Finally, Plaintiffs argue that judicial economy and the equitable interests of the parties would be disserved if certification is not granted. (Plaintiffs Memo, pp. 5-6). However, as Hogan suggests, judicial economy alone in preventing retrials is an insufficient reason to grant certification. Further, the Second Circuit has stated that courtesy, accommodation and routine are improper bases to certify an Order. Ansam Associates Inc. v. Cola Petroleum, Ltd., 760 F.2d at 445. Finally, the concern expressed in Ginett is for efficient judicial administration, not necessarily judicial economy.
Plaintiffs offer no further argument of how their equitable interests, other than the potential discomfort of a retrial, are harmed. Plaintiffs can only offer the meek argument that ConAgra's equitable interest is harmed, because "ConAgra should be entitled to know whether it is in or out of the case before the commencement of trial." (Plaintiffs Memo, p. 6). Notably, however, ConAgra does not share this concern, as demonstrated by its opposition to Plaintiffs' motion seeking an immediate appeal.
It should also be noted that Plaintiffs' reliance on Steve's Homemade Ice Cream, Inc. v. Stewart, 907 F.2d 364 (2d Cir. 1990), to suggest the appropriateness of Rule 54(b) certification in the instant case is unavailing. Plaintiffs correctly assert that the circumstances and conclusions regarding the application of Rule 54(b) in Steve's are distinct from those at bar. However, any implication that the distinctions between the cases allows the conclusion that certification should be applied to the summary judgment Order for ConAgra is unwarranted.
In Steve's, one of three defendants was granted partial summary judgment dismissing one of several claims asserted against it. However, that claim remained in the suit as asserted against the remaining defendants, and that defendant remained in the suit under several other claims. In considering the applicability of Rule 54(b) to this situation, the court held that "an order dismissing a claim against one party but not completely dismissing either the claim or the party from the litigation is not eligible for entry of a final judgment under Rule 54(b)." Steve's, 907 F.2d at 364.
The holding in Steve's states that in determining whether to entertain an appeal certified under Rule 54(b), the appellate court "must determine first whether the judgment is eligible for Rule 54(b) certification." Id. at 365. The holding does not state, nor imply, that since the circumstances in Steve's made its summary judgment order ineligible for entry of a final judgment, certification is conversely appropriate in cases where a defendant, such as ConAgra, is totally dismissed from the litigation.
Similarly, plaintiffs reliance on the 1961 amendment to Fed.R.Civ.P. 54(b) is unavailing. The amendment makes certification under the Rule available when one party is dismissed from a multiparty suit, since the prior version of the Rule only referred to multiple claims. Steve's. 907 F.2d at 366. The amendment does not indicate that when a party is totally dismissed from the action that certification is necessarily appropriate. It does state, however, that in such cases certification is available at the district court's discretion. In brief, neither the holding in Steve's nor the 1961 amendment fetter the district court's discretion in applying the Rule.
In opposition to Plaintiffs' motion, ConAgra asserts that Plaintiffs have failed to demonstrate "that a denial of certification would cause unusual hardship or work an injustice to the plaintiffs." (ConAgra Memo, p.4). The Second Circuit has directed that certification should be granted only when there exists "some danger of hardship or injustice through delay which would be alleviated through immediate appeal." Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 942 (2d Cir. 1968).
For example, in Ginett the delay of plaintiff's receipt of his severance pay until the remaining issues of the case could be determined, was held by the district court in the Western District of New York to constitute sufficient hardship to a litigant warranting Rule 54(b) certification.
In the instant case, Plaintiffs offer no sufficient reasons why they would suffer hardship or injustice through the delay resulting from noncertification. As discussed above, asserting that "resolution of this issue" by an immediate appeal would save them the "cost and expense of a full trial" does not demonstrate sufficient hardship or injustice to warrant certification. Therefore, as ConAgra correctly contends, Plaintiffs have failed to demonstrate that this case represents the "infrequent harsh case" eligible for Rule 54(b) certification.
ConAgra also contends that entry of final judgment should be denied since Plaintiffs and Kinsman are involved in settlement discussions. (ConAgra Memo, p.2). ConAgra notes that if settlement were reached between Kinsman and Plaintiffs, certification of this Court's May 27, 1992 Order would become moot. Although this speculation may be correct if Plaintiffs were satisfied with a settlement reached with only one Defendant, it is also possible that if the summary judgment Order were appealed and reversed, Plaintiffs could gain a more favorable outcome at trial, or from settlement with both Defendants. However, since ConAgra presents no other authority or argument, and since the considerations expressed above indicate that certification is improper in this case, this Court need not express an opinion regarding ConAgra's settlement argument.
Based upon the foregoing considerations, Plaintiffs have failed to provide this Court with sufficient reasons to conclude that the required indicia exist to warrant immediate appeal.
For the reasons set forth above, this Court denies Plaintiffs' motion for entry of final judgment of this Court's Order of May 27, 1992.
IT HEREBY IS ORDERED, that Plaintiffs' motion for entry of final judgment of this Court's Order of May 27, 1992, pursuant to Fed.R.Civ.P. 54(b), is DENIED.
FURTHER, that the parties shall appear before this Court on Tuesday, August 25, 1992 at 9:00 am. in Part IV, Mahoney State Office Building, 65 Court Street, Buffalo, New York for a further status conference. Counsel shall be prepared to report at that time as to the status of settlement negotiations and, if needed, to set a trial date.
Dated: July 28, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge
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