Opinion
Case No. 2:02-CV-01268 PGC.
June 16, 2004
ORDER DENYING MOTION FOR RULE 54(b) CERTIFICATION
Before the court is a Motion for Certification Pursuant to Rule 54(b) (#97-1). Because the underlying ruling was not final, the motion for certification is DENIED.
I. BACKGROUND
On June 3, 2004, the parties appeared before the court for the final pretrial conference. Among other things, defendant Hilton Hotels ("Hilton") sought to exclude evidence relating to backpay. Relying on the Tenth Circuit's decision in McCue v. State of Kansas, the court concluded that backpay was equitable relief that should be awarded by the judge, not the jury. The court determined to take evidence in support of Mr. Pett's claim for equitable relief only after the jury had determined liability. Since evidence of backpay would not be relevant to Hilton's liability, the court excluded such evidence from trial. In doing so, however, the court recognized that Mr. Pett did not have much time to respond in writing to Hilton's argument and invited Mr. Pett to file a motion to reconsider the court's analysis under McCue.
165 F.3d 784 (10th Cir. 1999).
In addition to this reasoning, which applied to all equitable remedies, the court excluded evidence that Mr. Pett was entitled to backpay because it believed, as a matter of law, that Mr. Pett could prove no theory that would entitle him to backpay. Under Mr. Pett's theory, the improper act that started the statute of limitations running was the notification that he had been officially fired. At summary judgment, Mr. Pett necessarily argued that Hilton did not violate his rights by putting him on call; the contrary argument would have put Mr. Pett's claims outside the applicable statute of limitations. Therefore, the court concluded that Mr. Pett could not establish his claim that he was entitled to backpay and excluded such evidence from trial.
Mr. Pett now moves the court to certify that its ruling that Mr. Pett is not entitled to any back pay is a final and immediately appealable order. Mr. Pett does not seek to certify the court's decision that backpay is equitable relief that should be awarded by the judge after the jury has determined liability, although he does challenge that ruling elsewhere.
See Mem. in Opp. to Def.'s Mot. in Limine (#99-1).
II. ANALYSIS
The court disagrees that it has finally decided this issue and denies the motion. The Tenth Circuit has stated that
certification under Rule 54(b) is only appropriate when a district court adheres strictly to the rule's requirement that a court make two express determinations. First, the district court must determine that the order it is certifying is a final order. Second, the district court must determine that there is no just reason to delay review of the final order until it has conclusively ruled on all claims presented by the parties to the case.
Oklahoma Turnpike Authority v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) (citing Curtiss-Wright Corp. v. General Elect. Co., 446 U.S. 1, 7-8 (1980)).
As to the first prong, the court has not made a final ruling that Mr. Pett is not entitled to backpay; rather, it has postponed the resolution of equitable remedies until after a jury has determined liability. While the court has expressed its skepticism that Mr. Pett would be able to prove any theory under which he is entitled to backpay, once a jury has resolved the question of liability, Mr. Pett will have the opportunity to seek all equitable remedies to which he is entitled. While the court did find that Mr. Pett is not entitled to backpay, the court is willing to reconsider that ruling and declines to certify that finding as a final, appealable order.
As to the second prong, this court must "take into account judicial administrative interests as well as the equities involved," recognizing "the historic federal policy against piecemeal appeals." The court concludes that an appeal of an evidentiary ruling at this juncture would result in piecemeal appeals. Furthermore, where this case has progressed to the very eve of litigation, judicial economy suggests that this court simply litigate the claims before it rather than further prolong litigation by sending the case to the Tenth Circuit one small bite at a time.
Curtiss-Wright, 446 U.S. at 8.
III. CONCLUSION
Accordingly, the motion for certification (#97-1) is DENIED.
SO ORDERED.