D.C. No. 1:20-CV-01450-RBJ, (D. Colo.)
Before HOLMES, Chief Judge, MATHESON and EID, Circuit Judges.
ORDER
On October 3, 2022, the court directed the parties to file memorandum briefs addressing in detail whether the court has jurisdiction over Appeal Nos. 22-1289 and 221320. These matters are before the court on the briefs filed by the parties. Upon careful consideration of the briefs, the applicable law, and district court docket, the court dismisses the appeals for the reasons set forth below.
The parties in these cross appeals challenge the district court's August 22, 2022 amended judgment, which awarded damages "plus applicable pre-judgment interest to be determined later. . ." Dist. Doc. No. 422. This court has "jurisdiction of appeals from all final decisions of the district courts of the United States," 28 U.S.C. § 1291, "that is, those decisions that leave[ ] nothing for the court to do but execute the judgment." Albright v. UNUM Life Ins. Co. of Am., 59 F.3d 1089, 1092 (10th Cir. 1995) (internal citation omitted). But under Federal Rule of Civil Procedure 58, a district court order determining liability without a calculation of damages in a "sum certain" fashion is not final, and therefore not appealable. Id.; see Fed.R.Civ.P. 58(b)(1)(B). "Prejudgment interest is an element of damages and must therefore be finally determined before appeal." Republic Bank, Inc. v. W. Penn Allegheny Health Sys., Inc., 475 Fed.Appx. 692, 697 (10th Cir. 2012) (unpublished) (citing Garcia v. Burlington N.R. Co., 818 F.2d 713, 721-22 (10th Cir. 1987)).
The court lacks jurisdiction to consider these cross appeals, and the parties in their briefing have admitted that prejudgment interest was not reduced to a sum certain, rendering the August 22, 2022 amended judgment not final. See Raley v. Hyundai Motor Co., 642 F.3d 1271, 1275 (10th Cir. 2011) ("Where an appellant fails to lead, we have no duty to follow. It is the appellant's burden, not ours, to conjure up possible theories to invoke our legal authority to hear her appeal.").
APPEALS DISMISSED.