Opinion
99-CV-0868E(Sc)
June 19, 2002
MEMORANDUM and ORDER
Frontier Communications of the West, Inc. ("Frontier") commenced this action against defendant North American Long Distance Corporation, d/b/a Telephun, ("NALD USA") November 1, 1999. NALD USA filed its Answer December 17, 1999 alleging Frontier had improperly named it as the defendant and that North American Long Distance Company, d/b/a Telephun, ("NALD Canada") was the proper defendant. Frontier accordingly filed an Amended Complaint July 24, 2000 adding NALD Canada as a defendant and alleging that it was jointly and severally liable with NALD USA. In a Memorandum and Order dated October 24, 2001 this Court granted Frontier's motion for partial summary judgment against defendant NALD Canada, ordered NALD Canada to pay plaintiff $508,326.84 in fees and interest and denied defendants' cross-motion for summary judgment seeking to dismiss defendant NALD USA, because defendants had failed to establish their separate corporate existences. On December 11, 2001 plaintiff filed a motion pursuant to Rule 54(b) of the Federal Rules of Civil Procedure ("FRCvP") requesting this Court to enter final judgment against defendant NALD Canada. Oral argument was held January 11, 2002 on plaintiff's motion and such motion has thereafter been before this Court for disposition.
"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when 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 claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." FRCvP 54(b).
The Second Circuit Court of Appeals has held that there are three prerequisites to the entry of final judgment under FRCvP 54(b) — viz.,
"(1) multiple claims or multiple parties must be present, (2) at least one claim, or the rights and liabilities of at least one party, must be finally decided within the meaning of 28 U.S.C. § 1291, and (3) the district court must make `an express determination that there is no just reason for delay' and expressly direct the clerk to enter judgment." Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1091 (2d Cir. 1992).
In his October 24, 2001 Memorandum and Order, the undersigned denied defendants' cross-motion for summary judgment because it was "not convinced that [NALD Canada and NALD USA] are in fact two separate and distinct corporate entities ***." Id. at 25. Inasmuch as this Court continues unable to determine the corporate separativeness vel non of NALD Canada and NALD USA, and because there is only a single claim, this Court is unable to direct the Clerk of the Court to enter final judgment. Furthermore, assuming arguendo that there are multiple defendants, this Court would not direct the entry of final judgment because such would result in piecemeal appeals involving the same factual background; the issue of NALD USA's liability vel non to plaintiff would remain sub judice and a subsequent decision thereon would have to be separately appealed. Although the deadlines for the completion of discovery and the filing of dispositive motions set by this Court in its September 25, 2000 Rule 16(b) Order have passed, plaintiff had requested this Court's assistance in obtaining responses to its discovery demands from defendants well before the expiration of the discovery deadline. Accordingly, this Court will extend the scheduling order to allow for the completion of the previously requested discovery.
For example, in their Opposition to Plaintiff's Motion to Enter Final Judgment, defendants state for the first time that "NALD-Canada has been defunct for years" and "is without assets." Id. at 5.
Although plaintiff raised causes of action for breach of contract, quantum meruit/unjust enrichment and action on account stated/open account, they are merely different theories of recovery on a single claim and plaintiff does not contend that they constitute multiple claims.
The deadline for the completion of discovery was August 31, 2001. Plaintiff had informally requested the undersigned's assistance with discovery March 31, 2000 and November 6, 2000 and had filed a formal motion to compel May 29, 2001. Although defendants also filed a motion to compel, they did not do so until September 6, 2001 — i.e., after the deadline for the completion of discovery.
Accordingly, it is hereby ORDERED that plaintiff's motion to enter final judgment is denied, that all discovery previously requested herein shall be accomplished not later than August 31, 2002, that failing any earlier disposition of this case any party may not later than September 23, 2002 serve and file a motion for summary judgment and that, if there shall not have been any such motion served and filed by such date, the parties shall appear in Part III of this Court on the 27th day of September, 2002 at 3:00 p.m. (or as soon thereafter as this matter may be heard) for the purpose of setting a trial date in regard to plaintiff's claim against NALD USA.