United States District Court, S.D. New York
January 21, 2004.
SIEMENS WESTINGHOUSE FINER CORPORATION, -against- DICK CORPORATION, Defendant/Counterclaim Plaintiff; CONTINENTAL CASUALTY COMPANY and NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Defendants; DICK CORPORATION, ON BEHALF OF THE CONSORTIUM OF DICK CORPORATION AND SIEMENS WESTINGHOUSE POWER CORPORATION, and INDIVIDUALLY, Third-Party Plaintiff, against AES LONDONDERRY, L.L.C., SYCAMORE RIDGE, L.L.C., STONE & WEBSTER, INC., LIMBACH COMPANY and SACHS ELECTRIC COMPANY, Third-Party Defendants
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
By letters dated January 20 and January 21, 2004, plaintiff Siemens
Westinghouse Power Corporation ("SWPC") and defendant Dick Corporation
("Dick") requested clarification of the Court's Decision and Order dated
January 14, 2004 (the "January Order"). The January Order, among other
things, enters judgment on SWPC's behalf in accordance with a previous
Decision and Order, dated October 14, 2003 (the "October Order"), in
which the Court had stayed entry of the judgment. See Siemens
Westinghouse Power Corp. v. Dick Corp., No. 03 Civ. 364, 2003 WL 22383284
(S.D.N.Y. Oct. 14, 2003). SWPC correctly points out that the January
Order inadvertently omitted a term set forth in the October Order,
specifically, than defendants Continental Casualty Company and National
Fire Insurance Company of Hartford (collectively, the "Sureties") would
be jointly and severally liable to the extent of the liability of
defendant Dick Corporation ("Dick"). The January Order mentioned only
Dick's liability and omitted the Sureties" liability. Accordingly, the
January Order shall be amended, as stated in this Amended Order, to make
the appropriate change.
The parties dispute whether the January Order is intended to be a final
judgment for purposes of Federal Rule of 54(b), which addresses the
situation, such as here, where a court's decision disposes of some, but
not all, of the claims in a case. SWPC asserts that the January Order
should be considered a final judgment because the January Order directs
the Clerk of Court to enter judgment in its favor. SWPC apparently would
like to collect on the substantial sum of money to which it would be
entitled under the January Order. See 10 Charles Alan Wright, Arthur R.
Miller, & Mary Kay Kane, Federal Practice
and Procedure § 2661, at 155 (3d ed. 1998) ("Rule 54(b) . . . enables
. . . a writ: of execution to be issued to begin the process of
collecting any damage award. Dick counters that the January Order did net
make the requisite "express determination that there is no reason for
delay," see Fed.R.Civ.P. 54(b), and highlights "the normal rule that no
appeal be heard until the entire case has been completed." Wright,
Miller, & Kane, supra § 2659, at 109-110.
The Court did not intend the January Order to be a final judgment under
Rule 54(b), even though the Court used the language of "judgment." The
Court agrees with Dick that, as a general rule, the policy against
piecemeal review counsels against routinely entering otherwise
interlocutory orders as Rule 54(b) final judgments. See Arlinghaus v.
Ritenour, 543 F.2d 461, 463-64 (2d Cir. 1976). Should SWPC, or any other
party, seek such an order, they may do so by motion.
Accordingly, the January Order is amended to substitute the following
It is hereby,
ORDERED that the motion of defendant and third-party plaintiff Dick
Corporation ("Dick") for leave to amend and file a second amended answer
and counterclaim is granted in part and denied in part. To the extent
Dick seeks to add or update claims or defenses of negligent
fraudulent concealment, the motion is denied. In all other respects
the motion is granted; it is further
ORDERED that Dick, defendant Continental Casualty Company, and
defendant National Fire Insurance Company of Hartford are found liable,
jointly and severally, to plaintiff Siemens Westinghouse Power
Corporation ("SWPC") for breach of contract in the amount of
$15,041,327.98, in accordance with the Court's Decision and Order dated
October 14, 2003; it is further
ORDERED that the first amended third-party complaint of Dick is
dismissed as against third-party defendants Limbach Company, AES
Londonderry, LLC, Sycamore Ridge Co., LLC, and Stone & Webster, Inc.;
and it is finally
ORDERED that Dick's motion to amend its first amended third-party
complaint is denied.
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