United States District Court, S.D. New York
January 5, 2005.
CORRESPONDENT SERVICES CORPORATION, Interpleader Plaintiff,
J.V.W. INVESTMENT LTD., FIRST EQUITIES CORPORATION OF FLORIDA, J.V. WAGGONER, and DONAL KELLEHER, Interpleader Defendants, and SUISSE SECURITY BANK AND TRUST, LTD., Additional Defendant on Cross-Claims.
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
MEMORANDUM OPINION and ORDER
On February 3, 2004, cross-claim defendant Suisse Security Bank
and Trust, Ltd. ("SSBT") moved for an order pursuant to Rule 12
(h)(3) of the Federal Rules of Civil Procedure dismissing Count
Three of the amended complaint of interpleader plaintiff
Correspondent Services Corporation ("CSC") with prejudice for
lack of subject matter jurisdiction, vacating this Court's
previous orders of attachment of SSBT's assets, and awarding SSBT
damages pursuant to CPLR 6212(e). J.V.W. Investments, Ltd. and J.
Virgil Waggoner (collectively, the "Waggoner Parties") opposed
SSBT's motion and moved for leave to file a surreply memorandum.
In an opinion issued on September 29, 2004, both motions were
granted. See Correspondent Services Corp. v. JVW Investments, Ltd.,
No. 99 Civ. 8934 (RWS), 2004 WL 2181087 (S.D.N.Y. Sept. 29, 2004)
(the "Opinion"). As set forth in the Opinion, this action was
"dismissed in its entirety for lack of subject matter
jurisdiction," id. at *18, although the Court retained
jurisdiction to assess the costs and fees awarded to SSBT for the
wrongful attachment of its assets. See id. at *14-18.
In correspondence dated October 15, 2004, SSBT and the Waggoner
Parties separately sought entry of judgment with regard to the
Opinion pursuant to Rule 54(b) of the Federal Rules of Civil
Procedure and in accordance with the terms of a stipulation and
order entered on February 25, 2004. On that same date, the Clerk
of Court entered judgment pursuant to the Opinion and the
Waggoner Parties filed a notice of appeal from that judgment. In
a letter dated December 27, 2004, SSBT renewed the application
for entry of judgment pursuant to Rule 54(b). For the reasons set
forth below and in the accompanying order, the application for
entry of judgment pursuant to Rule 54(b) is hereby granted.
The Rule 54(b) Standard
Rule 54(b) provides in relevant part that:
When more than one claim for relief is presented in
an action, whether as a claim, counterclaim,
cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry
of a final judgment as to one or more but fewer than all of the claims or
parties only upon an express determination that there
is no just reason for delay and upon an express
direction for the entry of judgment.
Fed.R.Civ.P. 54(b). Thus, to enter judgment pursuant to Rule
(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, Inc., 962 F.2d 1085
, 1091 (2d
Cir. 1992) (quoting Fed.R.Civ.P. 54(b)) (emphasis in
The first two factors identified in Ginett "address the issue
of whether rule 54(b) applies at all to the circumstances of the
case." Id. A claim is deemed finally decided "[i]f the decision
`ends the litigation [of that claim] on the merits and leaves
nothing for the court to do but execute the judgment' entered on
that claim." Id. at 1092 (quoting Coopers & Lybrand v.
Livesay, 437 U.S. 463, 467 (1978)) (second alteration in
original); accord Ellis v. Israel, 12 F.3d 21, 23 (2d Cir.
Once the application of Rule 54(b) to the circumstances of the
case has been established, the question of whether to direct
entry of judgment is committed to the sound discretion of the district court, see Ginett, 962 F.2d at 1092, although it
"must be considered in light of the goal of judicial economy as
served by the `historic federal policy against piecemeal
appeals.'" O'Bert ex rel. Estate of O'Bert v. Vargo,
331 F.3d 29, 41 (2d Cir. 2003) (quoting Curtiss-Wright Corp. v. Gen.
Elec. Co., 446 U.S. 1, 8 (1980)) (internal quotation marks
omitted). "[I]t does not suffice for the district court to
announce its determination that `there is no just cause for
delay' in conclusory form. Rather, its certification must be
accompanied by a reasoned, even if brief, explanation of its
conclusion." Id.; see also Harriscom Svenska AB v. Harris
Corp., 947 F.2d 627, 629 (2d Cir. 1991); Hudson River Sloop
Clearwater, Inc. v. Dep't of Navy, 891 F.2d 414, 419 (2d Cir.
In reaching a reasoned conclusion, "[t]he proper guiding star,
as the Supreme Court has emphasized, is `the interest of sound
judicial administration.'" Ginett, 962 F.2d at 1095 (quoting
Curtiss-Wright, 446 U.S. at 8). "[N]ow that the garden variety
civil complaint often involves multiple claims and/or multiple
parties, we cannot, as the Supreme Court has recognized, hide
behind the old `infrequent harsh case' chestnut" previously used
to limit the application of Rule 54(b). Id. With the interest
of sound judicial administration as the goal,
Only those claims "inherently inseparable" from or
"inextricably interrelated" to each other are
inappropriate for rule 54(b) certification. When the
claims are "separable" or "extricable" from each
other, there is generally no reason to disturb the district court's
exercise of its discretion.
Ginett, 962 F.2d at 1096; see also Hudson River Sloop
Clearwater, 891 F.2d at 418 (concluding that the certification
of a judgment on certain claims was proper where the claims
"involve a unique factual scenario . . . and raise legal issues
wholly distinct from those that remain for trial" and "any
subsequent appeals on the remaining claims . . . will involve
questions of fact and law entirely distinct" from those at stake
in the certified claims).
Although the Court of Appeals for the Second Circuit has
cautioned that certification under Rule 54(b) following the
filing of a notice of appeal is not "generally sound practice,"
it has indicated that a Rule 54(b) certification issued shortly
after a notice of appeal had been filed "would apparently be
honored in this circuit." Volvo N. Am. Corp. v. Men's Int'l
Professional Tennis Council, 839 F.2d 69, 71 n. 2 (2d Cir.
1988); see also Leonhard v. United States, 633 F.2d 599,
611 (2d Cir. 1980) ("In the absence of prejudice to the
nonappealing party, this Court . . . has declined to dismiss
premature notices of appeal where subsequent actions of the
district court have imbued the order appealed from with
finality.") (collecting cases). Discussion
As set forth in the Opinion and the prior decisions in this
matter, this case has enjoyed a tortured history as to
jurisdictional matters. In view of the stipulation and order
entered on February 25, 2004 setting forth the Court's intention
to enter judgment pursuant to Rule 54(b) in the case that SSBT's
motion was granted, and in view of the desirability of a
determination of the principal and most significant issue in this
case the matter of this Court's jurisdiction the application
for certification of the judgment pursuant to Rule 54(b) is
The first two factors identified in Ginett are satisfied
here, as there are multiple claims and parties present in the
action, and, insofar as the amount of costs and fees to be
awarded SSBT pursuant to the Opinion constitutes an issue
remaining for resolution, not all aspects of the case were fully
disposed of by the Opinion and subsequent judgment entered. As to
the third and final factor of the Ginett analysis, there is no
just reason for delay here, as a determination on appeal of the
crucial issue of the Court's subject matter jurisdiction will
serve the interests of justice and of judicial economy by
expediting a final resolution to this case. Accordingly, insofar as the judgment entered on or about
October 15, 2004 was not a final judgment, the judgment is hereby
certified pursuant to Rule 54(b), Fed.R.Civ.P., in accordance
with this opinion and order and the accompanying order, to which
the parties named herein have stipulated.
It is so ordered.
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