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Appealing Partial Summary Judgment Under Rule 54(b)

Posted by James Juo | May 04, 2022 | 0 Comments

Typically, a district court decision is appealable only if there has been a “final decision” on all claims in the case. 28 U.S.C. §1291. For example, a summary judgment of all claims in the case is appealable, but a partial summary judgment of only some of those claims typically is not appealable while the rest of the case remains pending and ongoing. When multiple claims or parties are involved in an action, however, Rule 54(b) of the Federal Rules of Civil Procedure permits entry of a final judgment as to some but not all of all of the claims or parties, so that an interlocutory appeal may be taken rather than wait until after trial should the losing party wish to take an immediate appeal.

A certification under Rule 54(b) to enter a final judgment of fewer than all of the claims in an action “is only appropriate when a district court adheres strictly to the rule's requirement that a court make two express determinations.” Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) (emphasis added). Namely, (1) the judgment upon which certification is sought is final such that “the claims resolved are distinct and separable from the claims left unresolved;” and (2) there is no just reason to delay entry of judgment. Id. (discussing “claims that are so intertwined (have so much factual overlap) as to be inseparable”); McKibben v. Chubb, 840 F.2d 1525, 1528 (10th Cir. 1988) (“Certification under Rule 54(b) is a two-step process.”).


First, with respect to the finality of an adjudicated claim, “[w]hile the exact definition of ‘claim' for purposes of Rule 54(b) is unsettled, . . . a ‘claim' is generally understood to include all factually or legally connected elements of a case.” Okla. Turnpike, 259 F.3d at 1242 (citations omitted). Whether the grant of summary judgment disposes a claim that is distinct and separable from the unresolved claims is a jurisdictional question of law. Id. at 1242–43 (finding a lack of jurisdiction where the judgment “only partially disposed of a class of claims that . . . should instead be disposed of together”); accord Attias v. CareFirst, Inc., 969 F.3d 412, 417 (D.C. Cir. 2020) (“whether the district court finally resolved one or more distinct claims for relief—plainly implicate our jurisdiction”). Claims are not distinct under Rule 54(b) if they can be decided independently of each other. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S. Ct. 895, 100 L.Ed. 1297 (1956)).

Courts analyze two factors to determine whether a claim is distinct and separable: “(1) the factual overlap (or lack thereof) between the claims disposed of and the remaining claims, and (2) whether the claims disposed of and the remaining claims seek separate relief.” Okla. Turnpike, 259 F.3d at 1242 (citation omitted).

Just Reason

Second, the Court must consider the balance of equities to determine whether there is no just reason to delay appellate review. Fireman's Fund Ins. Co. v. Steele St. Ltd. II, No. 17-CV-01005-PAB-SKC, 2019 WL 3778304, at *2 (D. Colo. Aug. 12, 2019) (finding that the movant “has failed to show that the balance of equities favors certification”). This includes the federal policy against piecemeal appeals. Stockman's Water Co., LLC v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005); Rockhill Ins. Co. v. CFI-global Fisheries Mgmt., No. 16-CV-02760-RM, 2021 WL 253458, at *2 (D. Colo. Jan. 26, 2021) (finding just reasons to delay).

This equitable inquiry is subject to the sound discretion of the district court which “must take into account judicial administrative interests as well as the equities involved.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980).

The requirements of Rule 54(b) have not been met if no reasoning is provided by the court. Stockman's Water, 425 F.3d at 1266.

The Tenth Circuit has cautioned that “Rule 54(b) entries are not to be made routinely.” Okla. Turnpike, 259 F.3d at 1242; Gas-A-Car, Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1105 (10th Cir.1973) (noting a Rule 54(b) judgment is appropriate “only ‘in the infrequent harsh case'” (citation omitted)).

Stay Pending Appeal

If a Rule 54(b) certification is entered, a stay of the litigation over the remaining claims pending appeal often is granted in conjunction. See Ebonie S. ex rel. Mary S. v. Pueblo Sch. Dist. 60, No. 09-CV-00858-WJM-MEH, 2011 WL 1882829, at *4 (D. Colo. May 17, 2011) (“Since the Court is granting Plaintiff's motion for Rule 54(b) certification, the Court finds that it is in the interest of justice to stay all trial court proceedings pending a decision by the Court of Appeals”); see also Jordan v. Pugh, 425 F.3d 820, 824 (10th Cir. 2005) (noting the district court had stayed the remaining claims pending appeal). For a stay pending appeal, courts traditionally consider four factors: (1) whether the stay applicant has made a strong showing that it is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies. Hilton v. Braunskill, 481 U.S. 770, 776, 107 S. Ct. 2113, 95 L.Ed.2d 724 (1987) (noting Fed. R. Civ. P. 62(c) and Fed. R. App. P. 8(a) consider generally the same factors).

The appellate attorneys at Thomas P. Howard, LLC can help you identify and present the issues on appeal so as to maximize your chances of reversing a bad result or affirming a good one.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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