Use of declaratory judgment as a nonfinal stepping stone looking toward further legal jousting does not promote the "just, speedy and inexpensive" (Fed.R.Civ.P. 1) resolution of the parties' underlying controversy. It is neither useful to the parties nor an appropriate employment of resources of the legal system. See Judicial Improvements Act of 1990, Public Law 101-650, 104 Stat 5089, enacting 28 USC 473.
Both combatants in the current dispute have adequate monetary remedies at law in lieu of a declaratory judgment which has the same effect if effective in this instance as an injunction; although injunctive relief may have advantages in certain circumstances, there appears to be no reason why such monetary remedies should not be required to be pursued in this instance. There has been no showing of irreparable injury which would result from treating this dispute as one resolvable through monetary relief. See Jackson Dairy v. H.P. Hood & Sons, 596 F.2d 70, 72 (2d Cir. 1979) (preliminary relief); Licata & Co v. Goldberg, 812 F. Supp. 403 (SDNY 1993); Laycock, "The Death of the Irreparable Injury Rule," 103 Harv L Rev 687 (Jan 1990).
This contract dispute does not call for an injunction or declaratory judgment amounting to specific performance. See Yorio, "In Defense of Money Damages for Breach of Contract," 82 Colum L Rev 1365 (1982).
Separate adjudication of less significant claims of the parties while the major issue (the amount due for relocation costs relating to the Tilcon's rock crushing plant) remains unresolved and as yet unresolvable because the costs have not yet been incurred, would necessarily lead to partial rulings subordinate in importance to the main dispute, and as to which separate enforceable judgments would be inappropriate under Fed.R.Civ.P. 54(b).
Granting a Rule 54(b) certificate authorizing entry of a partial but immediately enforceable judgment must be affirmatively justified. Arlinghaus v. Ritenour, 543 F.2d 461 (2d Cir. 1976). Existence of "just reason for delay" under that Rule precludes entering a partial but immediately enforceable judgment.
Partial judgments might require a party to pay a sum when much larger claims in favor of that party remain to be ruled upon. See United States v. Shaw, 309 U.S. 495, 501-04, 84 L. Ed. 888, 60 S. Ct. 659 (1940); United States v. Medlin, 767 F.2d 1104, 1107 (5th Cir. 1985); FSLIC v. Williams, 599 F. Supp. 1184, 1209-11 (D Md 1984); see also Poindexter v. Greenhow, 114 U.S. 270, 284-85, 29 L. Ed. 185, 5 S. Ct. 903 (1884) (Virginia Coupon Cases). This is appropriate only where the merits of the claim to be adjudicated first are clear and that of any larger claims far more uncertain. See generally Sears, Roebuck & Co v. Mackey, 351 U.S. 427, 437, 100 L. Ed. 1297, 76 S. Ct. 895 (1956).
That is not the situation here where the overall outlines of the main claim are clearer than other issues with the important exception that the amount due Tilcon for relocation which is the underlying issue involved cannot now be ascertained. It is certain that Orange must pay the cost of relocation - subject to possible adjustments based on inclusion of any unauthorized expenses that have not yet been incurred.
Separate adjudication of piecemeal motions are not favored under the Federal Rules of Civil Procedure. Rule 12 requires all defenses available to a party to be asserted in a single responsive proceeding or comprehensive motion. Separate summary judgment motions under Fed.R.Civ.P. 56 are permitted but they must be conducive to conservation of judicial resources and of benefit to the parties. A series of piecemeal summary judgments would waste resources of both the parties and the court, contrary to the objectives of Fed.R.Civ.P. 1. The 1993 amendments to that Rule provide that all of the Civil Rules be "administered" as well as "construed" to promote those goals.
The parties are ill served by pursuing through litigation the complex engineering, surveying, accounting and other issues raised by the parties, which are inherent in implementation of their agreement. If negotiated solutions fail, each party would benefit from agreed simplified final dispute resolution procedures. The parties are directed to consider selection of an agreed upon impartial umpire knowledgeable in one or more fields of expertise relevant to the relocation of the rock crushing plant and its costs, with plenary power to act as mediator or if necessary arbitrator, and with authority to utilize informal means of factfinding including ex parte investigations to the extent necessary.
The parties may within 45 days of the date of this memorandum order request that jurisdiction be reserved pending an actual financial dispute over amounts Orange may properly owe Tilcon for the relocation of the rock crushing plant once accomplished, including deductions for additional costs if any are incurred because of alleged departures from the agreement. Absent such request or a showing of cause by one or both parties within 45 days these cases will be dismissed without prejudice to renewal by either party when appropriate.
Dated: White Plains, New York
March 4, 1994
/s/ Gerard L. Goettel, USDJ
in the absence of
VINCENT L. BRODERICK, U.S.D.J.