Opinion
No. CV-10-0070-PHX-FJM.
April 4, 2011
ORDER
The court has before it Rory Buske, Albert Slucher, and Arthur Arbuckle's ("the individual defendants") motion for Rule 54(b) entry of judgment (doc. 88). Plaintiff did not respond.
On December 6, 2010, we entered an order dismissing with prejudice Count II of the Amended Complaint, plaintiff's fraud claim (doc. 69). Count II specifically named the individual defendants. Count I is for breach of contract and is asserted only against Six400. See doc. 53. The individual defendants now seek entry of judgment on count II so that they do not have to wait until the end of trial against Six400 for a final judgment. Moreover, the individual defendants argue that count II is distinct and separate from count I and that there is no just reason for delay.
Although plaintiff failed to respond, we still consider whether entry of final judgment is appropriate under Rule 54(b), Fed.R.Civ.P. Rule 54(b) provides that when more than one claim for relief is presented in an action, or when multiple parties are involved, the district court may enter final judgment as to one or more but fewer than all of the claims or parties "only if the court expressly determines that there is no just reason for delay." "Judgments under Rule 54(b) must be reserved for the unusual case in which the costs and risks of multiplying the number of proceedings and of overcrowding the appellate docket are outbalanced by the pressing needs of the litigants for an early and separate judgment as to some claims or parties." Frank Briscoe Co. v. Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir. 1985); see also Gausvik v. Perez, 392 F.3d 1006, 1009, n. 2 (9th Cir. 2004). "A similarity of legal or factual issues will weigh heavily against entry of judgment under the rule, and in such cases a Rule 54(b) order will be proper only where necessary to avoid a harsh and unjust result." Frank Briscoe, 776 F.2d at 1416.
We first note that a dismissal with prejudice for failure to state a claim is a final judgment on the merits. See Stewart v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir. 2002). We therefore must determine whether there is any "just reason for delay." The individual defendants claim that there is no relationship between the adjudicated and unadjudicated claims to justify delay. We disagree. The factual underpinnings of the breach of contract claim and the fraud claim are essentially the same. Defendants even argued this in their motion to dismiss count II (doc. 58). Moreover, the individual defendants are members of Six400 and trial is scheduled to occur in about five months. Given that this is a routine case and the factual basis for both claims is substantially the same, entry of final judgment could result in piecemeal appeals. See Wood v. GCC Bend, LLC, 422 F.3d 873, 879-80 (9th Cir. 2005). Any hardship to the individual defendants caused by their having to wait is outweighed by the burden of piecemeal appeals and motions for attorneys' fees. We, therefore, exercise our discretion and deny the motion for entry of judgment under Rule 54(b). See Wood, 422 F.3d at 879; Blair v. Shanahan, 38 F.3d 1514, 1522 (9th Cir. 1994).
Accordingly, it is ORDERED DENYING the individual defendants' motion for Rule 54(b) entry of judgment (doc. 88).
DATED this 1st day of April, 2011.