SUSAN L. CARNEY, Circuit Judge:
This case arises from a reinsurer's contractual undertakings to compensate a specialized underwriter. The underwriter, Acumen Re Management Corporation ("Acumen"), sued the reinsurer, General Security National Insurance Company ("General Security"), for breach of contract, seeking contingent commissions alleged to be due. The United States District Court for the Southern District of New York (George B. Daniels, Judge) entered partial summary judgment for General Security, ruling that four of Acumen's five breach-of-contract theories were baseless and that, under all five theories, no more than nominal damages were available. The District Court then certified the judgment under Federal Rule of Civil Procedure 54(b), and, notwithstanding the remaining disputed theory, closed the case.
General Security asserts that we lack jurisdiction to entertain Acumen's appeal, arguing that the District Court's certification under Rule 54(b) was improper in that its partial judgment did not address separate "claim[s] for relief." We agree, and conclude that we must dismiss the appeal.
We begin with some details of the dispute. In 1994, Acumen, an underwriter, entered into the "Acumen Re Reinsurance Underwriting Agency Agreement" (the "Underwriting Agreement") with Sorema North America Reinsurance Company ("Sorema"). Pursuant to the Underwriting Agreement, Sorema engaged Acumen to underwrite reinsurance of certain workers' compensation insurance, subject to detailed guidelines. The undertaking concerned "facultative reinsurance," in which Sorema, as a reinsurer, would assume on a policy-by-policy basis certain portions of risks insured as an initial matter by other companies (the "ceding companies").
Acumen's role for Sorema was primarily to underwrite — that is, to identify, investigate, evaluate, and price — risks of a type and range that were well defined by the Underwriting Agreement. For each qualifying risk identified by Acumen and accepted by Sorema, Acumen would produce a "certificate" documenting the risk and related undertakings.
The Underwriting Agreement provided that Acumen would receive, as compensation, an eight percent commission on "net written premium received by [Sorema] on... certificates bound or written under [the] Agreement." The Underwriting Agreement was supplemented at its inception by a "Contingency Commission Addendum" ("Addendum") providing that Acumen would "be allowed a thirty percent (30%) contingent commission on [Sorema's] share of annual net profits, if any ... arising from [certificates] bound or written under the [parties' agreement]," subject to further specified terms. The
Seven years later, in 2001, Sorema was acquired and became General Security. The following year, General Security and Acumen agreed to end their relationship, in the "Agreement Terminating Acumen Re Reinsurance Underwriting Agency Agreement" ("Termination Agreement"). The Termination Agreement called for General Security to make an immediate payment of $1 million to Acumen in 2001, and, in early 2008, to calculate and pay any contingent commissions due under the Addendum for the prior underwriting years — from the start of 1997 through April 30, 2002.
After the termination in 2002 and before the final commission payment became due in 2008, General Security commuted certain of its reinsurance certificates, some of which had been underwritten by Acumen.
In 2008, when the time came for General Security to calculate the contingent commissions owed to Acumen, it concluded that none were due. Rather, it determined that, in the end, the certificates Acumen underwrote generated losses for General Security in excess of $56.7 million.
Acumen disputed that conclusion, maintaining that it was owed contingent commissions by General Security, and, later in 2008, it sued. Acumen's complaint framed the claims in two counts, one for breach of contract and a second for breach of the implied covenant of good faith and fair dealing. As relief, it sought principally compensatory and punitive damages. Not long after Acumen filed an amended complaint, General Security moved for partial summary judgment on the issues of liability and punitive damages, as well as on Acumen's claim for attorney's fees. In an order dated February 25, 2010, the District Court dismissed, as duplicative of its breach of contract claim, Acumen's claim for breach of the implied covenant of good
In that claim, framed in the complaint simply as "COUNT I — Breach of Contract," Acumen alleged that General Security committed "multiple breaches" of the Agreements by: (1) failing to provide Acumen with quarterly financial reports; (2) unilaterally commuting certificates underwritten by Acumen; (3) failing to consult with Acumen before determining the profit (if any) it realized on any of Acumen's certificates; and (4) failing (through poor data management, inter alia) to perform a valid calculation of and to pay Acumen's contingent commissions. It did not specify damages attributable to each individual alleged breach. Nor did it specify a particular quantum of damages for the Count as a whole, instead asserting generally that it should receive the contingent commissions allegedly owed under the Agreements.
After the close of discovery, General Security moved again for summary judgment on liability and damages, and Acumen filed its own motion for summary judgment on liability. The District Court granted partial summary judgment in General Security's favor. Acumen Re Mgmt. Corp. v. Gen. Sec. Nat'l Ins. Co., No. 09 CV 01796(GBD), 2012 WL 3890128 (S.D.N.Y. Sept. 7, 2012). Treating the complaint's Count I as alleging five separate "claims" for breach, the court concluded as a matter of law that Acumen failed to produce evidence sufficient for a trier of fact to conclude that General Security had breached the contract in four of the five ways that Acumen alleged.
Acumen moved for reconsideration or, alternatively, for entry of a partial judgment under Rule 54(b) as to the dismissed "claims." Because the bulk of its case had been dismissed, Acumen explained as follows in support of its request:
Mot. for Recons. or Rule 54(b) Jgmt. at 23.
The District Court denied Acumen's motion for reconsideration, but certified its partial summary judgment order as a "final judgment for appeal" under Rule 54(b) and then, without further explanation, directed the Clerk of Court to close the case. Acumen Re Mgmt. Corp. v. Gen. Sec. Nat'l Ins. Co., No. 09-CV-01796 (GBD), 2012 WL 6053936, at *3 (S.D.N.Y. Dec. 4, 2012). In its order, the court explained its view that the prerequisites of Rule 54(b) were satisfied because the order resolved "four of the five grounds in support of [Acumen's] claims" and "determined liability on all of Acumen's claims for compensatory damages." Id. at *2. Finally, the court concluded that there was no just reason for delay, because "resolving the issues finally decided in the [summary judgment order] will likely avoid a costly, duplicative trial (or the need for any trial at all)." Id. Judgment was entered and the Clerk of Court closed the case, notwithstanding the still-unresolved theory of breach related to poor data quality.
Our jurisdiction over this appeal is "bounded by 28 U.S.C. § 1291, which empowers us to hear only `appeals from ... final decisions' of the federal district courts." United States ex rel. Polansky v. Pfizer, Inc., 762 F.3d 160, 162-63 (2d Cir. 2014) (internal citation omitted). General Security argues that we lack jurisdiction because the order appealed from is not final as to any single "claim." Acumen responds that the District Court appropriately certified its rejection of four of Acumen's five theories of breach under Rule 54(b), thus rendering that ruling a "final judgment" for jurisdictional purposes. Acumen maintains that the theories of breach currently on appeal implicate factual and legal issues that are independent of the unresolved data-quality breach theory, and the different theories are therefore distinct "claims" as required for certification under Rule 54(b).
General Security's challenge to our jurisdiction is well founded. For the reasons described below, we conclude that Acumen's five theories of breach are not separate and distinct but are based on a single aggregate of operative facts and thus form a single claim. Accordingly, the District Court's ruling was not amenable to certification under Rule 54(b), and we lack jurisdiction over this appeal.
The parties do not dispute that the District Court's judgment was partial — that is, that the data-quality issue survived its entry.
In this case, the third requirement for Rule 54(b) certification appears to be satisfied, since the District Court expressly determined that there was "no just reason for delay."
We therefore turn to the task of determining whether the different theories of recovery presented by Acumen are distinct claims for the purposes of Rule 54(b),
Over the years, our Court has articulated several standards to aid in determining whether claims are separate for Rule 54(b) purposes. We have defined a claim as "the aggregate of operative facts which give rise to a right enforceable in the courts." Gottesman v. Gen. Motors Corp., 401 F.2d 510, 512 (2d Cir.1968) (quoting Original Ballet Russe v. Ballet Theatre, 133 F.2d 187, 189 (2d Cir.1943)). In other circumstances, we have explained that for Rule 54(b) purposes whether multiple claims are present turns on whether the issues are "separate and distinct." Hudson River Sloop, 891 F.2d at 418. Only "[w]hen the certified claims are based upon factual and legal questions that are distinct from those questions remaining before the trial court" may the certified claims "be considered separate claims under Rule 54(b)." Id. We examine the relationships among a plaintiff's theories of recovery to determine whether they "lend themselves to review as single units, or whether they are so interrelated and dependent upon each other as to be one indivisible whole." Id.
We have also suggested that the existence of multiple claims turns on "whether the underlying factual bases for recovery state a number of different claims which could have been separately enforced." Rieser v. Baltimore & Ohio R.R. Co., 224 F.2d 198, 199 (2d Cir.1955). Commentators have interpreted this test to mean that "when a claimant presents a number of legal theories, but will be permitted to recover only on one of them," there exists only a single claim for relief. Wright, Miller & Kane, supra, § 2657.
Our past decisions provide guidance in applying these standards. In Gottesman, we held that allegations of malfeasance involving the purchase of different products presented distinct claims. 401 F.2d at 512. There, the plaintiff shareholders of General Motors alleged (in a derivative action) that a defendant had unlawfully dominated and controlled General Motors in the purchase of various products ranging from automotive fabrics to Freon refrigerant. Each asserted cause of action concerned unlawful domination and control
In Hudson River Sloop, this Court similarly concluded that a suit aimed at preventing the United States Navy from stationing ships at Staten Island presented multiple claims. 891 F.2d at 418. The plaintiffs there alleged that the Navy had violated two federal statutes by, among other things, (1) failing adequately to consider the environmental impact of the construction necessary to station the ships, as well as the environmental impact of conventional weapons on board the ships; and (2) failing adequately to disclose or consider the impact of nuclear weapons that might have been on board the ships. The district court granted partial summary judgment on the claims involving nuclear weapons and certified those claims under Rule 54(b), holding that any inquiry into the presence of nuclear weapons on the ships (which the Navy refused to confirm) was barred by the national security doctrine. Id. at 416-17. Our Court upheld the Rule 54(b) certification, emphasizing that none of the claims remaining before the district court involved the deployment of nuclear weapons or classified information. Thus, although "the claims on appeal stem[med] from the same general objection," those claims involved "a unique factual scenario — deployment of nuclear weapons — and raise[d] legal issues wholly distinct from those that remain for trial." Id. at 418. Accordingly, the claims on appeal were "separate and distinct" from those remaining before the district court. Id.
By contrast, Backus Plywood Corp. v. Commercial Decal, Inc., 317 F.2d 339 (2d Cir.1963), held that a plaintiff asserting three theories of recovery — all arising from a defendant's alleged breach of a single oral agreement — did not present multiple claims. Id. at 341. In Backus, the plaintiff presented three "causes of action" against the president of a corporation: breach of an oral agreement; breach of a promise by the president to secure the consent of his corporation's stockholders and directors to the oral agreement; and misrepresentation by the president of his ability to obtain that consent. The district court granted summary judgment on the first two causes of action, and certified the judgment under Rule 54(b). Id. at 340. Our Court held that the plaintiff's three "causes of action" were not distinct claims. Instead, "[a]ll of the facts on which plaintiff relies constitute[d] but a single transaction composed of a closely related series of occurrences," Id. at 341 (quoting Schwartz, 264 F.2d at 196), and "the complaint presented merely three different theories of recovery against [the defendant] for his failure to carry out the alleged agreement," id.
Similarly, in Seaboard Machinery Corp. v. Seaboard Machinery Corp., 267 F.2d 178 (2d Cir.1959), we declined to uphold a district court's Rule 54(b) certification when all the certified "claims" derived from a single contract and involved the same factual underpinnings. Id. at 179. We explained that "[a]ll the counts — and the counterclaim as well — arise out of a single contract.... The plaintiffs claim fraud and breach of warranty in their purchase, and each count sets forth some aspect of this over-all claim." Id. Although the plaintiff set out a separate quantum of damages for each count of the complaint, that was not enough to transform the various
In this case, what remains before the District Court is whether General Security breached the Agreements by using flawed data to determine whether it owed Acumen any contingent commissions. Resolution of that issue is tied up with the merits issues currently on appeal, all of which ultimately bear on the question whether General Security's calculations were correct. For example, whether General Security was entitled to use carry-forward deficits in its calculation (an issue certified for appeal) dovetails with whether it used fundamentally flawed data (the issue that remains below). Similarly, the soundness of General Security's method for calculating contingent commissions — in which General Security included commutation losses — depends in part upon the quality of the data used in calculating those commissions. Contrary to the District Court's view, Acumen's various theories of breach are not discrete and segregable; rather, they are only parts of a closely interwoven whole.
Nor do Acumen's "underlying factual bases for recovery state a number of different claims which could have been separately enforced." Rieser, 224 F.2d at 199. Acumen presented its five theories as a single count (for breach of contract) and offered one measure of damages (contingent commissions due under the Agreements). Acumen alleges five ways in which General Security breached the Agreements, but, combined, those failures are alleged to have caused only a single harm: depriving Acumen of contingent commissions that might have been due under the Addendum. If Acumen wins on any of its theories, it is entitled to the same quantum of damages, and it does not matter whether it succeeds on one theory or five.
Here, Acumen's five theories of breach do not qualify as separate claims under any of the tests enunciated by our Circuit. Acumen's theories merely allege various ways in which General Security breached the Agreements — agreements that are themselves so united and mutually referential as not to admit of separate "claims." Far from being "separate and distinct," Acumen's theories are rather "so interrelated and dependent upon each other as to be one indivisible whole." Hudson River Sloop, 891 F.2d at 418. They arise out of "a single transaction composed of a closely related series of occurrences," Backus, 317 F.2d at 341, and are not likely to be proved by different witnesses and exhibits, see Gottesman, 401 F.2d at 512. Moreover, accepting certification would disserve the "purposes and policies" behind Rule 54(b), namely the desire to "avoid redundant review of multiple appeals based on the same underlying facts and similar issues of law." Hudson River Sloop, 891 F.2d at 418.
For the foregoing reasons, we hold that the District Court's entry of the Rule 54(b)