PRECEDENTIAL


   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT

                  __________

                  No. 14-1150
                  __________

       KEVIN J. WITASICK, SR.;
 WHITNEY S. WITASICK, husband and wife,
                          Appellants

                       v.

MINNESOTA MUTUAL LIFE INSURANCE CO,
     a/k/a Minnesota Life Insurance Co.,
            A Securian Company;
      STANDARD INSURANCE CO,
      a/k/a Standard Life Insurance Co
                __________

 On Appeal from the United States District Court
        for the District of New Jersey

          (D.C. Civil No. 1-12-cv-03474)
 District Judge: Honorable Joseph H. Rodriguez

           ARGUED MAY 21, 2015
      BEFORE: FUENTES, GREENAWAY, JR., and
             NYGAARD, Circuit Judges


                   (Filed October 1, 2015)


Kevin J. Witasick, Sr., Esq. [Argued]
219 Bay Road
Ocean City, NJ 08226

Whitney S. Witasick, Esq.
219 Bay Road
Ocean City, NJ 08226

      Appellants

Jacqueline J. Herring, Esq. [Argued]
Warren S. von Schleicher, Esq.
Smith, von Schleicher & Associates
180 North LaSalle Street
Suite 3130
Chicago, IL 60601

      Counsel for Appellees


                        __________

                OPINION OF THE COURT
                      __________

NYGAARD, Circuit Judge.




                              2
             Factual and Procedural Background

       A disability policy and a business overhead expense
policy issued by Appellee Minnesota Life Insurance
Company covered Appellant Kevin Witasick.1 Those policies
were later acquired and administered by Appellee Standard
Insurance Company. Witasick made claims against both
policies, which were honored by the Appellees. A dispute
arose, however, concerning the coverage of some of
Witasick’s claimed business expenses.           After years of
discussion and negotiation, the parties ultimately settled their
dispute. Standard agreed to pay more than $4 million in
consideration to Witasick and Witasick agreed to release all
claims—known, unknown, and any future claims— against
the Appellee insurance companies. The settlement also
contained a covenant not to sue, whereby Witasick agreed not
to pursue any cause of action against Standard and Minnesota
Life stemming from “any conduct prior to the date the Parties
sign this document, or which is related to, or arises out of” the
insurance policies. Supp. App. at 29.
       While these settlement negotiations were taking place,
the United States Government notified Witasick that he was
the target of a federal grand jury investigation related to
certain fraud charges and business expense claims on his
federal income tax returns. Witasick was indicted in October
of 2007. To support its charge of mail fraud, the Government
relied on information and documents Witasick had submitted

1
 While his wife is a named party to this appeal, we will refer
only to Mr. Witasick throughout this opinion.




                               3
to Appellee Standard. An employee of Standard testified
before the Grand Jury and then again at Witasick’s trial.
Witasick was found guilty of most of the charges, the
exception being his acquittal on the mail fraud charge.2 He
was sentenced to fifteen months’ imprisonment.

       In November of 2011, Witasick filed a complaint
against the Appellee insurance companies. The complaint
contained more than twenty claims based on the former
policies or on Standard’s cooperation with the Government
prosecution. The Appellees asked the District Court to
dismiss the complaint, arguing that Witasick’s claims were
prohibited by the settlement agreement. The District Court
agreed and dismissed the complaint. Witasick filed a motion
for reconsideration which was likewise denied. Witasick
appeals. We will affirm.

                      Appellate Jurisdiction

        Whether we have appellate jurisdiction is the threshold
issue in this case. A notice of appeal must be filed “within 30
days after entry of the judgment or order appealed from.”
Fed. R. App. P. 4(a)(1)(A). This time limit is “mandatory and
jurisdictional.” Bowles v. Russell, 

, 209-10
(2007) (internal quotation marks omitted). If an order
granting a motion to dismiss is not set out in a separate
document, then judgment is not deemed entered until “150
days have run from the entry in the civil docket.” Fed. R.
Civ. P. 58(a), (c)(2)(B). “[A]n order is treated as a separate
document if it satisfies three criteria: (1) it must be self-
contained and separate from the opinion, (2) it must note the

2
    Witasick’s wife was acquitted on all charges.




                                4
relief granted, and (3) it must omit (or at least substantially
omit) the trial court’s reasons for disposing of the claims.”
LeBoon v. Lancaster Jewish Cmty. Cntr. Ass’n., 

, 224 (3d Cir. 2007) (citing Local Union No. 1992, IBEW
v. Okonite Co., 

, 285 (3d Cir. 2004); In re
Cendant Corp. Securities Litigation, 

, 241 (3d
Cir. 2006)).

       Here, the District Court’s memorandum opinion
granting the motion to dismiss was entered on March 25,
2013. Because Witasick did not file his notice of appeal until
September 23, 2013—considerably more than 30 days after
the entry of the memorandum opinion—Appellees contend
that the notice was filed too late and that we should dismiss
the appeal. See, e.g., Bowles, supra. (timely filing of a notice
of appeal in a civil case is a jurisdictional requirement). We
disagree.

       The March 25, 2013, ten-page memorandum opinion
resolved all claims and detailed the District Court’s reasons
for granting the motion to dismiss. However, it did not set
out the judgment of dismissal in a separate document.
Instead, page 10 of the memorandum (under a heading of
“Conclusion”) states that “[a]ccordingly and incorporating the
discussion held during oral argument on the motion, IT IS
ORDERED this 25th day of March, 2013, that Defendant’s
motion to dismiss the Complaint [16] is hereby GRANTED.”
Supp. App. at 20. An electronic signature (/s/) for Judge
Joseph Rodriguez was appended to the memorandum. Supp.
App. at 20. The problem, however, is that this order is not
self-contained and it includes the District Court’s reasoning.
Therefore, it cannot be considered a separate document. See
In re Cendant, 454 F.3d at 243. The District Court itself




                               5
seemed to realize that it never entered a separate document
when it dismissed the Appellant’s complaint. In July of 2013,
Witasick filed a motion asking the District Court to enter a
judgment pursuant to Rule 58(a), presumably so he could
appeal. Appellees filed a memorandum in opposition and the
District Court denied the motion as moot in January of 2014.3
In its order denying the motion, the District Court specifically
noted that “[b]ecause no separate document was entered to
reflect the March 25, 2013 decision, judgment was deemed
entered after 150 days pursuant to Fed.R.Civ.P. 58(c)(2).”
Supp. App. at 28. Accordingly, judgment was not entered
until August 22, 2013—150 days after March 25, 2013.

        There is a second questionably relevant document to
the issue of appellate jurisdiction: a docket entry also dated
March 25, 2013 stating “Civil Case Terminated.” Supp. App.
at 21. Appellees point to this entry as a “separate document,”
arguing that it notes the relief granted, and that such
electronic entries can satisfy the separate judgment
requirement of Rule 58. This entry, without a doubt, relates
nothing of the District Court’s reasoning. See In re Cendant,
454 F.3d at 242. However, it cannot be considered a separate
document because the phrase “Civil Case Terminated” tells
us nothing of the relief granted. It is a mere clerical notation
by court personnel that the case is over, without saying why.
Of course, a case can be terminated for any number of
reasons, such as a failure to prosecute, a failure to pay certain
fees, a grant of summary judgment, a jury verdict, and so on.
This entry is also used to administratively close a case during

3
 The District Court found the motion mooted by the filing of
Appellant’s notice of appeal in September of 2013. We
discuss this problematic document later in this opinion.




                               6
an interlocutory appeal or during a stay to allow a party to
exhaust remedies, for example.          A case can also be
“terminated” while a district court seeks counsel for a pro se
litigant. Here, the notation “Civil Case Terminated” is simply
too vague to satisfy the second criteria of In re Cendant and a
docket entry containing such a notation cannot be considered
a separate document of judgment.

       We agree, however, with the Appellees’ larger point:
electronic entries made by a district court via the federal
CM/ECF System4 can, in certain circumstances, satisfy Rule
58’s requirement. This is hardly controversial. The District
of New Jersey, as well as every other federal court, provides
for electronic entries and gives them the force and effect of a

4
    As the PACER website explains, “The Case
Management/Electronic Case Files (CM/ECF) system is the
Federal Judiciary’s comprehensive case management system
for all bankruptcy, district, and appellate courts. CM/ECF
allows courts to accept filings and provides access to filed
documents online. CM/ECF gives access to case files by
multiple parties, and offers expanded search and reporting
capabilities. The system also offers the ability to immediately
update dockets and download documents and print them
directly     from      the    court     system.”           Case
Management/Electronic                  Case                Files,
https://www.pacer.gov/cmecf/; see also Ragguette v. Premier
Wines & Spirits, 

, 321 n. 1 (3d Cir. 2012) (“The
Case Management/Electronic Case Filing (CM/ECF) system
is a computer case management system that allows courts to
maintain electronic case files and attorneys to file (and serve)
documents through the Internet”).




                               7
court order. However, a holding that every electronic docket
entry satisfies Rule 58’s requirements paints with too broad a
brush.

       The federal CM/ECF system allows for three distinct
types of case-related entries: text orders, utility events, and
minute entries. A text order, as its name suggests, is an order
of the court, with specific text granting, denying, or otherwise
resolving a motion or, ultimately, a case. See, e.g., United
States v. Wecht, 

, 232 (3d Cir. 2007). Text
orders can also be used to set a hearing, order briefing, and
direct service. Such orders may be used to rule on
substantive motions, like those seeking summary judgment,
or those asking for a complaint to be dismissed under Federal
Rule of Civil Procedure 12(b)(6). See, e.g., Gannon Int’l,
Ltd. v. Blocker, 

, 791 (8th Cir. 2012). Text
orders additionally may be used to resolve other issues that
arise during litigation, like motions to suppress evidence,
and/or relatively routine motions as determined by the
District Judge or Clerk of Court. Indeed, the CM/ECF User
Manual for the District of New Jersey specifically
acknowledges the use of such orders: “the assigned judge or
the Clerk’s Office, if appropriate, may grant routine orders by
text-only docket entry for which a Notice of Electronic Filing
will be generated. In such cases, no PDF document will be
issued and the text order shall constitute the Court’s only
order on the matter.” ECF User Manual at page 8 (Rev. 5-1-
2013),
www.njd.uscourts.gov/sites/njd/files/CMECFUserGuide.pdf.
Text orders usually have no difficulty satisfying the separate
document requirement of Rule 58(a) and In re Cendant,
supra. They are separate and self-contained from any actual
opinion; they note the relief granted; and they omit (or




                               8
substantially omit) the District Court’s reasoning. And,
significantly, they contain an electronic signature of a judge.

        The two other types of electronic docket entries are
vastly different from text orders. Indeed, they are not orders
at all. A “utility event” is an entry which records an event or
action in the life of a case and often appears only on a court’s
private docket. 5 Utility events memorialize on the docket
mundane matters like the addition of an attorney to the
docket, the re-assigning of a case to a different judge, the
referral of a case to mediation or a special master, the sealing
of a case, the appointment of an interpreter or, apropos to this
appeal, the termination of a case. These entries differ from
“minute entries” in that minute entries reflect time spent in
court. Minute entries might memorialize the time spent in a
case management conference, a contempt hearing, a motion
hearing, or a pre-trial conference. Like utility events, minute
entries are not orders of the district court nor are they signed
by a judge. As such, they cannot serve as a foundation for an
appeal. See, e.g., Theriot v. ASW Well Serv. Inc., 

, 87 (5th Cir. 1992) (“A minute entry, although it is a record
of the court’s final decision in a case or of an appellate
interlocutory decision, cannot constitute a ‘separate
document’ for the purposes of meeting the Rule 58
requirement.”).


5
  The CM/ECF system includes both public and private
docket entries. Of course, public entries are available to the
general public. However, “[p]rivate docket entries are for use
by chambers and COA staff only and are not available to the
public.” Third Circuit Court of Appeals Technology Guide,
page 12, § 4.2 (August 4, 2014).




                               9
       Therefore, because no separate document of judgment
was filed in this case, the District Court’s decision became
final 150 days after it was entered—August 22, 2013.
Witasick had 30 days from that date to file a Notice of
Appeal. On September 23, 2013, he filed a document with
the District Court entitled a “Contingent Notice of Appeal.”
Because September 22, 2013 was a Sunday, Witasick’s notice
was timely filed on Monday, September 23, 2013. We now
turn our attention to that document.

               The Contingent Notice of Appeal

        In July of 2013, Witasick filed a motion in the District
Court asking it to enter a separate judgment. On September
23, 2013—the last day he could file a notice of appeal—
Witasick filed another motion asking the District Court to
enter a separate document. He styled this motion a
“Contingent Notice of Appeal of the court’s March 25, 2013
order granting the defendants’ motion to dismiss the
plaintiff’s complaint.” Supp. App. at 22-25. In the last
paragraph of this motion, Witasick stated “[i]f, however, the
Court denies the Plaintiffs’ Rule 58 request, this Contingent
Notice of Appeal will then become the Plaintiffs’ formal
Notice of Appeal of the Court’s March 25, 2013 Order
dismissing the Plaintiffs’ complaint in its entirety.” Supp.
App. at 25. This type of document is unorthodox, but not
unheard of. See, e.g., CE Design, Ltd. v. Cy’s Crab House
North, Inc., 

, 727 (7th Cir. 2013) (“Truck
Insurance could have filed a contingent notice of appeal . . . to
protect its interests . . . .); In re Synthroid Mktg. Litig., 

, 716 (7th Cir. 2001) (party filed a contingent notice
of appeal upon advice of the Court).




                               10
        Federal Rule of Appellate Procedure 3 sets out the
requirements for a valid notice of appeal. The Rule requires
that the notice specify three things: the party taking the
appeal, the order being appealed from, and the name of the
court to which the appeal is taken. Fed. R. App. P. 3(c)(1)(A-
C). This rule is “jurisdictional in nature” and “[we] may not
waive its jurisdictional requirements, even for good cause.”
Massie v. U.S. Dep’t of Hous. and Urban Dev., 

,
348 (3d Cir. 2010). However, the Supreme Court has made
clear that Rule 3’s requirements are to be construed liberally.6
See Smith v. Barry, 

, 248 (1992). Witasick is
unambiguously the party taking the appeal here. And, the
contingent notice references the order being appealed. Albeit
unstated, we also think the destination of the appeal can be
sufficiently gleaned from the entire document and this defect
does not strip us of our appellate jurisdiction on its own. Cf.
Anderson v. District of Columbia, 

, 168 (D.C. Cir.
1995) (exercising jurisdiction over appeal that mistakenly
listed the Supreme Court of the United States, rather than the
Court of Appeals for the District of Columbia Circuit).
Common sense dictates as much. See Bankers Trust Co. v.
Mallis, 

, 387 (1978); Matute v. Procoast
Navigation Ltd., 

, 629 (3d Cir. 1991), overruled
on other grounds by Neely v. Club Med Mgmt. Servs. Inc., 

 (3d Cir. 1995).


6
    The Supreme Court’s admonition to apply these
requirements liberally has special force where pro se litigants
are concerned. Powell v. Symons, 

, 306 n.2 (3d
Cir. 2012). We note that while Witasick represents himself
on appeal, his contingent notice of appeal was signed and
filed by counsel on Witasick’s behalf.




                              11
        The nature of Witasick’s contingent notice leaves
some question as to whether he conclusively established his
intention to appeal. See Hindes v. FDIC, 

, 156
(3d Cir. 1998) (document filed by litigant, regardless of its
title, within the time for appeal under Fed.R.App.P. 4, is
effective as notice of appeal provided that it gives sufficient
notice of party’s intent to appeal); Dura Sys., Inc. v.
Rothbury Invs., Ltd., 

, 555 (3d Cir. 1989). At
one point, Witasick’s contingent notice flatly states that “it is
not the Plaintiff’s intention to divest this Court (the District
Court) of jurisdiction by filing this document, particularly
given the various outstanding motions which have not yet
been ruled upon, and that is why the Plaintiffs’ have called it
a ‘contingent’ notice of appeal.” Supp. App. at 25. Since a
notice of appeal divests a district court of jurisdiction, this
statement injects a degree of ambiguity into Witasick’s
intention to appeal.

       However, construing the contents of the entire
document liberally, we are satisfied that Witasick, albeit
awkwardly, has indicated an intention to appeal. First,
Witasick’s contingent notice asks the District Court to enter a
separate judgment so that he can appeal. Second, he states
that since the District Court failed to enter a separate
document of judgment pursuant to Fed. R. Civ. P. 58, he finds
it necessary to file a contingent notice to protect his right to
appeal. Third, Witasick filed his contingent notice on the day
it was due—30 days after the entry of the judgment appealed
from. This shows us that Witasick intended to appeal and
was well aware of the date by which he had to file his notice.
Taken together, these evidence an intention to appeal,
regardless of Witasick’s outlying comment to the contrary.




                               12
        Therefore, even though Witasick’s contingent notice
falls somewhat short of the requirements of Rule 3, we will
nevertheless find it to be the “functional equivalent” of a
notice of appeal. Smith, 502 U.S. at 248 (quoting Torres v.
Oakland Scavenger Co., 

, 316-17 (1988)). We
strongly emphasize, however, that the use of a contingent
notice of appeal is not recommended when attempting to
concretely establish appellate jurisdiction. See, e.g., United
States v. Carson, 

, 1486 n.2 (3d Cir. 1992)
(“The method utilized here is not recommended, but we think
the letter is sufficient to give us appellate jurisdiction over
Carson’s appeal.”).

              The Scope of the Notice of Appeal

        Next, the parties dispute the scope of our appellate
jurisdiction. If an appeal is taken only from a specified
judgment, we do not acquire jurisdiction to review other
judgments not specified or “fairly . . . inferred” by the notice.
Pension Trust Fund for Operating Eng’rs v. Mortg. Asset
Securitization Transactions, Inc., 

, 269 (3d Cir.
2013) (quoting Elfman Motors, Inc. v. Chrysler Corp., 

, 1254 (3d Cir. 1977)). The Appellees argue that
we have jurisdiction solely to review the March 25, 2013
order because that was the order specifically designated in the
Contingent Notice of Appeal. 7 That is accurate: Witasick’s


7
  Witasick also filed a Rule 59(e) motion challenging the
District Court’s dismissal, which he failed to challenge in
their notice of appeal. Because Witasick did not file a new or
amended notice of appeal encompassing the order denying
the Rule 59(e) motion, we lack jurisdiction to consider that




                               13
notice clearly states that he appeals the District Court’s
“March 25, 2013 Order dismissing the Plaintiffs’ complaint in
its entirety.” Supp. App. at 22-25. Further, the notice itself
repeatedly references his desire to preserve his appellate
rights as they relate only to the March 25, 2013 order. And,
Witasick made no attempt to amend his contingent notice or
file a new notice of appeal from any other order of the
District Court. Therefore, we conclude that this appeal is
limited to the March 25, 2013 order.

               The Merits of Witasick’s Appeal

        We use a de novo standard of review when reviewing a
district court’s grant of a motion to dismiss. See In re
Schering Plough Corp. Intron/Temodar Consumer Class
Action, 

, 243 (3d Cir. 2012). We thus apply the
same standard as the District Court. See Santomenno v. John
Hancock Life Ins. Co., 

, 182 (3d Cir. 2012). In
reviewing the District Court’s grant of a motion to dismiss
pursuant to Rule 12(b)(6), like the District Court, we accept
as true all factual allegations in the complaint and we
construe the complaint in the light most favorable to the
plaintiff. See Trump Hotels & Casino Resorts, Inc. v. Mirage
Resorts, Inc., 

, 483 (3d Cir. 1998). We consider
only facts alleged in the complaint, attached exhibits, and
matters of public record. See Sands v. McCormick, 

, 268 (3d Cir. 2007). We affirm a dismissal only if the
plaintiff has failed to plead “‘enough facts to state a claim to
relief that is plausible on its face.’” Malleus v. George, 641



order. See Fed. R. App. P. 4(a)(4)(B)(ii); Carrascosa v.
McGuire, 

, 253–54 (3d Cir. 2008).




                              

, 563 (3d Cir. 2011) (quoting Bell Atl. Corp. v.
Twombly, 

, 570 (2007)).

       Witasick’s argument is wholly without merit. As part
of the settlement—and for millions of dollars in
consideration—Witasick agreed to abandon and relinquish all
claims against the Appellees. The settlement could not be
clearer:

             [t]his document is intended to be a
             mutual release by the Witasicks
             and Standard. These Releases
             include, but are not limited to any
             presently existing claims based
             upon the IDI Policy and the BOE
             Policy, breach of contract,
             negligent tort, intentional tort, bad
             faith, fraud, breach of a covenant
             of good faith and fair dealing,
             unfair insurance practices, or
             violation of any statute or
             regulation, as well as claims for
             attorney fees and costs.

Supp. App. at 27. Witasick also agreed to release the
Appellees from any and all claims related to his alleged
entitlement to benefits, and from any future claims, either
known or unknown. Supp. App. at 27-28, 29. As the District
Court noted, and our own review of the record confirms, the
parties wanted to settle all claims, including those known and
unknown, past, present and future, regarding the insurance
policies at issue here. Notably with the help and advice of
counsel, Witasick agreed to the settlement and thereby




                              15
abandoned the claims set out in the complaint. He also
agreed not to sue the Appellee insurance companies, yet went
ahead with a lawsuit. Witasick is stuck with the terms of his
bargain.

        Witasick argues that reliance on a settlement
agreement to bar litigation must be specifically pleaded as a
defense. We are unpersuaded. Courts regularly take
settlement agreements into consideration when dismissing
complaints. See, e.g., Blunt v. Lower Merion Sch. Dist., 

, 281 (3d Cir. 2014); Coventry v. U.S. Steel Corp.,

, 522 (3d Cir. 1988). Also, a Covenant Not to
Sue is part of the settlement agreement. This Covenant
specifically prohibits Witasick from suing the Appellees “for
any conduct prior to the date the Parties sign this document,
or which is related to, or arises out of, the IDI Policy, the IDI
Claim, the BOE Policy, or the BOE Claim, or which has been
released or waived by this Release.” Supp. App. at 29. This
is yet another bar to Witasick’s litigation.8

8
  Witasick also argues that a malicious prosecution claim
survives outside of the settlement agreement/release. Based
on Standard’s cooperation with the federal government’s
criminal prosecution, Witasick maintains that this claim was
born after he executed the settlement. But he contradicts
himself by specifically stating that the alleged malicious
prosecution began in 2002, five years before the settlement.
Appellant’s Brief at 44. This claim, however, is barred by the
settlement agreement, no matter when it accrued and is
wholly without merit. Witasick agreed to release all claims
that accrued prior to the execution of the settlement
agreement. Because Witasick explicitly released all claims
against the Appellees that are predicated on conduct that




                               16
                        Conclusion

       We will affirm the order of the District Court
dismissing Witasick’s claims because they are barred by the
Parties’ settlement agreement.9




occurred before the settlement, the malicious prosecution
claim is barred.
9
  The Appellees, pursuant to the provisions of the settlement
agreement, are entitled to an award of attorney’s fees. As is
our practice, we will award costs to the Appellees today as
the prevailing party. Fees must be sought, however, in a
separate motion, detailing the amount requested.




                             17