Opinion
NA 99-63-C B/S.
January 23, 2001.
ORDER DENYING DEFENDANTS CLEVELAND'S AND CESO'S MOTIONS FOR CERTIFICATION
Plaintiffs Terry L. Heath and Martha J. Heath brought suit against Wal-Mart Stores, Inc. ("Wal-Mart"), C.E.S.O., Inc. ("CESO"), and Cleveland Construction, Inc. ("Cleveland") to recover damages suffered during the flooding of their property. They alleged that Defendants caused a nuisance to upper riparian landowners when they built a Wal-Mart store in Dearborn County, Indiana. On September 26, 2000, this Court entered orders granting summary judgment to Defendants CESO and Cleveland and denying the Motion for Summary Judgment filed by Defendant Wal-Mart. Heath v. Wal-Mart Stores, Inc., 113 F. Supp.2d 1294 (S.D. Ind. 2000). On November 13, 2000, Defendant Cleveland filed a Motion for Certification of Order Granting Summary Judgment. Defendant CESO filed a like motion on November 17, 2000. For the reasons set forth below, Defendants' motions are DENIED.
Analysis
Federal Rule of Civil Procedure 54(b) states that, in cases in which "multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the . . . parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Fed.R.Civ.P. 54(b). Directing the entry of final judgment for some of the parties is commonly referred to as "certification." See, e.g., Columbia Broad. Sys., Inc. v. Amana Refrigeration, Inc., 271 F.2d 257, 258 (7th Cir. 1959). Without certification from the district court, the order granting summary judgment to CESO and Cleveland is not final or appealable. Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). Seeking final resolution of the Heaths' claims against them, Defendants CESO and Cleveland ask the Court for an order of certification.
Rule 54(b) does not require routine granting of certification. Curtiss-Wright, 446 U.S. at 10. Rather the issue is left to the sound discretion of the district court. Id. The court's discretion is most clearly guided by the rule's requirement that the judge find "no just reason for delay," Fed.R.Civ.P. 54(b). The Seventh Circuit sets forth a bright-line rule for determining whether delay is permissible. Absent a case of extreme hardship, "as a general rule it is an abuse of discretion for a district judge to grant a motion for a Rule 54(b) order when the motion is filed more than thirty days after the entry of the adjudication to which it relates." Schaefer v. First Nat'l Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972). Over forty-five days passed between the Court's entry on September 26, 2000 and the filing of the earliest motion for certification on November 13, 2000 by Defendant Cleveland. Defendants have presented no facts or arguments suggesting that they would suffer extreme hardship from the denial of certification.
Some litigants before other courts have argued that the 30-day rule is no longer good law in light of more recent cases. See, e.g., United States v. Smith, 186 F.R.D. 505, 506 (N.D. Ind. 1999) (United States argued against continued vitality of time limit for certification motions). This argument is based on Curtiss-Wright and Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944 (7th Cir. 1980). In Curtiss-Wright, 446 U.S. at 10-11, the Supreme Court proclaimed its reluctance to establish narrow guidelines for district courts to follow when deciding motions under Rule 54(b). Indeed, numerous factors are appropriate considerations for the district court. See Bank of Lincolnwood, 622 F.2d at 949 (citing list including economic and solvency problems, possibility that need for appeal may be mooted by developments in trial court, frivolity of competing claims, and more as appropriate considerations). The Seventh Circuit also noted that there is no set procedure for obtaining a Rule 54(b) certification. Id. at 948 n. 3. The argument that the 30-day rule has died an unremarked death has merit.
We are left to discuss the arguments of other litigants in other courts because the parties before the Court failed to debate this issue. In fact, neither party mentioned the 30-day rule, although the Heaths did cite to Schaefer, the lead case on the rule, for another proposition. The attention of Defendants' counsel is called to Rule 3.3 of the Rules of Professional Conduct, the governing code of conduct of attorneys practicing before this Court, as established by Local Rule 83.5(f). Rule 3.3 states that "[a] lawyer shall not knowingly . . . fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." Having no reason to be suspicious of anything other than counsels' diligence, the Court assumes that this omission was made unknowingly.
However, the Court remains convinced that denial of certification is the proper ruling here. First, as the Northern District of Indiana held in Smith, 186 F.R.D. at 506, while the Curtiss-Wright and Bank of Lincolnwood courts found it proper to examine numerous factors and suggested that the district court's discretion should not be tempered with hard-and-fast rules, in both of those cases, the Rule 54(b) request had been timely. Second, the general standard against which requests for certification are judged warrants denial of Defendants' motions. Whether delay is permissible is normally "determined in light of the traditional, deeply-rooted and wisely sanctioned principle against piecemeal appeals." Columbia Broadcasting, 271 F.2d at 258. In the absence of evidence that "hardship or unfairness" would result from delaying appeal until the entire case has reached the appellate stage of proceedings, judicial resources are best maximized by denying certification. Id. at 259. Not only have Defendants CESO and Cleveland failed to argue that they will suffer "extreme hardship" in order to bypass the 30-day rule, but also they have neglected to point to any unfairness likely to accrue to them should an appeal of the judgment in their favor be delayed.
Conclusion
Therefore, Defendants CESO's and Cleveland's Motions for Certification are DENIED.
It is so ORDERED this ___ day of January 2001.