Everest National Insurance Company, a Delaware corporation v. DARYL BRADLEY On Appeal from the United States District Court for the District of…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4643
EVEREST NATIONAL INSURANCE COMPANY,
a Delaware corporation;
EVEREST REINSURANCE COMPANY,
a Delaware corporation
v.
ROBERT SUTTON;
WK CAPITAL ADVISORS, INC.;
CENTRIX CONSOLIDATED, LLC;
CENTRIX CAPITAL MANAGEMENT, LLC,
Appellants
v.
DARYL BRADLEY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-07-cv-00722)
District Judge: Honorable Joel A. Pisano
Submitted Under Third Circuit LAR 34.1(a)
March 27, 2009
Before: RENDELL, AMBRO and JORDAN, Circuit Judges.
(Filed: April 7, 2009)

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1The District Court’s opinion and order are dated August 11, 2008, but were filed on
August 13, 2008.
2
OPINION OF THE COURT
JORDAN, Circuit Judge.
Defendants Robert Sutton, WK Capital Advisors, Inc. (“WK Capital”), Centrix
Consolidated, LLC (“Centrix Consolidated”), and Centrix Capital Management, LLC
(“Centrix Capital”) (collectively “Appellants”) appeal from an order by the United States
District Court for the District of New Jersey, entered August 13, 2008,1 requiring
Appellants to post security with an arbitration panel. Because we lack jurisdiction, we
will dismiss this appeal.
I. Background
The facts we rely on to evaluate our jurisdiction are primarily from the District
Court’s opinion in support of its order and are undisputed, unless otherwise noted. See
Everest Nat’l Ins. Co. v. Sutton, No. 07-722, 2008 WL 3833586 (D.N.J. Aug. 13, 2008).
Everest National Insurance Co. and Everest Reinsurance Co. (collectively “Everest”)
provide insurance for sub-prime automobile loans. Id. at *2. Everest entered into a
reinsurance agreement with non-party Founders Insurance Co. (“Founders”), which is
also owned by Appellant Sutton. Id. at *3. In order to further secure its insurance

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2Appellants argue that there is no evidence in the record that WK Capital executed a
guarantee in its corporate capacity.
3The District Court had diversity jurisdiction pursuant to 28 U.S.C. § 1332(a).
3
policies, Everest entered into agreements with Appellants whereby Appellants each
agreed to guarantee Founders’s obligations under the reinsurance agreement.2 Id. at *3.
In this breach of contract action, Everest alleges that Appellants failed to fulfill
their obligations under the guarantees following Founders’s refusal to pay $76,262,632.00
due to Everest under their reinsurance agreement.3 (App. at 35 ¶ 39, 36 ¶ 50.) Sutton,
Centrix Consolidated, and Centrix Capital filed counterclaims, in part seeking a
declaration that no monies are due and owing under the guarantees because Everest
unnecessarily reimbursed lenders for certain claims. Everest, 2008 WL 3833586, at *9,
17. (App. at 47 ¶ 2 - 48 ¶ 4.)
In connection with a separate arbitration between Everest and Founders regarding
Founders’s alleged breach of the reinsurance agreement, an arbitration panel ordered
Founders to post $70 million in favor of Everest “as security to cover part or all of any
ultimate award that the panel may decide in Phase II of the arbitration.” (App. at 473d.)
Founders failed to comply. Everest, 2008 WL 3833586, at *3. Everest then moved for
partial summary judgment in this case, seeking an order requiring Appellants to satisfy
Founders’s obligation to post security. Id. Everest also moved to dismiss the
counterclaims. Id. at *1.

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4Appellants do not contend that a final decision is at issue here. Nor could they, since
the very nature of the District Court’s order granting partial summary judgment means
that material facts remain to be adjudicated. See Fed. R. Civ. P. Rule 56(d); Cohen v. Bd.
of Trs. of the Univ. of Med. & Dentistry of New Jersey, 867 F.2d 1455, 1463 (3d Cir.
1989) (distinguishing orders for partial summary judgment from orders for summary
judgment). Appellants also do not rely on the collateral order doctrine to establish our
jurisdiction. See Kensington Int’l Ltd. v. Republic of Congo, 461 F.3d 238, 241 (2d Cir.
2006) (“An order granting security is not appealable [under the collateral order doctrine]
because the aggrieved party may obtain complete relief on appeal from final judgment.”).
4
In its August 13th order, the District Court granted Everest’s motion for partial
summary judgment and granted in part Everest’s motion to dismiss. Thus, one
counterclaim is still before the District Court, as is Everest’s breach of contract claim.
Appellants appealed the August 13th order. We granted their motion to expedite the
appeal and asked the parties to address this Court’s jurisdiction in their briefs and through
supplemental responses.
II. Discussion
This is not a close case.4 Appellants contend that our jurisdiction is based on 28
U.S.C. § 1292(a)(1), which provides us with jurisdiction over “[i]nterlocutory orders ...
granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve
or modify injunctions.” (Appellants’ Opening Brief at 1.) But the District Court’s award
is one for the payment of money and thus traditionally brought in law rather than equity.
See Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 210-11 (2002) (“[A]n
injunction to compel the payment of money past due under a contract, or specific
performance of a past due monetary obligation, was not typically available in equity.”).

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5
An injunction for purposes of § 1292(a)(1) does not arise out of an “[a]ction[] at law for
the recovery of money.” Cohen, 867 F.3d at 1465.
We may review a decision on an isolated claim, even if other claims in the
complaint remain, if a district court enters final judgment as to the decided claim pursuant
to Fed. R. Civ. P. 54(b). Id. Appellants, however, opposed entry of final judgment before
the District Court on the basis that the order “is not ready for appeal,” a contention with
which the District Court agreed. (D.I. 93 at 10.) They cannot credibly claim now that we
have jurisdiction. We conclude that we do not.
III. Conclusion
For the foregoing reasons, we will dismiss this appeal because we lack jurisdiction.
Appellants’ motion for leave to file its supplemental appendix under seal is granted.

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