12-4639-cv
Lee v. Fancy Mayflower Cleaners, Inc.
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 28th day of October, two thousand thirteen.

PRESENT: GERARD E. LYNCH,
         DENNY CHIN,
         CHRISTOPHER F. DRONEY,
                        Circuit Judges.

————————————————————————

JOSE LUIS PEREYRA,

                                        Plaintiff - Counter-Defendant

C.K. LEE, ESQ.,

                                        Appellee,

                                v.                                         No. 12-4639-cv

FANCY MAYFLOWER CLEANERS, INC.,
DAEKYUNG BAE, AKA DAMON BAE,
FANCY 57 CLEANERS, INC.,
FANCY HARLEM CLEANERS, INC.

                                        Defendants - Counter-Claimants -
                                        Appellants,

HEE NAM BAE, MYOUNG S. BAE,
                            Defendants - Counter-Claimants.*

————————————————————————

FOR APPELLANT:              SAMUEL CHUANG, Law Offices of Samuel Chuang,
                            Flushing, New York.

FOR APPELLEE:               C.K. LEE, Lee Litigation Group, PLLC, New York, New
                            York.

       Appeal from the United States District Court for the Southern District of New

York (Richard J. Sullivan, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.

       Defendants-appellants Fancy Mayflower Cleaners, Inc., Daekyung Bae, Fancy 57

Cleaners, Inc., and Fancy Harlem Cleaners, Inc. (collectively “Fancy”) appeal from

orders entered September 25, 2012, and October 26, 2012, in the United States District

Court for the Southern District of New York, granting the motion of appellee – former

co-counsel to appellants, C.K. Lee – to withdraw as attorney of record for Fancy, and

denying Fancy’s motion for reconsideration of that decision, respectively. The district

court granted Lee’s motion to withdraw because it concluded that Lee had irreconcilable

differences with Fancy pertaining to post-trial and appellate litigation. This appeal is one

of two related appeals pending before this Court, the second having been filed following

entry of judgment in the underlying case.



       *
         The Clerk of Court is respectfully directed to amend the official caption in this
case to conform with the caption above.

                                             2
       Pursuant to 28 U.S.C. § 1291, the courts of appeals have jurisdiction over “appeals

from all final decisions of the district courts . . . except where a direct review may be had

in the Supreme Court.” 28 U.S.C. § 1291. Ordinarily, a party may not take an appeal

under section 1291 “until there has been a decision by the District Court that ends the

litigation on the merits and leaves nothing for the court to do but execute the judgment.”

Firestone Tire & Rubber Co. v. Risjord, 

, 373 (1981) (quotation marks

omitted).

       Despite this general rule, orders that do not finally resolve a case may be appealed

immediately if they satisfy the requirements of the collateral order doctrine. That

doctrine renders appealable a small class of rulings “which finally determine claims of

right separable from, and collateral to, rights asserted in the action, too important to be

denied review and too independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Indus.

Loan Corp., 

, 546 (1949). In addition, we have held that “a premature notice

of appeal from a nonfinal order may ripen into a valid notice of appeal if a final judgment

has been entered by the time the appeal is heard and the appellee suffers no prejudice.”

IUE AFL-CIO Pension Fund v. Hermann, 

, 1054-55 (2d Cir. 1993) (quotation

marks omitted).

       Although the parties do not contest the issue, we have an independent obligation to

assure ourselves of the existence of appellate jurisdiction. See Bender v. Williamsport

Area Sch. Dist., 

, 541 (1986). Fancy proffers two bases on which this Court

                                              3
may exercise jurisdiction over its appeal. First, Fancy suggests that the district court’s

orders fall within the collateral order doctrine. Second, Fancy contends that we have

jurisdiction over the appeal because, following the filing of Fancy’s instant notice of

appeal, the district court entered a final judgment in the underlying action. Neither of the

proffered grounds gives this Court jurisdiction to hear the present appeal, and

accordingly, the appeal must be dismissed.

       The order granting Lee’s motion to withdraw does not satisfy the requirements of

the collateral order doctrine, and is therefore not immediately appealable. See Schwartz v.

City of New York, 

, 237 (2d Cir. 1995) (concluding that order granting

Corporation Counsel’s motion to withdraw as counsel “is not a final judgment for

purposes of 28 U.S.C. § 1291 and does not fall within the ‘collateral order’ exception to

the final judgment rule”). An interlocutory order is immediately appealable if it (1)

conclusively determines the disputed question, (2) resolves an important issue completely

separate from the merits of the action, and (3) is effectively unreviewable on appeal from

a final judgment. Coopers & Lybrand v. Livesay, 

, 468 (1978). In this case,

as in Schwartz, the Coopers & Lybrand requirements are not satisfied. Even assuming

that the order at issue is separable from the underlying merits of the case, the order is not

effectively unreviewable on appeal from a final judgment. By the same logic, the district

court’s order denying reconsideration of its decision to permit counsel to withdraw at his

own request is also not immediately appealable.




                                              4
       Moreover, even if the instant notice of appeal, which pertains to clearly

interlocutory decisions, is capable of ripening into a proper appeal upon entry of final

judgment, but see FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 

, 276

(1991), it has not done so here. Although the district court entered a final judgment in

this case on March 22, 2013, that judgment was effectively rendered nonfinal by the filing

of certain post-judgment motions with the district court. See Osterneck v. Ernst &

Whinney, 

, 174 (1989) (noting that rules depriving notice of appeal of

effectiveness during pendency of certain post-judgment motions “work to implement the

finality requirement of 28 U.S.C. § 1291 by preventing the filing of an effective notice of

appeal until the District Court has had an opportunity to dispose of all motions that seek

to amend or alter what otherwise might appear to be a final judgment”). Accordingly, the

present appeal has not ripened into a proper appeal, and because it is not independently

appealable, there is no appellate jurisdiction over the appeal.1

       For the foregoing reasons, the appeal is DISMISSED for lack of appellate

jurisdiction.

                                    FOR THE COURT:
                                    Catherine O’Hagan Wolfe, Clerk of Court




       1
         Consideration of the instant appeal is particularly ill-advised in light of the
absence from this appeal of the plaintiff Jose Luis Pereyra. If the district court’s decision
to permit Lee to withdraw turns out to have been erroneous, whatever remedy appellants
might seek to cure that error could prejudice the interests of absent parties, particularly
the plaintiff, who have not had the opportunity to present their positions to this Court. To
the extent that Fancy claims any prejudice from the district court’s decision to grant Lee’s
motion to withdraw, the propriety of that decision is better considered in connection with
Fancy’s appeal from the final judgment.

                                              5