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THE CAYUGA INDIAN NATION OF NEW YORK v. PATAKI

March 11, 2002

THE CAYUGA INDIAN NATION OF NEW YORK, ET AL., PLAINTIFFS, AND THE SENECA-CAYUGA TRIBE OF OKLAHOMA AND THE UNITED STATES OF AMERICA, PLAINTIFF-INTERVENORS,
V.
GEORGE E. PATAKI, AS GOVERNOR OF THE STATE OF NEW YORK, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Neal P. McCURN, Senior United States District Judge.

        MEMORANDUM-DECISION AND ORDER

The court assumes familiarity with this protracted land claim litigation, spanning more than two decades, based upon transactions occurring over two hundred years ago, and generating no less than 17 written decisions. Following two separate trials, on October 2, 2001, the court entered judgment in this case in the amount of $247,911,999.42, representing the jury's February 17, 2000, damage award of $36,911,672.62, and the court's subsequent prejudgment interest award of $211,000,326.80.

Not unexpectedly, entry of this judgment resulted in a flurry of motion activity. On October 17, 2001, three sets of motions were filed: (1) post-judgment motions setting forth six different grounds for relief on behalf of the State itself, as well as on behalf of the various State agencies and individual agency heads named in the original complaints ("the State");*fn1 (2) motions by the Cayuga Indian Nation of New York and the Seneca-Cayuga Tribe of Oklahoma ("the tribal plaintiffs") to amend the judgment and a "conditional motion" for a new trial; and (3) the non-State defendants'*fn2 motion to amend the judgment. Several days later, on October 22, 2001, the plaintiff-intervenor the United States of America ("U.S.") filed a motion seeking to dismiss all defendants except the State from its complaint in intervention.

For analytical purposes, these motions can be broadly divided into two categories — those pertaining to amendment of the judgment and those seeking a new trial. In the former group are: (1) the non-State defendants' motion to amend the judgment pursuant to Fed.R.Civ.P. 52(b) and 52(e), making it final as against all parties; (2) the tribal plaintiffs' motion to amend the judgment allowing an immediate appeal of same in accordance with Fed.R.Civ.P. 54(b); and (3) the U.S.' motion to dismiss the non-State defendants from its complaint in intervention. As will be seen, although not identical, these three motions are closely related and hence the court will analyze them together; it will then separately analyze the remaining motions.

I. Amendment of Judgment

Background

The two motions to amend the judgment and the U.S.' motion to dismiss must be viewed in the larger context of this decades-old litigation, and particularly this court's decision in Cayuga Indian Nation of New York v. Pataki, 79 F. Supp.2d 66 (N.D.N.Y. 1999) ("Cayuga XI"). Partially to avoid the unfathomable task of "conducting separate jury trials with respect to the approximately 7,000 private individual landowners, as well as the [other] non-State defendants[,]" among other things, in Cayuga XI this court granted the U.S.' motion "to first proceed to trial against the State[.]" Id. at 74. "[T]he only direction opposition" to that motion was from the State "which argue[d] . . . that separate trials would be inefficient given that it intends to offer basically the same proof at any and all trials conducted in connection with this action." Id. at 76. The court gave little credence to that opposition argument explaining, "[t]he only possibility of a substantial overlap in proof is remote indeed, . . . given the repeated assurances by both the State and federal governments that if the court grants this motion for a separate trial, that will end this litigation." Id.

Then the court went on to enumerate the various assurances made by the U.S., the State and the tribal plaintiffs that once a judgment was entered against the State, those parties would not be pursuing further claims against the non-State defendants. See id. at 76-77. Given those assurances, the court found that "the likelihood of future subsequent trials seem[ed] all but moot[.]" Id. at 77. The court concluded by "stress[ing] that the non-State defendants, which by court order are not participating in this upcoming trial, are not bound in any way, such as through the application of collateral estoppel or res judicata, by any determinations made in the State's damage trial." Id. at 77-78 (emphasis added). It is against this procedural backdrop which the court is considering the present motions to amend the judgment in this case, as well as the U.S.' motion to dismiss.

Discussion

A. Rule 52(b)

Offering two distinct bases for this motion, the non-State defendants first assert that the judgment should be amended to indicate that it is final as against all parties because otherwise there is a possible Seventh Amendment violation. Anticipating that despite prior assurances to the contrary, including those made in connection with the U.S.' motion for a separate trial, the plaintiffs will attempt to recover against the non-State defendants in subsequent trials, the non-State defendants are raising the possibility of inconsistent verdicts and hence a violation of the Seventh Amendment's guarantee to a jury trial. More specifically, the non-State defendants reason that in the event of future trials, their Seventh Amendment rights would be violated because a second jury would be reexamining facts and issues previously decided by the jury in Phase I, a proceeding in which those defendants did not participate.

As another reason for amending the judgment herein, the non-State defendants are relying upon the doctrine of judicial estoppel. In general, judicial estoppel "`prevents a party from asserting a factual position in a legal proceeding that is contrary to a position previously taken by [the party] in a prior legal proceeding.'" Bridgeway Corp. v. Citibank, 201 F.3d 134, 141 (2d Cir. 2000) (quoting Bates v. Long Island R.R., 997 F.2d 1028, 1037 (2d Cir. 1993)). Because in Cayuga XI the tribal plaintiffs, the U.S. and the State vouched that after completing litigation against the State, those parties would not be pursuing further trials against the non-State defendants, see Cayuga XI, 79 F. Supp.2d at 77, the non-State defendants contend that "the tribal plaintiffs and the [U.S.] should be judicially estopped from seeking further trials against th[os]e . . . defendants[;]" and based upon that estoppel, the court should amend the judgment to indicate that it is final as against all parties. See Memorandum of Law in Support of the Non-State Defendants' Motion to Amend the Judgment at 7. The non-State defendants are seeking this amendment "so that the judgment is final and the parties may proceed with an appeal of all issues they deem appropriate." Dorr Aff. at 2, ¶ 4. Alternatively, these defendants are "request[ing] that [the court] issue a scheduling order for motions for summary judgment on the issue of damages against the non-State defendants." Id. at 7, ¶ 26.

The State does not oppose this Rule 52(b) motion to amend. But if the court grants such relief, as the State observes, plainly there would be "no need for separate Rule 54(b) certification[,]" such as the tribal plaintiffs are seeking. See State Defendants' Memorandum of Law in Opposition to the Cayuga Plaintiffs' Motion to Amend the Judgment ("St. Oppn. Memo.") at 1, n. 1; and Letter from David Roberts to Court of 11/19/01 ("Roberts Ltr") at 1.

The tribal plaintiffs respond that the non-State defendants' judicial estoppel argument is similarly unavailing. In particular, the tribal plaintiffs assert that judicial estoppel does not apply here because the remarks upon which the non-State defendants are relying in this regard are "unsworn precatory remarks of counsel in different stages of the same proceeding[.]" Cayugas' Memorandum of Law in Opposition to Defendants' Post-Judgment Motions ("Cay. Oppn. Memo.") at 9. At a minimum, the tribal plaintiffs contend that this Rule 52(b) motion to amend is "premature[.]" Id. at 12.

The U.S. does not directly respond to the non-State defendants' Rule 52(b) motion to amend. The U.S. reasons, however, that its motion to dismiss all of the defendants except the State from its complaint in intervention renders moot "the non-State Defendants' concern that the [U.S.] would seek further trials or remedies from them[.]" See Plaintiff-Intervener United States' Response to Defendants' Post-Judgment Motions ("U.S. Resp.") at 34. The U.S. is overlooking the fact though that unless the court grants the non-State defendants' Rule 52(b) motion to amend the judgment, because the tribal plaintiffs are not making a similar dismissal motion, the non-State defendants would remain defendants in this action at least with respect to the tribal plaintiffs' complaints. In any event, consistent with the representations it made in connection with its motion for a separate trial against only the State as a defendants, the U.S. once again asserts that it will not be "pursu[ing] any further trials or remedies against" the non-State defendants. See id. at 34-35 (emphasis added).

The non-State defendants retort that "it appears that the parties to this lawsuit all concur that the judgment should be amended to reflect that it is final and that no further trials should be held to award damages against the non-State defendants." Affidavit in Response to the Tribal Plaintiffs' Conditional Post Trial Motion and in Further Support of the Non-State Defendants' Motion to Amend the Judgment (Nov. 15, 2001) at 1-2, ¶ 2 (emphasis added). Clearly the non-State defendants have selectively reviewed the post-trial submissions because, as the preceding outline of the same reveals, the parties do not all agree that the court should amend the judgment in accordance with Rule 52(b). Accordingly, it is necessary for the court to more closely analyze the propriety of granting the non-State defendants' Rule 52(b) motion.

1. Seventh Amendment

The Seventh Amendment, which protects the right to a jury trial, reads as follows:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

U.S. Const. amend. VII. This "Reexamination Clause does not limit or alter trial judges' historically board discretion to sever issues for trial[,]" Simon v. Philip Morris Incorporated, 200 F.R.D. 21, 34 (E.D.N.Y. 2001); but it does prohibit a given issue from being tried by different, successive juries. See In re Visa Check/Mastermoney Antitrust Litigation, No. 00-7699, 2001 WL 1242717, at *29 n. 9 (2d Cir. Oct. 17, 2001) (citing Blyden v. Mancusi, 186 F.3d 252, 268 (2d Cir. 1999)). Thus, for example, in Blyden the Second Circuit found a Seventh Amendment violation where "both the liability . . . and the damages juries were asked to determine whether the same acts constituted `reprisals,'" thus "creat[ing] the real possibility — amounting to a probability — that acts found to be `reprisals' by the liability jury were different from the acts found to be `reprisals' by the damages juries." Blyden, 186 F.3d at 268 and 269. By engaging in "sound case management," however, such as "carefully defin[ing] the roles" of the successive juries," and "carefully craft[ing] the verdict form[s][,]" it is possible for courts to avoid running afoul of the Seventh Amendment. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 169 n. 13 (2d Cir. 2001), pet. for cert. filed, 70 USLW 3429 (Dec. 17, 2001) (NO. 01-908).

In contrast to Blyden, at least at this juncture, there has been no showing of an actual Seventh Amendment violation in the present case. In fact, in the court's opinion the non-State defendants' claim of a Seventh Amendment violation is purely conjecture given the pledges catalogued by this court in Cayuga XI that the tribal plaintiffs, the U.S. and the State would not be pursuing further remedies against the non-State defendants. See Cayuga XI, 79 F. Supp.2d at 76-77. What is more, in the extremely unlikely event of subsequent trials against the non-State defendants, a violation of the Seventh Amendment would not necessarily follow because, as mentioned above, in Cayuga XI this court expressly held that the non-State defendants would not be bound in any way by determinations made in the State's trial. See id. at 77-78. Therefore, even if the practically inconceivable occurs, and there are subsequent trials against the non-State defendants, those defendants would not be bound by Phases I and II wherein the State was the only participating defendant.

Finally, despite the Seventh Amendment's guarantee to a jury trial, the court retains "substantial discretion to employ appropriate mechanisms of jury control[.]" See Simon, 200 F.R.D. at 33. Thus even if, as the State suggested in Cayuga XI, there is a substantial overlap in evidence between Phases I and II and any subsequent proceedings, it does not necessarily follow that a violation of the non-State defendants' Seventh Amendment rights would result. That is so because it would be possible to structure any subsequent trials in such a way so as to avoid violating the non-State defendants' right to a jury trial. See Houseman v. U.S. Aviation Underwriters, 171 F.3d 1117, 1127 (7th Cir. 1999) (citation omitted). In light of the foregoing, the non-State defendants' anticipatory constitutional breach does not justify amending the judgment to make it final as against all parties.

2. Judicial Estoppel

The non-State defendants' reliance upon judicial estoppel as a basis for amending the judgment herein is similarly misplaced. Positing that "[t]he tribal plaintiffs and [U.S.] should be judicially estopped from seeking further trials because they pledged to the Court that a single trial against the State would end" this litigation, the non-State defendants reason that "permit[ting] plaintiffs to backpedal now would seriously undermine the Court's decision to allow for a separate trial." Dorr Aff. at 6, ¶ 23. The court disagrees, and for the reasons set forth below declines to apply the "rare remedy" of judicial estoppel as a means of amending the judgment this case. See In re Bradlees Stores, Inc., No. 00-16033, 2001 WL 1112308, at *10 (S.D.N.Y. Sept. 20, 2001) (citation omitted); see also In re Venture Mortgage Fund, L.P., 245 B.R. 460, 472 (Bankr.S.D.N.Y. 2000) (internal quotation marks and citation omitted) (emphasis added) (Judicial estoppel "is a rarely used doctrine designed `to protect the court, not a party, from a party's chicanery.'").

"Although [the Supreme Court] ha[s] not had occasion to discuss [judicial estoppel] elaborately," it long ago explained that doctrine as follows:

[W]here a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him.

New Hampshire v. Maine, 532 U.S. 742, ___, 121 S.Ct. 1808, 1814 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689 (1895)). In contrast to equitable estoppel, "which is designed `to ensure fairness in the relationship between parties[,]'" judicial estoppel is "a means to `preserve the sanctity of the oath' or to `protect judicial integrity by avoiding the risk of inconsistent results in two proceedings.'" Simon v. Safelite Glass Corp., 128 F.3d 68, 71 (2d Cir. 1997) (quoting Bates, 997 F.2d at 1037-38)) (other citation omitted). "Because the rule is intended to prevent improper use of judicial machinery, . . ., judicial estoppel is an equitable doctrine invoked by a court at its discretion[.]" New Hampshire, 532 U.S. at ___, 121 S.Ct. at 1815 (internal quotation marks and citations omitted).

In New Hampshire v. Maine, the Supreme Court acknowledged that "the circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle[.]" Id. (citations omitted). Despite that, the Court went on to identify "several factors [which] typically inform the decision whether to apply the doctrine in a particular case[.]" Id. "First, a party's later position must be clearly inconsistent with its earlier position." Id. (internal quotation marks and citations omitted) (emphasis added). "Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled[.]" Id. (internal quotation marks and citations omitted). The third factor identified by the Supreme Court "is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." Id. (citations omitted).

Before examining whether the non-State defendants are entitled to rely upon judicial estoppel, it should be noted that in New Hampshire the Supreme Court stressed that by "enumerating th[o]se factors, [it] [was] not establish[ing] inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel." Id. (emphasis added). Indeed, the Supreme Court, like the Second Circuit, has noted that a court's inquiry in assessing the applicability of judicial estoppel in a given case is inherently fact specific. See id.; see also See United States v. West Productions, Ltd., 168 F. Supp.2d 84, 88 (S.D.N.Y. 2001). Thus, in terms of the first element, the Second Circuit has instructed courts to look not only at the nature of the prior position, but also whether that position was taken in a "prior proceeding." See West Productions, 168 F. Supp.2d at 87 (citing Bates, 997 F.2d at 1037) (emphasis added).

In assessing the first component of judicial estoppel, the court will assume for the sake of argument that the tribal plaintiffs, the U.S., or both are taking an inconsistent position with respect to the issue of future trials against the non-State defendants (i.e. they will be pursuing such trials despite contrary assurances made in connection with the U.S.' earlier motion for a separate trial against the State alone). Even giving the non-State defendants the benefit of that assumption, the court finds that those defendants are not entitled to rely upon judicial estoppel to amend the judgment because the plaintiffs did not take an inconsistent position in a prior proceeding. Significantly, "[t]he Second Circuit has never held that judicial estoppel can apply to inconsistent positions in the same proceeding[.]" Tuff-N-Rumble Management v. Sugarhill Music Pub., 99 F. Supp.2d 450, 457 (S.D.N.Y. 2000) (citations omitted) (emphasis added). "There are good reasons for not extending [judicial estoppel] to cover inconsistencies in the same proceeding[,]" as Judge Sweet soundly reasoned, "including the tensions between judicial estoppel and the liberal pleading standards of the Federal Rules, which permits alternative and inconsistent defenses, and the fact that the ultimate purpose of judicial estoppel, to prevent abuse of the courts by litigants, is easier to control when inconsistent facts are asserted in the same proceeding." Id.; see also United States Fidelity & Guaranty Co. v. Petroleo Brasileiro S.A., No. 98 CIV 3099, 2001 WL 300735, at *10 (S.D.N.Y. March 27, 2001) (internal quotation marks and citations omitted) ("Circumspection in the use of judicial estoppel is warranted because of a concern for offending the liberal spirit of the federal pleading rules, and, in particular because of its tension with the alternative pleading provisions of Fed.R.Civ.P. 8(e)(2)."). In the present case, because the purportedly inconsistent statements were made earlier in this same proceeding and not in a prior, separate legal proceeding, the court agrees with the tribal plaintiffs that the non-State defendants have fallen short in satisfying the first judicial estoppel element.

Furthermore, "[b]ecause judicial estoppel is invoked to protect the integrity of the judicial process from the threat of inconsistent results, there must be a true inconsistency between the statements in the two proceedings. If the statements can be reconciled there is no occasion to apply an estoppel." Simon, 128 F.3d at 72-73 (citing, inter alia, AXA Marine & Aviation Ins. (UK) Lt. v. Seajet Indus. Inc., 84 F.3d 622, 628 (2d Cir. 1996)) (emphasis added). Although they recognize that a prior inconsistent statement is a prerequisite to applying judicial estoppel, the non-State defendants have not made any attempt to show such an inconsistency. The non-State defendants' focus upon what they deem to be the "unequivocal" nature of the tribal plaintiffs' and the U.S.' earlier statements, i.e. granting the U.S.' motion for a separate trial would mean "no further trials against the non-State defendants[.]" See Non-St. Def. Supp. Memo. at 8-9 (footnote omitted). The non-State defendants are missing the point however. It is not the unequivocal nature of the prior statement which is significant; rather it is the inconsistency of the subsequent statement which is determinative for judicial estoppel purposes.

Here, with respect to the plaintiff-intervenor U.S., there is no "clear inconsistency" in terms of its position regarding the non-State defendants. In fact if anything, the U.S.' position is even stronger than it was in 1999 when it argued for a separate trial against the State as the sole defendant. At that time, the U.S. declared that "the case would end right there[]" if it obtained a judgment against the State, and "[t]here is no need for the[] 7,000 individual[] [landowners] to ever go to court." See Cayuga XI, 79 F. Supp.2d at 76 (internal quotation marks and citations omitted). Now, the U.S. is backing up those earlier statements with actions. As will discussed more fully below, after reviewing the New York land claims, including the present one, "[t]he Departments of Justice and the Interior . . . concur with the view of the prior Administration that it is the policy of the [U.S.] not to seek relief from parties in the New York land claims that acquired lands from the State or subsequent landowners in good faith." United States' Motion to Dismiss all Defendants from United States' Complaint Excepting New York State at 5 (emphasis added). "[T]o implement this policy[,]" the U.S. is now seeking to "delet[e] from . . . [its] complaint all claims and remedies against all parties other than New York State." Id. (emphasis added). In light of the foregoing, the non-State defendants are extremely hard-pressed to show a "clear inconsistency" between the U.S.' prior litigation strategy with respect to the non-State defendants and the position which it is advancing as part of these post-judgment motions.

It is true that in contrast to the U.S., the tribal plaintiffs are not yet moving for dismissal of the non-State defendants from this action. The court is unwilling to find a "true inconsistency," however, between the tribal plaintiffs' earlier assertion that "as a practical matter if there is one trial against the State that will be it[,]" and their relative silence now on that issue. See Cayuga XI, 79 F. Supp.2d at 77 (internal quotation marks and citations omitted). Indeed, the tribal plaintiffs' willingness to seek Rule 54(b) certification of an immediate appeal, in this court's view, conforms to its position several years ago in this litigation that a trial against the State alone would for all intents and purposes end this lawsuit. Thus far, the tribal plaintiffs have not affirmatively indicated that they intend to change horses in mid-stream and aggressively pursue claims against the non-State defendants. Therefore, as with the U.S., the court is unable to find a "clear inconsistency" in terms of the tribal plaintiffs' position regarding pursuing further trials against the non-State defendants.

In the absence of prior inconsistent statements in an earlier proceeding, none of the policies underlying judicial estoppel are thwarted in this case. This is not a situation where "plaintiffs have tried to obtain an advantage over their adversaries by litigating on one theory, and then seek[ing] an inconsistent advantage by pursuing an incompatible theory.'" Motrade v. Rizkozaan, Inc., No. 95 Civ. 6545 (DC), 1998 WL 108013, at *6 (S.D.N.Y. March 11, 1998) (internal quotation marks and citation omitted). In fact, as just mentioned and as will be discussed more fully below, the U.S. is holding steadfast to the position it took in 1999 when it moved for a separate trial against the State; it will not be seeking any relief against the non-State defendants in this action. To be sure, at least at this point the tribal plaintiffs are not following the U.S.' lead by making a similar motion to dismiss, but the current circumstances are a far cry from "a party [which] has `sold' its position to one court[,]" and [which] is now "`turn[ing] around and repudiat[ing] it in order to have a second victory.'" See Motrade, 1998 WL 108013, at *6 (quoting AXA Marine, 84 F.3d at 628 (other citation and quotation omitted). Moreover, because the Second Circuit has "limit[ed] the doctrine of judicial estoppel to situations where the risk of inconsistent results with its impact on judicial integrity is certain[,] see Simon, 128 F.3d at 72 (citing Bates, 997 F.2d at 1038) (emphasis added), and because such certainty is lacking here, there is no reason for the court to invoke this "rare remedy."

At the end of the day, the non-State defendants have failed to convince this court that it should exercise its discretion and apply the doctrine of judicial estoppel to amend the judgment. The non-State defendants have not met their burden of showing that any of the plaintiffs made a "truly inconsistent[]" statement; that is one which "necessarily precludes the truth of the other," see Hotel Syracuse, Inc. v. City of Syracuse Industrial Development Agency, 155 B.R. 824, 837 (Bankr.N.D.N.Y. 1993) (citations omitted), much less that such a statement was made in a prior, "separate legal proceeding[][.]" See Kunica v. St. Jean Financial, Inc., 233 B.R. 46, 58 (S.D.N.Y. 1999) (citations omitted) (emphasis added). Accordingly, there is no need for the court to address the remaining judicial estoppel factors. What is more, the non-State defendants' inability to meet their burden of proof in this regard precludes granting their Rule 52(b) motion to amend the judgment based upon a finding of judicial estoppel. See Bonnie & Co. Fashions, Inc. v. Bankers Trust Co., 18 F. Supp.2d 297, 301 (S.D.N.Y. 1998) (citation omitted) (denying defendant's motion for judicial estoppel where defendant could not meet its burden of establishing the second element).

To conclude, given the tenuous nature of both the non-State defendants' Seventh Amendment and judicial estoppel arguments, the court denies without prejudice their motion to amend the judgment, to make it final as against all parties. As will be seen, however, the denial of this motion does not mean that an immediate appeal cannot be had in this case; but the scope of that appeal will not be as broad as the non-State defendants are advocating on this Rule 52(b) motion.

B. Rule 54(b) Certification

Like the non-State defendants, the tribal plaintiffs are moving to amend the judgment but they are relying upon a different federal rule. Instead of granting the non-State defendants' motion to amend the judgment making it final as against all parties under Rule 52(b), the tribal plaintiffs maintain, as Fed.R.Civ.P. 54(b) allows, that the court should certify for immediate appeal the October 2, 2001 judgment wherein the State is the only named defendant. Given the court's denial of the non-State defendants' motion to amend the judgment, this motion for certification becomes all the more significant.

"When [a] district court has resolved at least one but fewer than all of the claims in an action, Rule 54(b) permits the court `to direct the entry of a final judgment `only upon an express determination that there is no just reason for delay.'" L.B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 86 (2d Cir. 1998) (quoting Fed.R.Civ.P. 54(b)) (emphasis added). Therefore, as Rule 54(b) "makes clear . . . if the District Court does not both direct entry of judgment and expressly determine that there is no just reason for delay, then its order or decision is not final, whether or not it is labeled a `judgment.'" HBE Leasing Corp. v. Frank, 48 F.3d 623, 631 (2d Cir. 1995) (footnote omitted). Following issuance of this court's decision in Cayuga Indian Nation of New York v. Pataki, 165 F. Supp.2d 266 (N.D.N.Y. 2001) ("Cayuga XVI"), the Clerk of the Court entered judgment in accordance therewith, but that judgment did not include a "no just reason for delay" determination because at that time none of the parties were seeking entry of a final judgment under Rule 54(b). Thus, despite the State's assertion to the contrary, see Memorandum of Law in Support of State Defendants' Post-Judgment Motions ("St. Supp. Memo.") at 34, the absence of language allowing for immediate appeal of the October 2nd judgment was intentional. Now, however, the issue of whether the court should certify that judgment for immediate appeal is squarely before the court on the tribal plaintiffs' current motion made pursuant to Rule 54(b).

A district court has discretion to enter a final judgment in accordance with the plain language of Rule 54(b), but "the exercise of [same] must follow the procedures set out [therein.]" HBE Leasing, 48 F.3d at 631 (emphasis added). More specifically, in exercising its discretion under that Rule, "`(1) multiple claims or multiple parties must be present, (2) at least one claim, or the rights or liabilities of at least one party, must be fully decided within the meaning of 28 U.S.C. § 1291, and (3) the district court must make an express determination that there is no just reason for delay and expressly direct the clerk to enter judgment.'" Ishihara Chemical Co., Ltd., No. 99 MISC. 232(FB), 2000 WL 1898484, at *1 (E.D.N.Y. Dec. 19, 2000) (quoting Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1091 (2d Cir. 1992)) (emphasis added). Although "[t]he Second Circuit has cautioned against the overuse of Rule 54(b) certification," at the same time it "has also . . . sanctioned the use of [such] certification `where there are interest[s] of sound ...

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