, 284 (3d Cir. 2016), but there is no defensible way to construe Vance’s plea 
agreement as inconsistent with the Government’s conduct at sentencing.  The plea 
agreement prohibited the Government from seeking an adjustment or departure from the 
sentencing range defined by the agreed-upon “Total Offense Level” of 17, and “the 
criminal history category . . . the sentencing judge applie[d].”  App. 68.  Those two inputs 
yielded a range of 37 to 46 months, and the Government sought a sentence within that 
range.  Although Vance claims that he believed the agreement provided for a sentence of 
30 to 37 months based on a lower anticipated criminal history category, that belief is 
neither reasonable nor a basis to ignore the unambiguous appellate-waiver provision in 
the plea agreement, see, e.g., App. 69 (“The [appellate-waiver] provisions of this 
paragraph bind the parties even if the sentencing judge employs a Guidelines analysis 
different from the one above.”).3   
 
3 Even if the parties “anticipated that [Vance] would have a Criminal History Category III,” 
App. 50, that understanding is not reflected in the plea agreement, in which the parties 
6 
 Vance also claims that the Government breached the agreement by emphasizing 
the seriousness of his offense and damaging facts about his criminal history at sentencing.  
But the plea agreement allowed the Government to “provide the sentencing judge . . . all 
law and information relevant to sentencing, favorable or otherwise.”  App. 64.  So 
informing the sentencing judge about the details of Vance’s current offense and past 
conduct — which were relevant to his appropriate sentence — did not breach the deal.  
In sum, we hold that Vance cannot avoid the appellate-waiver provision of his plea 
agreement.  We conclude that there was no breach by the Government and thus the 
District Court did not commit “plain error” at sentencing.  Dahmen, 675 F.3d at 248.  In 
the absence of any apparent breach, we hold that the appellate-waiver provision of 
Vance’s plea agreement is enforceable.  That provision states that Vance agreed to waive 
his right to challenge his sentence “[i]f the term of imprisonment d[id] not exceed 37 
months.”  App. 68.  Vance received a 37-month sentence, App. 58, and therefore his 
current challenge is barred. 
III. 
For the foregoing reasons, we will affirm the judgment of the District Court. 
 
agreed to a sentencing range based on “the criminal history category that the sentencing 
judge applies,” App. 68.  The parties also agreed that they could “seek a variance from that 
Guidelines range” regardless, which further weakens Vance’s claim of breach.  Id. 


USA v. Khalil Vance

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-19-2025 
Lisa Davenport v. Secretary Department of Navy 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"Lisa Davenport v. Secretary Department of Navy" (2025). 2025 Decisions. 137. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/137 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
NOT PRECEDENTIAL 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT  
_____________ 
No. 23-2621 
_____________ 
 
LISA M. DAVENPORT, 
      Appellant 
 
v.  
 
SECRETARY DEPARTMENT OF THE NAVY 
 
____________ 
On Appeal from the United States District Court 
for the Middle District of Pennsylvania 
(D.C. Civil No. 1:16-cv-00494) 
District Judge:  Honorable Jennifer P. Wilson 
____________ 
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) 
February 18, 2025 
___________ 
Before:  CHAGARES, Chief Judge, BIBAS and RENDELL, Circuit Judges. 
 
(Opinion filed: February 19, 2025) 
 
____________ 
 
OPINION* 
____________ 
 
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not 
constitute binding precedent. 
2 
CHAGARES, Chief Judge. 
 Lisa Davenport was employed by the United States Navy as a Supervisory 
Security Specialist.  After the Navy terminated her employment, Davenport filed a 
lawsuit alleging that the Navy committed disability discrimination in violation of the 
Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. (“Rehabilitation Act”).  The District 
Court granted summary judgment in the Navy’s favor.  Davenport thereafter filed a 
motion for relief from the court’s judgment under Federal Rule of Civil Procedure 60(b), 
which the court denied.  Davenport appeals the denial of her motion for post-judgment 
relief.  Because the District Court did not abuse its discretion in denying Davenport’s 
motion, we will affirm the court’s order.   
I.  
 We write for the benefit of the parties and so recite only those facts pertinent to 
our decision.  Davenport began work with the Navy in 2006 as a Security Specialist and 
was promoted to serve as a Supervisory Security Specialist in 2011.  Several months after 
her promotion, Davenport received notice that her position was eligible for situational 
telework according to the policy of her then-existing command organization.  In October 
of 2012, however, the Navy reassigned Davenport’s job function to a different command 
organization that did not approve telework for Supervisory Security Specialists.  At about 
this time, Davenport experienced worsening symptoms of a chronic medical condition.  
She requested that the Navy accommodate her disability in part by allowing her to 
telework on an occasional basis.  Davenport’s supervisor concluded that Davenport could 
3 
not perform the essential functions of her job as a Supervisory Security Specialist while 
teleworking and denied her accommodation request.   
 Beginning on March 1, 2013, Davenport was unable to report to work.  On March 
10, 2013, she requested reconsideration of the denial of her accommodation request.  At 
about this time, in a letter apparently submitted to the Navy in support of Davenport’s 
request for reconsideration, Davenport’s doctor stated that Davenport was “experiencing 
severe exacerbation of her symptoms and [was] unable to perform her job description.”  
Davenport v. Mabus et al., No. 16-cv-00494-JPW, ECF 93-1 at 44.  On April 5, 2013, a 
supervisor denied Davenport’s request for reconsideration on the basis that there was no 
possible accommodation that would allow Davenport to perform the essential functions 
of her job or any other job available within her command organization.  The Navy 
terminated Davenport’s employment on September 27, 2013, after she was continuously 
unable to report to work for more than six months.       
 Davenport filed this lawsuit after an unsuccessful appeal of her termination to the 
Merit Systems Protection Board (“MSPB”) and the Equal Employment Opportunity 
Commission (“EEOC”).1  She alleges that the Navy violated the Rehabilitation Act by 
discharging her because of her disability and by failing to provide a reasonable 
accommodation.  The District Court determined that Davenport had not established a 
prima facie case of disability discrimination or failure to accommodate and granted 
summary judgment in the Navy’s favor.  Davenport thereafter filed a motion for post-
 
1 An employee may petition the EEOC to review the decision of the MSPB in a 
matter involving alleged discrimination.  See 5 U.S.C. § 7702(b)(1).     
4 
judgment relief under Rules 60(b)(3) and (b)(6) of the Federal Rules of Civil Procedure, 
alleging that the Navy had failed to disclose pertinent legal authority to the District Court.  
The District Court denied the motion.  Davenport timely appealed the court’s order 
denying her motion for post-judgment relief.2          
II.3 
Our review of a district court’s denial of a motion for relief under Rule 60(b) is for 
abuse of discretion.  Cox v. Horn, 757 F.3d 113, 118 (3d Cir. 2014).  A court’s decision 
is an abuse of discretion if it rests on “a clearly erroneous finding of fact, an erroneous 
conclusion of law, or an improper application of law to fact.”  Id. (citing Morris v. Horn, 
187 F.3d 333, 341 (3d Cir. 1999)).      
Rule 60(b)(3) provides for post-judgment relief in case of “fraud . . ., 
misrepresentation, or misconduct by an opposing party.”  A court may grant relief under 
Rule 60(b)(3) only if the movant “establish[es] that the adverse party engaged in fraud or 
other misconduct, and that this conduct prevented the moving party from fully and fairly 
presenting his case.”  Stridiron v. Stridiron, 698 F.2d 204, 207 (3d Cir. 1983).  Davenport 
also sought relief under Rule 60(b)(6), “a catch-all provision that authorizes a court to 
grant relief from a final judgment for ‘any . . . reason’ other than those listed elsewhere in 
 
2 Davenport has not appealed the District Court’s order granting summary 
judgment in the Navy’s favor.  Because “an appeal from denial of Rule 60(b) relief does 
not bring up the underlying judgment for review,” our review is confined to the District 
Court’s order denying post-judgment relief.  Browder v. Dir., Dep’t of Corr., 434 U.S. 
257, 263 n.7 (1978).   
 
3 The District Court had jurisdiction under 28 U.S.C. § 1331.  Our Court has 
appellate jurisdiction pursuant to 28 U.S.C. § 1291.    
5 
the Rule.”  Cox, 757 F.3d at 120 (quoting Fed. R. Civ. P. 60(b)(6)).  Relief under Rule 
60(b)(6) is an extraordinary remedy dispensed only in “extraordinary circumstances.”  
See id.   
The gravamen of Davenport’s request for relief is that the Navy did not disclose to 
the District Court four authorities that, in Davenport’s view, were adverse to the Navy’s 
defense of her claims:  an executive order issued on July 26, 2000, titled “Requiring 
Federal Agencies To Establish Procedures to Facilitate the Provision of Reasonable 
Accommodation,” see Exec. Order No. 13164, 65 Fed. Reg. 46565 (July 28, 2000); 
policy guidance issued by the EEOC interpreting the executive order of July 26, 2000, 
see EEOC, Policy Guidance on Executive Order 13164: Establishing Procedures to 
Facilitate the Provision of Reasonable Accommodation (October 20, 2000); and two 
documents setting forth the Navy’s policy regarding accommodations for people with 
disabilities, see Deputy Chief Mgmt. Officer of Dep’t of Def., Administrative Instruction 
(Oct. 24, 2013); Dep’t of the Navy, Program Manual for Reasonable Accommodation 
(March 2022).  Davenport suggests that disclosure of these policy statements would have 
helped her establish that her approval for situational telework in 2011 was, in fact, a grant 
of a reasonable accommodation.   
Davenport has provided no basis for concluding that the Navy’s purported failure 
to disclose these policy statements prevented her from fully and fairly presenting her 
case.  Nor has she presented any basis for the extraordinary remedy allowed by Rule 
60(b)(6).  The policy statements Davenport identifies have no discernible relevance to the 
issue the District Court considered dispositive — whether she was fit to perform the 
6 
essential functions of her job as a Supervisory Security Specialist — or to any other 
element of her prima facie cases of disability discrimination and failure to accommodate.  
We conclude, therefore, that the District Court did not abuse its discretion in denying 
Davenport’s motion for post-judgment relief.   
III. 
For the foregoing reasons, we will affirm the District Court’s order denying 
Davenport’s motion for post-judgment relief under Rule 60(b).   


Lisa Davenport v. Secretary Department of Navy

2025 Decisions 
Opinions of the United 
States Court of Appeals 
for the Third Circuit 
2-20-2025 
In Re: Pet Gifts USA, LLC 
Follow this and additional works at: https://digitalcommons.law.villanova.edu/thirdcircuit_2025 
Recommended Citation 
"In Re: Pet Gifts USA, LLC" (2025). 2025 Decisions. 147. 
https://digitalcommons.law.villanova.edu/thirdcircuit_2025/147 
This February is brought to you for free and open access by the Opinions of the United States Court of Appeals for 
the Third Circuit at Villanova University Charles Widger School of Law Digital Repository. It has been accepted for 
inclusion in 2025 Decisions by an authorized administrator of Villanova University Charles Widger School of Law 
Digital Repository. For more information, please contact reference@law.villanova.edu. 
 
 
NOT PRECEDENTIAL 
 
 
UNITED STATES COURT OF APPEALS 
FOR THE THIRD CIRCUIT 
_____________ 
 
Nos. 23-2794, 23-2876 
_____________ 
 
 
In re: PET GIFTS USA, LLC, 
   Petitioner 23-2794 
 
 
 
PET GIFTS USA, LLC, 
    Appellant 23-2876 
 
v. 
 
IMAGINE THIS COMPANY LLC, TWELVE INC, 
BEVERLY MOSS, MICHAEL MOSS 
 
_____________________________________ 
 
On Appeal from the United States District Court for the  
District of New Jersey 
(District Court No. 3:14-cv-03884) 
District Court Judge: Honorable Peter G. Sheridan 
_____________________________________ 
 
Submitted Pursuant to Third Circuit LAR 34.1(a) 
February 19, 2025 
 
(Filed: February 20, 2025) 
 
Before:  CHAGARES, Chief Judge, BIBAS and RENDELL, Circuit Judges. 
2 
 
_________ 
O P I N I O N* 
_________ 
RENDELL, Circuit Judge. 
Appellant Pet Gifts USA, LLC challenges the District Court’s refusal to direct 
entry of final judgment under Federal Rule of Civil Procedure 54(b). But without a final 
judgment, we lack jurisdiction over this appeal. And because Appellant has not shown a 
“clear abuse of discretion or clear error of law,” United States v. Wright, 776 F.3d 134, 
146 (3d Cir. 2015), we will deny its mandamus petition.  
I. 
Appellant sued Appellees Imagine This Company, LLC, Twelve Inc, and Beverly 
and Michael Moss in May 2014 for state-law causes of action related to Appellees’ 
manufacture of pet-themed car decal magnets. In essence, Appellant accused Appellees 
of stealing Appellant’s designs. Appellees counterclaimed that the designs were theirs 
and Appellant’s accusations defamed them.  
The District Court dismissed most of Appellant’s claims under Federal Rule of 
Civil Procedure 12(b)(6) for failure to state a claim, then granted summary judgment to 
Appellees on the remainder . It declined Appellant’s request to convert its ruling to a 
“final judgment” under Federal Rule of Civil Procedure 54(b), which would have allowed 
Appellant to take an immediate appeal. The parties then prepared for trial on Appellees’ 
counterclaims.  
 
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 
constitute binding precedent. 
3 
 
Shortly before trial, the parties reached an agreement under which Appellees’ 
counterclaims would be dismissed “without prejudice” but could be refiled after “final 
resolution of [an] Appeal, whether resolved by withdrawal, dismissal, affirmance or 
reversal.” Appx 305. The agreement also stipulated that the statute of limitations would 
“not run” in the interim. Appx 305-06. The stated purpose of this arrangement was to 
permit “an immediate appeal.” Appx 305. The District Court approved the agreement and 
closed the case. 
Appellant then filed its first appeal from the District Court’s orders dismissing and 
granting summary judgment on its claims, and Appellees cross-appealed on a fees issue. 
Because Appellees’ counterclaims had been dismissed without prejudice and could be 
refiled, a prior panel of this Court ruled that there was no final order of the District Court 
and dismissed both appeals for lack of jurisdiction. The order stated that dismissal was 
“without prejudice to any party’s opportunity to reapply to the District Court for a 
determination and direction under Fed. R. Civ. P. 54(b),” but expressed “no opinion as to 
whether the determination and direction should be made, this being a matter within the 
discretion of the District Court.” Pet Gifts USA, LLC v. Imagine This Co., LLC, Nos. 19-
1312, 19-2892, 2021 WL 3878387, at *1 (3d Cir. May 27, 2021).  
For the next six months, no request under Rule 54(b) was made, and no further 
activity occurred in the District Court. Appellant then filed a motion to “Dismiss 
[Appellees’] Counterclaim[s] with Prejudice for Lack of Prosecution.” Dist. Ct. ECF No. 
160 at 1. The motion did not contain a request for entry of final judgment under Rule 
54(b), although Appellant insisted at a subsequent conference that such a request was 
4 
 
“included.” Tr. Sept. 21, 2022, p. 9. The District Court denied the motion because “there 
[was] no actively pending claim for the Court to dismiss.” Id. at 18. It further stated that a 
request for entry of final judgment under Rule 54(b) would have been “more apt,” but 
such a request had not been made. Id. 
Three months later, Appellant made the request for entry of final judgment under 
Rule 54(b). The District Court denied it on the grounds that: (1) piecemeal appeals of the 
claims and counterclaims would be inefficient; (2) Appellant had unreasonably delayed 
in presenting the request; and (3) the lawsuit was by then more than six years old. 
Appellant now seeks review of the District Court’s denial of its request for entry 
of final judgment under Rule 54(b). Appellant has filed both a direct appeal from that 
decision and a petition for a writ of mandamus.  
II. 
A. 
Other than in limited circumstances, an appeal may only be taken from a “final 
decision[].” 28 U.S.C. § 1291. To be final, a decision must “end[] the litigation on the 
merits and leave[] nothing for the court to do but execute the judgment.” Gulfstream 
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988). An order that leaves 
some claims dismissed without prejudice to being refiled is “[o]rdinarily” not a final 
decision. Doe v. Hesketh, 828 F.3d 159, 164 (3d Cir. 2016). Exceptions to this general 
rule are “where a claim dismissed without prejudice cannot be re-filed” due to the statute 
of limitations having run, or where a claimant “renounces any intention to reinstate 
litigation on a claim dismissed without prejudice.” Id. Neither exception is applicable 
5 
 
here. Thus, as we held in the previous appeal filed in this case, the order dismissing 
Appellees’ counterclaims without prejudice is not reviewable absent the District Court 
directing entry of final judgment under Rule 54(b). See Fed. Home Loan Mortg. Corp. v. 
Scottsdale Ins. Co., 316 F.3d 431, 440 (3d Cir. 2003). Had the District Court entered such 
a final judgment, we would have jurisdiction over an appeal. But a district court’s refusal 
to make that certification under Rule 54(b) is by definition not final and therefore not 
appealable. Makuc v. Am. Honda Motor Co., 692 F.2d 172, 173 (1st Cir. 1982); see also 
Saber v. FinanceAmerica Credit Corp., 843 F.2d 697, 702 (3d Cir. 1988). 
Appellant also asks us to take this appeal under 28 U.S.C. § 1292(b), which allows 
district courts to certify some orders for interlocutory review. But that provision is 
inapplicable because the District Court has not entered such a certification, and, without 
it, “we do not have authority to hear a question pursuant to § 1292(b).” Commonwealth 
Ins. Co. v. Underwriters, Inc., 846 F.2d 196, 199 (3d Cir. 1988).   
For these reasons, we lack jurisdiction over Appellant’s appeal.  
B. 
Appellant alternatively asks for a writ of mandamus requiring the District Court to 
direct entry of final judgment under Rule 54(b). Mandamus “relief, however, is 
extraordinary, and is appropriate only upon a showing of (1) a clear abuse of discretion or 
clear error of law; (2) a lack of an alternate avenue for adequate relief; and (3) a 
likelihood of irreparable injury.” Wright, 776 F.3d at 146.  
Appellant has not met that high bar. Decisions under Rule 54(b) are committed to 
the discretion of the District Court. Fed. Home Loan, 316 F.3d at 440. Relevant factors 
6 
 
include, but are not limited to, “whether the claims under review [are] separable from the 
others remaining to be adjudicated and whether the nature of the claims already 
determined [is] such that no appellate court would have to decide the same issues more 
than once even if there were subsequent appeals.” Curtiss-Wright Corp. v. Gen. Elec. 
Co., 446 U.S. 1, 8 (1980).  
It was not a clear abuse of discretion for the District Court to view entry of final 
judgment under Rule 54(b) as inappropriate, given that Appellees’ counterclaims were 
mirror images of Appellant’s primary claims. Both asserted original ownership of the 
magnets’ designs, meaning separate appeals would have to confront that “same issue[].” 
Curtiss-Wright Corp., 446 U.S. at 8.  
Appellant urges it was wrong for the District Court to base its decision, in part, on 
the long delay between the dismissal of the prior appeal and Appellant’s eventual request 
for a Rule 54(b) order. We disagree. We have allowed district courts to base Rule 54(b) 
decisions on any relevant “miscellaneous factors,” including “delay.” Berckeley Inv. 
Grp., Ltd. v. Colkitt, 455 F.3d 195, 203 (3d Cir. 2006). Given the prior panel’s express 
suggestion that Appellant seek entry of judgment under Rule 54(b), it was not a clear 
abuse of discretion for the District Court to take account of Appellant’s long delay in 
doing so. See Schaeffer v. First Nat’l Bank of Lincolnwood, 465 F.2d 234, 235 (7th Cir. 
1972) (refusing Rule 54(b) order for party’s “lack of diligence” in seeking it).  
Lastly, Appellant complains it is in a “finality trap” where no appeal is possible. 
Appellant’s Br. 6. Assuming this to be true, and given the unique facts of this case, we do 
not find it a sufficient basis for the extraordinary remedy of mandamus. Appellant 
7 
 
challenges only the District Court’s Rule 54(b) determination, and that decision was not 
clearly unreasonable. We need not opine on all the steps that led to Appellant’s 
predicament or who should be blamed for each. It suffices to observe that the District 
Court was not clearly mistaken in viewing Appellant as sharing some responsibility. 
Accordingly, the high bar for mandamus relief has not been met.  
III. 
For these reasons, we will dismiss the appeal for lack of jurisdiction and deny the 
mandamus petition.  


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Luis Hipolito-De La Rosa v. Attorney General United States of America