Opinion
99 Civ. 4548 (AKH).
July 22, 2005
ORDER REGULATING PROCEEDINGS
The parties represented to me, at oral argument on July 27, 2004, that the summary judgment that I granted, dismissing the complaint, resolved all open issues, that the case in the district court could be closed, and that the case was ripe for Enzo Biochem, Inc. to notice an appeal from a final order.
I would not have accepted the motion for summary judgment, nor expended the judicial energy required to master a complex file, except for the representation that it was for a final order and, if granted, would close the case. The motion itself gave no hint that any issue would be left for decision.
In the circumstances, I decline to issue a certificate pursuant to Rule 54(b), Fed.R.Civ.P. The remaining claim, if viable, is intertwined with the issues that I decided. I would not have tried the issues separately (cf. R. 42(b), Fed.R.Civ.P.), and there is no good reason why the Court of Appeals should be faced with piece-meal appeals.
I shall meet with counsel on August 12, 2005, at 9:30 a.m. to discuss further proceedings. Counsel should carefully consider if the parties wish to proceed on any remaining claims or counterclaims, or voluntarily dismiss them. Counsel should be prepared also to discuss the prospect of costs under Rule 11, Fed.R.Civ.P. and 28 U.S.C. § 1927 (Any attorney who so multiplies the proceedings unreasonably and vexatiously may be required by the court to satisfy personally any excess costs, reasonably incurred because of such conduct).
SO ORDERED.