USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

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]

___________________

_________________________

Before

Selya, Circuit Judge,

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Bownes, Senior Circuit Judge,

____________________

and Boudin, Circuit Judge.

_____________

_________________________

Gilbert R. Hoy, Jr. for appellants.

___________________
Alvin

S. Nathanson,

with whom

Shannon M.

Fitzpatrick and

___________________

_______________________

Nathanson & Goldberg, PC were on brief, for appellee.

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_________________________

December 19, 1996

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Per Curiam.
Per Curiam.
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This

appeal illustrates once

again that

the

overly generous

intentioned district

and

use of

Fed. R.

Civ. P.

judge can create a

appellate courts alike.

54(b) by

a well-

minefield for litigants

Though the appeal itself amounts to

an exercise in futility, see infra, it should serve as a reminder

___ _____

that haste

when

makes waste.

judges

There are often

too readily

acquiesce

untoward consequences

in the

suggested

entry of

"partial" final judgments.

The

plaintiffs

Peabody,

basic

owned

valuable

Massachusetts.

into receivership,

mortgage

procedural

on

Corporation.

facts

commercial

After

are

real estate

their original

the defendant Cadle Co.

the property

from

undisputed.

the

located

The

in

lender plummeted

(Cadle) acquired the

Federal Deposit

Insurance

Inasmuch as the mortgage note was in arrears, Cadle

foreclosed on the property and took possession of it.

The plaintiffs

agreement

economic

trade

to

(count

relationships (count

practices in

(count 5).

the

forbear

sued, claiming inter alia

_____ ____

forbearance

relief (count 6).

wrongful

2), fraud

violation of

The plaintiffs

supposed

1),

interference

(count 3),

Mass. Gen.

L. ch.

also sought specific

agreement (count

4)

All six counts implicated the

the foreclosure, and Cadle's conduct

breach of an

with

and unfair

93A,

11

performance of

and declaratory

mortgage note,

in respect thereto.

Cadle

denied the plaintiffs' allegations, pointed to the relatively low

price

that

counterclaimed

the

property

had

brought

at

auction,

and

for the deficiency that it thought was due on the

mortgage note.

After discovery had been

granted

partial summary judgment in Cadle's

dispatched counts

count

conducted, the district court

and

thereafter

Although the

1, 2, 3,

Cadle's

certified the

4, and 6

favor.

This ruling

of the complaint,

counterclaims

unaffected.

judgment as

final under

The

leaving

court

Rule 54(b).1

court made a rote recitation that there was no just

reason

that

to delay the entry of judgment, it failed to substantiate

conclusion.

certificate

as

Using

the

a springboard,

district

the

court's

plaintiffs

Rule

54(b)

prosecuted this

appeal.

It is trite, but

invites

mischief.

Because

potential problems

we

true, that piecemeal appellate review

the

have warned,

54(b)

should be

Corp.
_____

v. Fore River Ry. Co., 861

__________________

Spiegel v.
_______

1988);

practice

used sparingly.

time and

See, e.g.,
___ ____

poses

host

again, that

of

Rule

Consolidated Rail
_________________

F.2d 322, 325 (1st Cir. 1988);

Trustees of Tufts Coll., 843 F.2d

________________________

38, 43

Santa Maria v. Owens-Ill., Inc., 808 F.2d

___________
_________________

Cir. 1986).

(1st Cir.

848, 854 (1st

We have also admonished that a district court intent

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1Ordinarily,
under

28 U.S.C.

claims of

merits

judgment is

1291)

one

and leaves nothing

judgment").

(and,

thus, appealable

conclusively determines all

the action.

U.S. 229,

generally is

final

only if it

all parties to

United States, 324

_____________
decision

See generally
___ _________

233 (1945) (stating

which "ends

for the court

the

Catlin v.
______

that a

final

litigation on

to do but

execute the

Rule 54(b) limns an exception to this principle.

provides in relevant part:

the

It

"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

claims or parties . . . upon an express determination

the

that there

is no just reason for delay and upon an express direction for the
entry of [such a] judgment. . . ."

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.

(1st

See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39

___ _________
______________________

Cir. 1991);

Spiegel,
_______

843 F.2d

at 43

&

n.4; Pahlavi
_______

v.

Palandjian, 744 F.2d 902, 905 (1st Cir. 1984).

__________

In

meaningful

should

this

explanation for

the district

its

court

determination

volunteered no

that a

judgment

enter even though a substantial part of the case remained

untried,2 and

The

instance

no good reason for the

claims adjudicated

on

certification is apparent.

summary judgment

appeal are inextricably intertwined

and certified

for

with the claims left pending

in the district court, and the parties to both sets of claims are

precisely the

same.

"[i]t will be a

applied when

rare case where Rule 54(b)

the contestants

contestants below."

that

As we predicted in Spiegel, 843 F.2d at 44,

_______

prediction,

This

on appeal

can appropriately be

remain, simultaneously,

case falls within

not within

the

the generality

long-odds

exception to

of

it.3

____________________

2The district court did note in its certificate that all the
counts

on

which

it

granted

propriety of the foreclosure.

the

summary

judgment

But that tells us

claims that remained likewise involved

foreclosure.

The

discharging the lis

___
gave no

court

also

noted

pendens that the

_______

reason to suspect

involved

the

very little as

the propriety of the

the

desirability

plaintiffs had filed,

that any particular

of

but

urgency attended

this discharge.

3This case offers a testimonial to the wisdom that underlies

the Spiegel doctrine.
_______

After the appeal had been

fully briefed,

the

district court conducted a trial on the remaining claims and

counterclaims.
thereafter

it

Cadle prevailed
moved to

judicata and collateral

across the board.

dismiss the
estoppel.

Immediately

appeal

on grounds

of res

We do not

reach the

issues

Finally,

the

record

reflects

no

overriding equities that might counsel

special

circumstances

or

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

appellate jurisdiction.

was

improvidently

granted, we

lack

See Consolidated Rail, 861 F.2d at 326;

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Spiegel, 843 F.2d at 46.

_______

The appeal is dismissed without prejudice for want of

_______________________________________________________

appellate jurisdiction.
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All parties shall bear their own costs.

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____________________

raised

in the motion to dismiss, but its content illuminates the

Serbonian
relaxed

bog into

which

application of the

appellate courts

can

be plunged

rigorous standards that

associated with Rule 54(b) certifications.

by

ought to be