Eduardo Gonzalez v. Verfruco Foods, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13704
Non-Argument Calendar
____________________
EDUARDO GONZALEZ,
Pursuant to 28 U.S.C. 1782 For Judicial Assistance
in Obtaining Evidence for Use in
Foreign International Proceedings,
Petitioner-Appellee,
versus
VERFRUCO FOODS, INC.,
Respondent-Appellant,
VICTOR SEBASTIAN MAURICIO, et al.,
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2 Opinion of the Court 23-13704
Respondents.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-mc-24628-DPG
____________________
Before WILSON, NEWSOM , and LAGOA , Circuit Judges.
PER CURIAM:
This appeal is DISMISSED, sua sponte, for lack of jurisdic-
tion. Verfruco Foods, Inc. (“Verfruco”) appeals a magistrate
judge’s August 8, 2022 report and recommendation (“R&R”) that
Eduardo Gonzalez be awarded attorney’s fees, the district court’s
February 8, 2023 order adopting the R&R and directing Gonzalez
to move for a specific amount of fees, and the magistrate judge’s
October 6, 2023 order awarding attorney’s fees in the amount of
$28,660.
We lack jurisdiction to directly review the magistrate
judge’s October 6, 2023 order, as an appeal from that order must
be taken to the district court first. See 28 U.S.C. § 1291; Donovan v.
Sarasota Concrete Co., 693 F.2d 1061, 1066–67 (11th Cir. 1982); United
States v. Schultz, 565 F.3d1353, 1359 (11th Cir. 2009). Even if the
district court ultimately affirms that order, the subsequent affir-
mance would not cure this premature notice of appeal. See Pe-
rez-Priego v. Alachua Cnty. Clerk of Ct., 148 F.3d 1272, 1273 (11th Cir.
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23-13704 Opinion of the Court 3
1998) (holding that a magistrate judge’s R&R was not final and ap-
pealable where the district court had not adopted it before the no-
tice of appeal was filed).
Because the district court has not affirmed the magistrate
judge’s attorney’s fees award or otherwise rendered it final, there
is no final order on attorney’s fees. As we noted in our previous
order dismissing in part Verfruco’s prior appeal from the district
court’s February 8, 2023 order, that order and the magistrate
judge’s underlying August 8, 2022 R&R are not final or immedi-
ately appealable because they did not determine the attorney’s fees
amount. See 28 U.S.C. § 1291; Acheron Cap., Ltd. v. Mukamal, 22
F.4th 979, 986 (11th Cir. 2022); PlayNation Play Sys., Inc. v. Velex
Corp., 939 F.3d 1205, 1212 (11th Cir. 2019). Accordingly, we lack
jurisdiction to consider this appeal.
No petition for rehearing may be filed unless it complies
with the timing and other requirements of 11th Cir. R. 40-3 and all
other applicable rules.
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