MEMORANDUM OPINIONAND ORDER
W. KEITH WATKINS, Chief District Judge.
Plaintiffs bring this action pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001-1461. Based upon a referral pursuant to 28 U.S.C. § 636(b), on July 28, 2015, the Magistrate Judge entered a Report and Recommendation on Defendants' pending motion to dismiss the three counts in the Complaint. (Doc. # 34.) The Magistrate Judge recommended that this court grant Defendants' motion to dismiss Count One with prejudice and deny Defendants' motion to dismiss Counts Two and Three. Plaintiffs and Defendants filed timely objections to the proposed findings and recommendations. (Docs. # 35, 36.) On September 30, 2015, an Order was entered, adopting in part and rejecting in part the Recommendation of the Magistrate Judge. This opinion explains the reasoning for the court's ruling. For the reasons that follow, the Recommendation that Defendants' motion to dismiss Count One be granted will be rejected, the Recommendation that Defendants' motion to dismiss Counts Two and Three be denied will be adopted, and Defendants' motion to dismiss will be denied.
I. JURISDICTION AND VENUE
The court exercises subject-matter jurisdiction over this ERISA action pursuant to 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). The parties do not contest personal jurisdiction or venue.
II. STANDARD OF REVIEW
A party's timely written objections to a magistrate judge's report and recommendation require this court's de novo review of those portions of the report to which the party objects. See 28 U.S.C. § 636(b). After completing its review, the court may accept, reject, or modify the report, in whole or in part. See id.
The court reviews the Report and Recommendation de novo, applying the same standard as the magistrate judge applied. When evaluating a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must take the facts alleged in the complaint as true and construe them in the light most favorable to the plaintiff. Resnick v. AvMed, Inc., 693 F.3d 1317, 1321-22 (11th Cir. 2012). Rule 12(b)(6) review also includes consideration of any exhibits attached to the complaint. Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). To survive Rule 12(b)(6) scrutiny, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[F]acial plausibility" exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556).
III. BACKGROUND1
Plaintiffs Dave Bryant and Vicki Bryant are long-time employees of Defendant Community Bankshares, Inc. ("Bankshares"). They thought that their investment in their employer's Employee Stock Option Plan (the "ESOP" or "Plan") would pay off during their retirement, but in January 2010, Bankshares's primary asset — Community Bank & Trust — collapsed.2 Because the Plan was invested primarily in Bankshares's stock, it was rendered worthless, and Plaintiffs received little more than pennies on the dollar. In this lawsuit against Bankshares and its fiduciaries, Plaintiffs contend that those pennies could have been worth dimes, or maybe more, had the Plan diversified their investments as they had requested.
Plaintiffs bring claims for violations of ERISA, which undisputedly governs the Plan.3 In their first cause of action, Plaintiffs allege that they properly invoked an unqualified right under the terms of the Plan to redirect a percentage of their Plan holdings in Bankshares's stock to their individual retirement accounts, but that the Plan administrator failed to follow their investment instructions. The Complaint invokes 29 U.S.C. § 1132(a)(1)(B)'s provision permitting plan participants "to enforce [their] rights under the terms of the plan."4 § 1132(a)(1)(B). Plaintiffs bring a second claim alleging a breach of a duty of care pursuant to 29 U.S.C. §§ 1109, 1132(a)(2), and 1132(a)(3). The gist of this second claim is that the Plan imposed upon its fiduciaries an obligation to diversify Plaintiffs' investments upon their request and that the fiduciaries failed to administer the Plan in accordance with its mandatory provisions. Finally, Plaintiffs § 1132(g)(1) as a third cause of action. (See Compl. ¶¶ 26-32.) Consistent with the Report and Recommendation's labeling, these claims will be referred as to Count One, Count Two, and Count Three.
Defendants moved to dismiss the Complaint under Rule 12(b)(6). Pursuant to a referral under § 636, the Magistrate Judge entered a Report and Recommendation on the motion to dismiss, recommending that Defendants' motion to dismiss be granted with prejudice as to Count One, but that the motion otherwise be denied. Neither party obtained full satisfaction from the Report and Recommendation; therefore, both Plaintiffs and Defendants have filed objections to the Recommendation.
IV. DISCUSSION
A. Count One: § 1132(a)(1)(B)
The Recommendation evaluated Plaintiffs' § 1132(a)(1)(B) claim under the Eleventh Circuit's six-step standard governing judicial review of a plan administrator's benefits decision.5 (Doc. # 34, at 12-13.) Here is that standard:
(1) [a]pply the de novo standard to determine whether the claim administrator's benefits-denial decision is "wrong" (i.e., the court disagrees with the administrator's decision); if it is not, then end the inquiry and affirm the decision.
(2) If the administrator's decision in fact is "de novo wrong," then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision.
(3) If the administrator's decision is "de novo wrong" and he was vested with discretion in reviewing claims, then determine whether "reasonable" grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard).
(4) If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest.
(5) If there is no conflict, then end the inquiry and affirm the decision.
(6) If there is a conflict, the conflict should merely be a factor for the court to take into account when determining whether an administrator's decision was arbitrary and capricious.
Blankenship v. Metro. Life Ins. Co., 644 F.3d 1350, 1355 (11th Cir. 2011). The first four steps of the standard resolve the motion to dismiss. Because the Plan documents and the Plan administrator's decisions are attached to the Complaint, there is a sufficient record to apply the six-step standard on Rule 12(b)(6) review.
1. Step One
At step one, the court considers whether the Plan administrator's interpretation of the Plan was "wrong." "[W]rong" is "the conclusion a court reaches when, after reviewing the plan documents and disputed terms de novo, the court disagrees with the claims administrator's plan interpretation." HCA Health Servs. of Ga., Inc., 240 F.3d 982, 994 n.23 (11th Cir. 2001), overruled on other grounds by Doyle v. Liberty Life Assur. Co. of Boston, 542 F.3d 1352 (11th Cir. 2008). This review should be "based on the record before the administrator at the time its decision was made." Glazer v. Reliance Standard Life Ins. Co., 524 F.3d 1241, 1246 (11th Cir. 2008).
The Recommendation found that the Complaint "does not contain even conclusory allegations that the decision was `d[e] novo wrong.'" (Doc. # 34, at 15-16.) The court disagrees and finds that the Complaint and attached documents contain sufficient predicate facts to support an allegation that the Plan administrator's decision was "de novo wrong."
Plaintiffs rely on § 8.3 of the Plan for their § 1132(a)(1)(B) claim. Section 8.3 of the Plan uses the imperative command "shall" three times when defining an eligible participant's right to diversify a percentage of his or her investments in the Plan. First, the Plan provides that "[e]ach Eligible Participant shall, during any Qualified Election period, be permitted to diversify the investment of a portion of his Employer Contribution Account in accordance with the provisions of this Section 8.3." Second, the Plan spells out that an "Eligible Participant electing to diversify his Account shall direct the Plan Administrator to distribute (or transfer to an Individual Retirement Account or another qualified retirement plan) shares of Company Stock, rounded to the nearest whole share, equal to that portion of the Participant's Employer Contribution Account that is covered by the election." Third, the Plan directs that "[s]uch transfer or distribution shall be made no later than ninety (90) days after the last day of the Qualified Election Period during which such participant directed such investment." (Plan, Art. VIII, § 8.3 (emphases added).)
Section 8.3 is couched in mandatory terms that are unambiguous and leave the Plan administrator no option but to implement a proper election to diversify investments. Plaintiffs allege that they made just such a proper election, and the Plan administrator's decision reciting the reasons for rejecting Plaintiffs' elections does not question the validity of those elections. More specifically, Plaintiffs allege that, in April 2009, they exercised the "right to diversify" their investments under § 8.3, that their elections complied with the strictures of § 8.3, and that, therefore, the Plan administrator had a contractual duty to "diversify a portion o[f] [their] account" within ninety days of their election but refused to do so. (Compl. ¶¶ 15-20; see also ESOP Investment Diversification Notices, which Plaintiffs completed to invoke the Plan's provisions governing participants' rights concerning the diversification of their investments.) In short, Plaintiffs argue that, because their elections to diversify their investments satisfied the requirements of § 8.3, the Plan administrator's decision to reject each Plaintiff's election was wrong based upon the mandates of § 8.3.
The foregoing facts, which are gleaned from the Complaint's allegations and the exhibits attached to the Complaint, plead enough to demonstrate, for purposes of defeating the motion to dismiss, that the Plan required an election period to permit participants to diversify a percentage of their investments, that Plaintiffs (as eligible participants) properly made an election, and that the Plan administrator wrongly failed to diversify their investments in the manner they elected. See generally Iqbal, 556 U.S. at 678 (explaining that to survive Rule 12(b)(6) scrutiny, "a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" (quoting Twombly, 550 U.S. at 570)). It is not fatal to Plaintiffs' claim that the Complaint omits the phrase "de novo wrong."
2. Step Two
"Denial of benefits under an ERISA plan that gives the plan administrator discretionary authority to determine eligibility for benefits or to construe the terms of the plan is reviewed by the district court for abuse of that discretion." Shannon v. Jack Eckerd Corp., 113 F.3d 208, 210 (11th Cir. 1997) (citing Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 112-13 (1989)); see also Blankenship, 644 F.3d at 1355 n.5 ("In ERISA cases, the phrases `arbitrary and capricious' and `abuse of discretion' are used interchangeably."). The Eleventh Circuit has provided parameters as to the type of language that is necessary to imbue the Plan administrator with the requisite discretion.
An administrator's decision will be subject to the arbitrary-and-capricious standard of review where the plan provides that the administrator "shall have discretionary authority to 1) interpret policy provisions, 2) make decisions regarding eligibility for coverage and benefits, and 3) resolve factual questions relating to coverage benefits." HCA Health Servs. of Ga., Inc., 240 F.3d at 995. The Eleventh Circuit also has found similar plan language that gave the administrators "full and exclusive authority to determine all questions of coverage and eligibility," as well as "full power to construe the provisions of [the] Trust" conferred the requisite discretionary authority on the plan administrator. Guy v. Se. Iron Workers' Welfare Fund, 877 F.2d 37, 38-39 (11th Cir. 1989).
Section 7.3 provides that the Plan administrator "shall have the sole and exclusive discretionary power to construe and interpret the Plan, and to determine all questions that may arise thereunder . . ., including the amount of benefits to which any Participant or beneficiary may become entitled hereunder . . . ." (Plan, Art. VII, § 7.3.) The Recommendation appropriately relies on § 7.3 for its finding that the Plan administrator was vested with "discretionary authority to review claims." (Doc. # 34, at 18.) Accordingly, because 7.3 gives full discretion and authority to the Plan administrator to determine eligibility for benefits and to construe and interpret all terms and provisions of the Plan, the court finds that arbitrary-and-capricious review applies.
Plaintiffs argue, however, that the Plan administrator had no discretion under the mandatory terms of § 8.3 to refuse to diversify their investments upon their proper election and that, therefore, the inquiry under the six-step standard should end at step two. See Blankenship, 644 F.3d at 1355 ("(2) If the administrator's decision in fact is `de novo wrong,' then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision."). The argument is not without curb appeal, as § 8.3's terms, once satisfied, are compulsory on the Plan administrator. But the court is reluctant to deny Defendants review under the deferential arbitrary-and-capricious standard when the Plan affords broad discretion overall to the Plan administrator. There are instances, for example, where the Plan administrator's discretion to interpret policy provisions appropriately could come into play even in light of the mandatory language in § 8.3. For example, the Plan administrator would have discretion to determine whether a Plan participant is eligible to make an election under § 8.3. Cf. Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 660 (7th Cir. 2005) (recognizing the fiduciary's discretion to deny the plaintiffs' request under a similar plan provision that gave a qualifying participant the right to diversify his or her benefits where the plaintiffs had not attained the age of fifty-five as required to make an election). Hence, the court turns to whether the Plan administrator's decisions were arbitrary and capricious.
3. Step Three
In step three, the court must decide whether the Plan administrator's resolution of Plaintiffs' claims was "arbitrary and capricious" or "an abuse of discretion." Wilson v. Walgreen Income Prot. Plan for Pharmacists & Registered Nurses, Walgreen Co., 942 F.Supp.2d 1213, 1246 (M.D. Fla. 2013). Although under this standard the Plan administrator's interpretation of the Plan is entitled to a high level of deference, the standard is not toothless. "[A] deferential standard of review does not mean that the plan administrator will prevail on the merits." Conkright v. Frommert, 559 U.S. 506, 521 (2010). If "no reasonable basis exists for the decision," then the decision is arbitrary and capricious and cannot stand. Shannon, 113 F.3d at 210. A plan administrator acts arbitrarily and capriciously, for example, when he or she "construe[s] provisions of a plan in a way that clearly conflicts with the plain language of the Plan" or that "renders nugatory other provisions of the Plan." Tapley v. Locals 302 & 612 of the Int'l Union of Operating Eng'r-Emp'rs Constr. Indus. Ret. Plan, 728 F.3d 1134, 1139 (9th Cir. 2013) (internal citations, brackets, and quotation marks omitted). Moreover, generally, "[r]eview of the plan administrator's denial of benefits is limited to consideration of the material available to the administrator at the time it made its decision." Blankenship, 644 F.3d at 1354.
The Recommendation finds that the Plan administrator offered two reasons for denying Plaintiffs' elections to diversify their investments and that these reasons, "each separately and alternatively, form a reasonable basis for the decision" of the Plan administrator to refuse to honor Plaintiffs' requests to diversify their investments. (Doc. # 34, at 20.) Each reason is discussed in turn and is rejected as an abuse of the Plan administrator's discretion.
The first reason the Recommendation points to is the Plan administrator's decision that, in April 2009, based upon the plummeting value of Bankshares's stock, honoring Plaintiffs' diversification requests would have had a detrimental effect on Plan participants as a whole. (See Doc. # 34, at 19-20 ("Bankshares had a fiduciary responsibility to act for the benefit of all participants and it could not honor the plaintiffs' April 2009 diversification elections to the detriment of other Plan participants.").) It is true that the Plan administrator has an overarching duty to discharge its duties "solely in the interest of the Participants" (Plan, Art. VIII, § 8.4), but neither the Plan administrator nor Defendants have cited any authority or Plan provision that gives the Plan administrator the option to override mandatory Plan terms when the Plan administrator believes that doing so would protect the greater good of Plan participants.
More specifically, the Plan administrator does not point to any provision in the Plan that permitted it to make an exception to an eligible participant's right under § 8.3 to make an election to diversify investments when, as the Plan administrator says, the value of the company's stock had "dramatically declined in value." (Doc. # 34, at 8.) To the contrary, the Plan expressly provides that the "Plan Administrator shall have no power to add to, subtract from or modify any of the terms of the Plan, or to change or add to any benefits provided by the Plan, or to waive or fail to apply any requirements of eligibility for a benefit under the Plan." (Plan, Art. VII, § 7.3 (emphasis added).) As has been explained, the Plan spells out clearly that the Plan administrator has a contractual obligation to abide by an eligible participant's proper election under § 8.3 to diversify his or her investments. If the Plan administrator could supersede the mandatory provisions of § 8.3 and deny an eligible participant's right to diversify his or her investments, that action, in effect, would constitute an amendment of the Plan in contravention of § 7.3. On the Rule 12(b)(6) documents and briefing, Plaintiffs have made a plausible showing that the Plan administrator's interpretation of the Plan is inconsistent with the plain language of § 8.3, and, therefore, that the Plan administrator's interpretation does not provide a reasonable basis for the Plan Administrator's denial of Plaintiffs' rights to diversify their investments.6
The second reason the Recommendation relies upon is the Plan administrator's conclusion that Plaintiffs "ultimately elected for their shares to remain invested in the Plan." (Doc. # 34, at 20.) In the Plan administrator's words, each Plaintiff, in November 2009, "revoked his [or her] April 2009 Diversification Request and rendered it null and void. There is no outstanding diversification request by" either Plaintiff. (Doc. # 1-10, at 6; Doc. # 1-11, at 6.) The November 2009 revocations post-date the Plan administrator's contractual deadline for implementing Plaintiffs' prior April 2009 diversification requests and, thus, regardless of the validity of the revocations, were not "material available to the administrator at the time it made its decision." Blankenship, 644 F.3d at 1354. Defendants have provided no authority or reasoned explanation that justifies the Plan administrator's post-hoc reliance on the November 2009 revocations as supplying the reason for the Plan administrator's rejection of the April 2009 diversification requests.
In sum, Plaintiffs plausibly allege that no reasonable basis exists for the Plan administrator's refusal to honor Plaintiffs' April 2009 diversification requests. The factual content gathered from the Complaint and its attachments permits the reasonable inference that the Plan administrator applied § 8.3 in a manner that "clearly conflicts with [the Plan's] plain language" and that "render[s] nugatory" those provisions that prohibit a plan administrator from modifying the terms of the Plan. Tapley, 728 F.3d at 1139. Moreover, the Plan administrator's decision that Plaintiffs revoked their diversification requests in November 2009 is not based upon material that was before the Plan administrator at the time it denied Plaintiffs' April 2009 diversification requests. The analysis proceeds to step four.
4. Step Four
Because the Complaint and attached documents plausibly support the conclusion that no reasonable grounds exist for the Plan administrator's decision to deny Plaintiffs' requests to diversify their investments, the inquiry ends. In other words, there are plausible allegations to support the reversal of the Plan administrator's decision. See Blankenship, 644 F.3d at 1355 ("If no reasonable grounds exist, then end the inquiry and reverse the administrator's decision.").
5. Summary
Based upon the record at present, the Complaint's allegations and attachments are sufficient to survive the judicially deferential arbitrary-and-capricious standard of review. Plaintiffs have made a sufficient demonstration that the Plan administrator's decision is both de novo wrong and arbitrary and capricious. It may be that other documents or arguments not presented during Rule 12(b)(6) review support a contrary conclusion, but for now Count One goes forward. Defendants' motion to dismiss Count One is due to be denied.
B. Counts Two and Three
The Magistrate Judge recommends that Defendants' motion to dismiss be denied as to Counts Two and Three. The court carefully has reviewed Defendants' objections to that conclusion and finds that the Recommendation is correct. Accordingly, the Recommendation is due to be adopted as to Counts Two and Three, and Defendants' motion to dismiss Counts Two and Three is due to be denied.
V. CONCLUSION
For these reasons, in a prior Order, the Recommendation was adopted in part and rejected in part. It is further ORDERED as follows:
1. Plaintiffs' Objection (Doc. # 36) is SUSTAINED.
2. Defendants' Objection (Doc. # 35) is OVERRULED.
3. Defendants' motion to dismiss (Doc. # 14) is DENIED.
4. This case is REFERRED back to the Magistrate Judge for further proceedings.
CIVIL APPEALS JURISDICTION CHECKLIST
1. Appealable Orders: Courts of Appeals have jurisdiction conferred and strictly limited by statute:
(a) Appeals from final orders pursuant to 28 U.S.C. § 1291: Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28 U.S.C.§ 158, generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1368 (11th Cir. 1983). A magistrate judge's report and recommendation is not final and appealable until judgment thereon is entered by a district court judge. 28 U.S.C. § 636(c).
(b) In cases involving multiple parties or multiple claims, a judgment as to fewer than all parties or all claims is not a final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b). Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judg ment which resolves all issues except matters, such as attorneys' fees and costs, that are collateral to the merits, is immediately appealable. Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S.Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988); LaChance v. Duffy's Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).
(c) Appeals pursuant to 28 U.S.C. § 1292(a): Appeals are permitted from orders "granting, continuing, modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions . . ." and from "[i]nterlocutory decrees . . . determining the rights and liabilities of parties to admiralty cases in which appeals from final decrees are allowed." Interlocutory appeals from orders denying temporary restraining orders are not permitted.
(d) Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: The certification specified in 28 U.S.C. § 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. The district court's denial of a motion for certification is not itself appealable.
(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in cases including, but not limited to: Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Ass'n v. Blythe Eastman Paine Webber, Inc., 890 F.2d 371, 376 (11th Cir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S.Ct. 308, 312, 13 L.Ed.2d 199 (1964).
2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276, 1278 (11th Cir. 2001). In civil cases, Fed.R.App.P. 4(a) and (c) set the following time limits:
(a) Fed.R.App.P. 4(a)(1): A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must be filed in the district court within 30 days after the entry of the order or judgment appealed from. However, if the United States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within 60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Special filing provisions for inmates are discussed below.
(b) Fed.R.App.P. 4(a)(3): "If one party timely files a notice of appeal, any other party may file a notice of appeal within 14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a), whichever period ends later."
(c) Fed.R.App.P. 4(a)(4): If any party makes a timely motion in the district court under the Federal Rules of Civil Procedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.
(d) Fed.R.App.P. 4(a)(5) and 4(a)(6): Under certain limited circumstances, the district court may extend the time to file a notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 days after expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or good cause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timely receive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.
(e) Fed.R.App.P. 4(c): If an inmate confined to an institution files a notice of appeal in either a civil case or a criminal case, the notice of appeal is timely if it is deposited in the institution's internal mail system on or before the last day for filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
3. Format of the notice of appeal: Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format. See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant.
4. Effect of a notice of appeal: A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal, except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).
