USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
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No. 96-1777
SARGENT D. NICHOLS, INDIVIDUALLY AND AS HE IS TRUSTEE OF
ANDOVER NORTHWAY REALTY TRUST, ET AL.,
Plaintiffs, Appellants,
v.
THE CADLE CO.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
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Before
Selya, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Boudin, Circuit Judge.
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Gilbert R. Hoy, Jr. for appellants.
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Alvin S. Nathanson, with whom Shannon M. Fitzpatrick and
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Nathanson & Goldberg, PC were on brief, for appellee.
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December 19, 1996
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Per Curiam. This appeal illustrates once again that
Per Curiam.
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the overly generous use of Fed. R. Civ. P. 54(b) by a well-
intentioned district judge can create a minefield for litigants
and appellate courts alike. Though the appeal itself amounts to
an exercise in futility, see infra, it should serve as a reminder
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that haste makes waste. There are often untoward consequences
when judges too readily acquiesce in the suggested entry of
"partial" final judgments.
The basic procedural facts are undisputed. The
plaintiffs owned valuable commercial real estate located in
Peabody, Massachusetts. After their original lender plummeted
into receivership, the defendant Cadle Co. (Cadle) acquired the
mortgage on the property from the Federal Deposit Insurance
Corporation. Inasmuch as the mortgage note was in arrears, Cadle
foreclosed on the property and took possession of it.
The plaintiffs sued, claiming inter alia breach of an
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agreement to forbear (count 1), wrongful interference with
economic relationships (count 2), fraud (count 3), and unfair
trade practices in violation of Mass. Gen. L. ch. 93A, 11
(count 5). The plaintiffs also sought specific performance of
the supposed forbearance agreement (count 4) and declaratory
relief (count 6). All six counts implicated the mortgage note,
the foreclosure, and Cadle's conduct in respect thereto. Cadle
denied the plaintiffs' allegations, pointed to the relatively low
price that the property had brought at auction, and
counterclaimed for the deficiency that it thought was due on the
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mortgage note.
After discovery had been conducted, the district court
granted partial summary judgment in Cadle's favor. This ruling
dispatched counts 1, 2, 3, 4, and 6 of the complaint, leaving
count 5 and Cadle's counterclaims unaffected. The court
thereafter certified the judgment as final under Rule 54(b).1
Although the court made a rote recitation that there was no just
reason to delay the entry of judgment, it failed to substantiate
that conclusion. Using the district court's Rule 54(b)
certificate as a springboard, the plaintiffs prosecuted this
appeal.
It is trite, but true, that piecemeal appellate review
invites mischief. Because the practice poses a host of
potential problems we have warned, time and again, that Rule
54(b) should be used sparingly. See, e.g., Consolidated Rail
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Corp. v. Fore River Ry. Co., 861 F.2d 322, 325 (1st Cir. 1988);
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Spiegel v. Trustees of Tufts Coll., 843 F.2d 38, 43 (1st Cir.
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1988); Santa Maria v. Owens-Ill., Inc., 808 F.2d 848, 854 (1st
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Cir. 1986). We have also admonished that a district court intent
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1Ordinarily, a judgment is final (and, thus, appealable
under 28 U.S.C. 1291) only if it conclusively determines all
claims of all parties to the action. See generally Catlin v.
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United States, 324 U.S. 229, 233 (1945) (stating that a final
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decision generally is one which "ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment"). Rule 54(b) limns an exception to this principle. It
provides in relevant part: "When more than one claim for relief
is presented in an action . . . the court may direct the entry of
a final judgment as to one or more but fewer than all of the
claims or parties . . . upon an express determination that there
is no just reason for delay and upon an express direction for the
entry of [such a] judgment. . . ."
3
upon setting the stage for the fragmentation of appellate review
must explain the need for entering an earlier-than-usual judgment
at least in cases where the explanation is not obvious from the
record. See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39
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(1st Cir. 1991); Spiegel, 843 F.2d at 43 & n.4; Pahlavi v.
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Palandjian, 744 F.2d 902, 905 (1st Cir. 1984).
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In this instance the district court volunteered no
meaningful explanation for its determination that a judgment
should enter even though a substantial part of the case remained
untried,2 and no good reason for the certification is apparent.
The claims adjudicated on summary judgment and certified for
appeal are inextricably intertwined with the claims left pending
in the district court, and the parties to both sets of claims are
precisely the same. As we predicted in Spiegel, 843 F.2d at 44,
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"[i]t will be a rare case where Rule 54(b) can appropriately be
applied when the contestants on appeal remain, simultaneously,
contestants below." This case falls within the generality of
that prediction, not within the long-odds exception to it.3
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2The district court did note in its certificate that all the
counts on which it granted summary judgment involved the
propriety of the foreclosure. But that tells us very little as
the claims that remained likewise involved the propriety of the
foreclosure. The court also noted the desirability of
discharging the lis pendens that the plaintiffs had filed, but
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gave no reason to suspect that any particular urgency attended
this discharge.
3This case offers a testimonial to the wisdom that underlies
the Spiegel doctrine. After the appeal had been fully briefed,
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the district court conducted a trial on the remaining claims and
counterclaims. Cadle prevailed across the board. Immediately
thereafter it moved to dismiss the appeal on grounds of res
judicata and collateral estoppel. We do not reach the issues
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Finally, the record reflects no special circumstances or
overriding equities that might counsel in favor of permitting an
immediate appeal from a plainly interlocutory order.
We need go no further. Since the Rule 54(b)
certificate in this case was improvidently granted, we lack
appellate jurisdiction. See Consolidated Rail, 861 F.2d at 326;
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Spiegel, 843 F.2d at 46.
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The appeal is dismissed without prejudice for want of
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appellate jurisdiction. All parties shall bear their own costs.
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raised in the motion to dismiss, but its content illuminates the
Serbonian bog into which appellate courts can be plunged by
relaxed application of the rigorous standards that ought to be
associated with Rule 54(b) certifications.
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