United States District Court, S.D. New York
May 18, 2004.
FTI CONSULTING, INC., Plaintiff, -against- A. CAL ROSSI, JR., BASIC CAPITAL MANAGEMENT, INC., and GENE PHILLIPS, Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiff FTI Consulting, Inc. ("FTI") has moved pursuant to
Fed.R.Civ.P. 54(b) for entry of final judgment against defendants A. Cal
Rossi, Jr. ("Rossi") and Basic Capital Management, Inc. ("BCM") on FTI's
account stated claim. For the reasons set forth below, the motion is
FTI filed suit against Rossi, BCM and defendant Gene Phillips
("Phillips") on June 3, 2003, stating four causes of action, for breach
of contract, account stated, conversion and unjust enrichment. On
September 3, 2003, FTI moved for partial summary judgment on its account
stated claim. Summary judgment on the account stated claim was granted on
February 25, 2004. See FTI v. Rossi, 03 Civ. 4033, 2004 WL 359378
(S.D.N.Y. Feb. 25, 2004).
FTI filed the instant motion on March 12, 2004, seeking an order
directing the entry of final judgment pursuant to Rule 54(b). After
submission of briefs, oral argument was heard on the motion on April 28,
2004, at which time the motion was deemed fully submitted. Discussion As counsel for both plaintiff and defendants acknowledged at oral
argument, the instant case bears many similarities to the related case
Lankier, Siffert & Wohl v. Rossi, 02 Civ. 10055, before this Court. As
in this case, partial summary judgment was granted to the plaintiffs on
the account stated claim, see Lankier, Siffert & Wohl v. Rossi,
287 F. Supp.2d 398 (S.D.N.Y. 2003), and plaintiffs' request for entry of
final judgment was granted. See Lankier, Siffert & Wohl v. Rossi, 02
Civ. 10055, 2004 WL 541842 (S.D.N.Y. Feb. 19, 2004) ("Lankler"). FTI has
made the same arguments in favor of entry of judgment as were made by the
plaintiffs in Lankier, and Rossi and BCM, who are defendants in Lankier,
have made the same arguments in opposition.
In the absence of compelling new arguments from defendants, entry of
final judgment will be directed against Rossi and BCM. In order to enter
final judgment under Rule 54(b),
(1) multiple claims or multiple parties must be
present, (2) at least one claim, or the rights and
liabilities of at least one party, must finally be
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.
Ginett v. Computer Task Group, 962 F.2d 1085
, 1091 (2d Cir. 1992)
(quoting Rule 54(b)). As in Lankier, BCM and Rossi concede that the first
factor is satisfied. Further, the account stated claims have been finally
decided within the meaning of § 1291. The fact that the [FTI] also [has] claims based on
alternate legal theories does not alter that fact. In
addition, the grant of partial summary judgment
against BCM and Rossi entitles [FTI] to all relief
requested on those claims, despite the fact that [FTI]
did not also move for summary judgment against
Phillips. While there may remain issues regarding
apportionment and contribution among the defendants,
those issues have no impact on the question of whether
judgments may be executed against BCM and Rossi. BCM
and Rossi may litigate those issues separately without
affecting Plaintiffs' judgments.
Lankier, 2004 WL 541842, at *3. BCM and Rossi also argue that the Court
has not yet resolved the claims by Rossi and BCM against third party
defendant American International Specialty Lines Insurance Company
("AISLIC").*fn1 However, such claims are severable from the FTI's
account stated claim. The Third Circuit upheld the certification of final
judgment under Rule 54(b) by the district court even though the plaintiff
"ha[d] direct claims against other defendants, and [one defendant] ha[d]
cross-claims for contribution against these same parties." Waldorf v.
Shuta, 142 F.3d 601, 611 (3d Cir. 1998); see also Capital Transit Co. v.
District of Columbia, 225 F.2d 38, 40 (D.C. Cir. 1955) ("Third party
complaints seeking indemnity or contribution have in several instances
been held to present a severable claim, capable of separate final
adjudication under Rule 54(b). . . ."). Because the claims against
Phillips and AISLIC are not "`inherently inseparable' from or
`inextricably related' to" FTI's account stated claim against BCM and Rossi, Lankier 2004 WL 541842, at *4 (quoting Ginett, 962 F.2d at
1096), Rule 54(b) certification is appropriate.
The interests of sound judicial administration would be served by the
certification of the judgment in FTI's favor. The argument for entry of
judgment is even stronger in this action than in Lankler, because there
is only one plaintiff in this action, while in Lankier there were eight,
two of whom did not move for partial summary judgment. More
significantly, as in Lankler, if the judgment for FTI is satisfied on the
account stated claim, FTI will have received full relief, and it will not
need to litigate its remaining causes of action. Certification will also
not involve potentially duplicative work for this Court or the appellate
If the appellate court affirms the judgment, the
case will be at an end . . . If the judgment [is]
vacated, Plaintiff  will seek relief on the
alternate legal theories a course of action [it] may
undertake in the absence of certification.
Lankier, 2004 WL 541842, at *5.
Finally, as in Lankier, FTI has "been waiting for over a year and a
half for payment of substantial sums on [its] account stated. It is
therefore held, in the interest of sound judicial administration and the
financial hardship of Plaintiff, that there is no just reason for the delay of the entry of final judgment on
[FTI's claims] for account stated." Id. at *5. The Federal Post-Judgment
Rate of Interest Applies
FTI has submitted a proposed final judgment, which includes an award of
post-judgment interest calculated according to the New York statutory rate
of interest, which is nine percent. See CPLR §§ 5003, 5004. In support of
its argument that the New York rate of interest applies, FTI cites the
same district court cases employing the state interest rate as were cited
by the plaintiffs in Lankler. See, e.g., Inter-Ocean Industries, Inc. v.
Nasser, 02 Civ. 8499, 2003 WL 21639453, at *2 (S.D.N.Y. July 2, 2003);
Kinqvision Pay-Per-View, Ltd. v. Recio, 02 Civ. 6583, 2003 WL 21383826,
at *6 (S.D.N.Y. June 11, 2003).
In Lankler, however, it was determined that the federal post-judgment
interest statute, 28 U.S.C. § 1961(a), which applies to "any money
judgment in a civil case recovered in a district court," preempted the
state interest statute. See Lankler, 2004 WL 541842, at *5-6. As in
the federal rate of post-judgment interest will
apply to the judgments filed by [FTI]. Amended
judgments should accordingly be filed by [FTI],
with 10 days notice given to the defendants to
raise further objections.
Id. at *6. Conclusion
The objections of BCM and Rossi to entry of final judgments on FTI's
account stated claim pursuant to Rule 54(b) are rejected, and it is
determined that there is no just reason for the delay of entry of the
judgments. The clerk is therefore directed to enter judgment on the
account stated claim. The judgments will be amended to reflect the
federal rate of post-judgment interest pursuant to 28 U.S.C. § 1961(a).
It is so ordered.