Darr v. Muratora

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1154

STEPHEN DARR, TRUSTEE OF COLUMBUS MORTGAGE AND
LOAN CORPORATION OF RHODE ISLAND, INC.,

Plaintiff, Appellee,

v.

JOSEPH R. MURATORE, SR., ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ronald R. Lagueux, U.S. District Judge]

Before

Cyr and Stahl, Circuit Judges,

and Fuste,* District Judge.

Paul J. Bogosian, Jr. with whom Hodosh, Spinella & Angelone were

on brief for appellants.
Joseph Avanzato with whom John F. Bomster and Adler Pollock &

Sheehan Incorporated were on brief for appellee.

November 1, 1993

*Of the District of Puerto Rico, sitting by designation.

FUSTE, District Judge. The Trustee for a bankrupt
FUSTE, District Judge.

mortgage lending institution brought an action against the former

chairman and chief executive officer of the company, his wife,

who was also an officer and director of the bankrupt lender, and

three separate real estate and development corporations

controlled by the couple. The Trustee's action sought to recover

over two million dollars allegedly owed to the bankrupt lending

institution by defendants. The Trustee contends that defendants

first, improperly created the debt, second, fashioned a favorable

calculation of the amount due, and third, incorrectly declared

the loans repaid through a questionable real estate conveyance.

The Trustee claims that defendants violated their fiduciary duty

to the institution and to the lender's numerous debenture

holders.

Defendants argue that no fiduciary duty was

transgressed, and counter that the Trustee committed waste and

failed to mitigate damages to the bankrupt estate by allowing

foreclosure on the properties which allegedly were conveyed in

order to satisfy the debt. They also take issue with the method

of debt calculation utilized by the district court. In addition,

defendants contend that they are entitled to a significant

reduction of any outstanding debt because of the equity in, and

rental income from, the conveyed real estate, and to a further

reduction of the debt because of the Trustee's alleged failure to

prevent the foreclosures of the properties. Finally, defendants

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argue that they should receive a setoff of any debt owed to

plaintiff as a result of various unrelated expenses allegedly

advanced by defendants to the plaintiff.

In the instant appeal, defendants challenge two

decisions of the district court: A grant of partial summary

judgment with respect to the total remaining debt owed by

defendants, and the court's certification of final judgment. We

now affirm the district court's partial summary judgment and hold
affirm

that final judgment certification was justified. Defendants'

claims of payment through property transfer, waste, failure to

mitigate, setoff, and miscalculation of debt are unavailing as a

matter of law.

I.

Background

From August 1961 to December 1991, Defendant-Appellant

Joseph R. Muratore, Sr. ("Mr. Muratore") owned and controlled a

mortgage lending institution, Columbus Mortgage & Loan

Corporation of Rhode Island, Inc., as well as its wholly-owned

real estate development corporation subsidiary, Columbus

Development Corporation. The nature of the business of Columbus

Mortgage was to serve as a mortgage lending firm specializing in

residential real estate loans secured by first and second

mortgages on real estate. At some point, however, Columbus

Mortgage entered into the business of making unsecured loans in

its real estate dealings, financing them in large part through

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the sale of debentures.1 Columbus Mortgage eventually took its

business a step further and sold a second generation of

debentures to refinance the first generation of maturing

obligations. As of December 31, 1989, Columbus Mortgage had

$4,400,139 in outstanding debentures. It is undisputed that Mr.

Muratore owed a fiduciary duty to the debenture holders, as well

as to Columbus Mortgage. In February 1991, Columbus Mortgage

declared bankruptcy, acknowledging its inability to repay its

debts in full, including its debentures.

Mr. Muratore and his wife, Defendant-Appellant Rose E.

Muratore ("Mrs. Muratore"), controlled other Rhode Island

corporations, officially unrelated to Columbus Mortgage, that,

inter alia, were in the business of selling and developing real

estate: Defendants-Appellants Muratore Agency, Inc. ("Muratore

Agency"), Muratore Realty Corp. ("Muratore Realty"), and Shawomet

Holding Associates ("Shawomet") (collectively referred to as the

"Separate Muratore Companies"). We refer, collectively, to all

Muratore persons and Muratore corporations as the "Muratore

Defendants".

There is no doubt that Columbus Mortgage provided

several unsecured loans to the Separate Muratore Companies,

drawing funds from the pool of money accumulated by the selling

of debentures to citizens of Rhode Island. These loans were by

1"Debentures are unsecured debt, as opposed to bonds, which
are secured by the assets of the issuing company." In re Worlds

of Wonder Sec. Litigation, 814 F.Supp. 850, 854 n.2 (N.D.Cal.

1993). See also SEC v. Howatt, 525 F.2d 226, 229 (1st Cir.

1975).

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no means insignificant. In fact, loans to the Separate Muratore

Companies, most or all of which were unsecured, totaled

$2,044,313 as of June 30, 1989, more than half of Columbus

Mortgage's total assets of $3,973,791 at that time. In addition,

the record strongly suggests that Columbus Mortgage's funds were

used to pay miscellaneous personal debts of Mr. Muratore. The

record contains no proof of repayment from Mr. Muratore to

Columbus Mortgage. The bottom line is that the Muratore

Defendants claim that their total indebtedness was approximately

$900,000 in December 1990, and $1,200,000 in 1992. Plaintiff-

Appellee Stephen Darr, Chapter 11 Bankruptcy Trustee of Columbus

Mortgage ("Trustee"), argues that the defendant's obligation was

over $2,000,000.

The Muratore Companies paid off some portion of the

debt in cash. However, the payments were applied to principal

rather than to accumulated interest. The Muratore Defendants

claim that their remaining debt to Columbus Mortgage was

discharged in full on or about December 15, 1990, when two pieces

of real estate of disputed equity value were conveyed from the

Muratore Defendants to Columbus Mortgage.2 In an affidavit,

Mr. Muratore, an experienced appraiser in his own right, affirmed

under oath that at the time of the conveyance he believed that

the fair market value of the properties was $2,000,000, and that

approximately $800,000 were still owed on the properties'

2The two properties conveyed by the Muratore Defendants to
Columbus Mortgage are located at 1845 Post Road, Warwick, Rhode
Island, and 275-277 Atwells Avenue, Providence, Rhode Island.

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mortgages. Thus, according to Mr. Muratore, the equity value of

the properties was approximately $1,200,000. In the affidavit,

Mr. Muratore also referred to an independent aggregate appraisal

of the properties, before encumbrances, of $1,660,000, meaning

that as of December 15, 1990 the equity in the properties was

approximately $860,000. Scanning the record, we only find an

independent appraisal of the Post Road Property, valued at

$856,000 as of December 19, 1992. The Trustee challenges the

Muratore Defendants' valuation of the property, contending that

given the unpaid portion of the mortgages on the two properties,

their aggregate equity value was less than $100,000.

The Muratore Defendants claim that the Trustee

committed waste by failing to refinance the properties' mortgages

and allowing foreclosure, causing the estate to lose whatever

equity remained. Columbus Mortgage, through the Trustee, argues

that it permitted foreclosure on the properties pursuant to 11

U.S.C. 362 because they lacked equity value.3 The Muratore

Defendants contend that they deserve a reduction of the amount

owed to Columbus Mortgage equal to the sum of the equity in the

properties, the accrued rental income derived from the properties

before foreclosure, and funds owed to the Separate Muratore

Companies by Columbus Mortgage stemming from transactions

unrelated to the debt at issue in this case.

311 U.S.C. 362 provides for an automatic stay on the
property of an estate which is undergoing voluntary or
involuntary bankruptcy. However, under 362(d)(2)(A), a party
in interest may obtain relief from the stay if the debtor has no
equity in the property.

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Two months after the conveyance of the properties, on

February 15, 1991, Columbus Mortgage, under the guidance of

Mr. Muratore, filed a voluntary Chapter 11 bankruptcy petition

with the United States Bankruptcy Court for the District of Rhode

Island. 11 U.S.C. 1121. At first, Columbus Mortgage operated

as a debtor in possession; however, the creditors' committee

brought an adversary proceeding in the bankruptcy court for the

purpose of collecting money damages from the Muratore Defendants.

In early April 1992, the adversary proceeding was withdrawn to

the United States District Court for the District of Rhode

Island. Soon thereafter, Stephen Darr was appointed Columbus

Mortgage's Bankruptcy Trustee. The Trustee, substituted for the

creditors' committee, continued a six-count action to recover

damages allegedly sustained by the estate and supposedly caused

by the Muratore Defendants.4

On October 14, 1992, the Trustee filed a Fed. R. Civ.

P. 56 motion for partial summary judgment and for entry of final

judgment on Count III of the first amended complaint alleging a

debt due and owing. Fed. R. Civ. P. 54(b). On January 12, 1993,

the district court granted the Trustee's motion and entered final

judgment on Count III against the Muratore Defendants in the

amount of $2,146,034.24. The district court concluded that the

Muratore Defendants were in fact one entity, one corpus, and

4The Trustee's six-count action includes the following
allegations: Count I, Breach of Fiduciary Duty; Count II,
Conversion; Count III, Debt Due and Owing; Count IV, Breach of
Contract, and Count V, a second Breach of Contract.

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ordered final judgment on Count III because there was "no just

reason for delay." The district judge's primary rationale for

Rule 54(b) certification was that the Muratore Defendants' assets

available to settle the claim were barely sufficient to pay the

debt and that relief should be granted to the debenture holders

as soon as possible. The court noted that entry of judgment on

Count III would probably cause the other counts to become moot

because of the limited resources of the Muratore Defendants.

II.

Summary Judgment

In order to review the district court's certification

of summary judgment on Count III of the adversary proceeding

against Mr. Muratore, we must decide whether the district court's

ruling fulfilled the requirements for summary judgment and Rule

54(b) certification.5

A. Standard for Review

Our review of summary judgment decisions is plenary.

Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary

judgment is appropriate "if the pleadings, depositions, answers

5We do not disturb the district court's determination that
the various actorswho constitute theMuratore Defendants arealter-
egos of one another. That finding by the district court has not
been seriously challenged on appeal and rests on sound legal
principles. See Oman Int'l Fin. Ltd. v. Hoiyong Gems Corp., 616

F. Supp. 351, 363-66 (D.R.I. 1985) (discussing law of corporate
collectivity) (affirmatively cited in United Elec., Radio and

Mach. Workers of America v. 163 Pleasant Street Corp., 960 F.2d

1080, 1096 (1st Cir. 1992)); cf. Vucci v. Myers Bros. Parking

Sys., 494 A.2d 530, 535-36 (R.I. 1985). Thus, we will discuss

the Columbus Mortgage debt as an obligation of the aggregate of
defendants without segregating loans among the particular
Muratore entities.

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to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." Fed. R. Civ. P. 56(c). In applying this

standard to the instant case, we view the record in the light

most favorable to the nonmovants, the Muratore Defendants. Bank

One Texas, N.A. v. A.J. Warehouse, Inc., 968 F.2d 94, 97 (1st

Cir. 1992). A nonmovant, however, bears the burden of placing at

least a single material fact into dispute after a moving party

offers evidence of the absence of a genuine issue. See Jaroma v.

Massey, 873 F.2d 17, 20 (1st Cir. 1989) (per curiam); White v.

Hearst Corp., 669 F.2d 14, 17 (1st Cir. 1982). "[T]here is no

issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A

nonmoving party has a duty to oppose a cogent summary judgment

motion. Id.

B. Discussion

Defendants assert that there exist genuine issues of

material fact regarding the debt owed to Columbus Mortgage which

preclude a grant of summary judgment. In order to address these

allegations, we must examine whether the real estate conveyance

was a valid debt payment, whether the defendants were entitled to

any reductions of the debt, and whether it was correct for the

defendants to apply payments to the principal rather than the

interest component of the debt.

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1. Were Real Estate Conveyances Debt Payments?

The record clearly demonstrates that the Muratore

Defendants owe Columbus Mortgage a significant sum of money.

Defendants admit to a certain amount of debt to Columbus

Mortgage, but argue that prior to filing for Chapter 11

bankruptcy, two valuable properties were conveyed from the

Separate Muratore Companies to Columbus Mortgage in partial

satisfaction of the admitted debt.

Regardless of the fiduciary propriety of the real-

estate- for-debt transaction,6 Mr. Muratore admitted before the

district court that the obligation created by his arrangement of

Columbus Mortgage loans to the Separate Muratore Companies was a

money debt. There was no agreement that the debt could be repaid

through a transfer of properties chosen by the debtor. Nor was

there evidence of custom from which such an agreement could be

implied. Since loans are to be normally repaid with money and

not with houses or any other less liquid type of asset, even when

viewing the record in the light most hospitable to the Muratore

Defendants we find untenable the argument that the real-estate

6This court finds questionable that the Separate Muratore
Companies attempted to repay a seven-digit debt through a
property transfer at the direction of Mr. Muratore when, two
months later, the creditor, Columbus Mortgage, voluntarily filed
a Chapter 11 bankruptcy petition also by the hand of Mr.
Muratore. The facts undisputedly show that Mr. Muratore was
effectively in control of both the creditor and debtor
institutions involved in these transactions. It is evident that
a large cash debt was supposedly satisfied at a time and under
circumstances which greatly benefitted the Muratore Defendants
and harmed the soon-to-be declared bankrupt company controlled by
Mr. Muratore, working to the detriment of the unsecured creditors
of that company.

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transfer satisfied the debt. We agree with the district court

that the debt and the real estate transaction have separate

identities. No genuine factual dispute revolves around the issue

of loan satisfaction by the real estate conveyance. Without

prejudice to the bankruptcy court's final assessment of any claim

by the Muratore Defendants arising from the real estate transfer,

the money debt remains and the district court properly decided to

enforce the payment of the same. We now turn to a determination

of the extent of the debt.

2. Waste, Failure to Mitigate, and Setoff

The district court held as a matter of law that what

the Muratore Defendants have defined as waste and failure to

mitigate are unavailing theories as they pertain to the motion

for summary judgment on Count III. We agree. Both the waste and

failure to mitigate theories operate on the presumption that the

real-estate conveyance was a payment toward the Muratore

Defendants' debt. The district court found that the real-estate

conveyance cannot rightly be deemed the equivalent of a money

payment on the Muratore Defendants' debt and, therefore, any

credit or complaint relating to the transferred properties is

entirely separate from the debt owed by defendant, and may be

brought up before the bankruptcy court. The $18,000 in rental

income that the bankrupt estate supposedly received due to its

possession of the properties is no different.

The question of setoff is different than those of

waste and failure to mitigate, in that defendants' theory of

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setoff involves debts not dependant on the real property

conveyance. The Muratore Defendants allege a right to a setoff

of $418,046.25 under 11 U.S.C. 553,7 citing evidence of

indebtedness carried on the ledger cards of Columbus for wages

paid by the Muratore Defendants to employees of Columbus, and for

rental obligations due from Columbus.

Section 553 does not create new substantive law, but

incorporates in bankruptcy the common law right of setoff, with a

few additional restrictions. U.S. ex rel. I.R.S. v. Norton, 717

F.2d 767, 772 (3d Cir. 1983). The right of setoff allows parties

that owe mutual debts to each other to assert the amounts owed,

subtract one from the other, and pay only the balance. In re

Bevill, Bresler & Schulman Asset Mgmt. Corp., 896 F.2d 54, 57 (3d

Cir. 1990). However, allowing setoff undermines a basic premise

of bankruptcy law, equality among creditors, by "permit[ting] a

creditor to obtain full satisfaction of a claim by extinguishing

an equal amount of the creditor's obligation to the debtor . . .

in effect, the creditor receives a 'preference'." Id. (quoting

In re Braniff Airways, Inc., 42 B.R. 443, 448 (Bankr. N.D. Tex.

1984)). As a result, setoff in the context of a bankruptcy is not

automatic. Under section 553, debts cannot be setoff unless they

are mutual. Mutuality requires that the debts "be in the same

7In pertinent part, 11 U.S.C. 553 provides: "[T]his title
does not affect any right of a creditor to offset a mutual debt
owing by such creditor to the debtor that arose before the
commencement of the case under this title against a claim of such
creditor against the debtor that arose before the commencement of
the case." 11 U.S.C. 553(a) (1993).

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right and between the same parties, standing in the same

capacity." 4 Collier on Bankruptcy 553.04 (15th ed. 1992).

Where the liability of the party seeking the setoff arises from

breach of a fiduciary duty, mutuality of debts does not exist and

therefore no setoff is available. Id. See also In re Drexel

Burnham Lambert Group, Inc., 113 B.R. 830, 847-48 (Bankr.

S.D.N.Y. 1990); In re Esgro, Inc., 645 F.2d 794, 797 (9th Cir.

1981) (discussing precursor to section 553); Allegaert v. Perot,

466 F.Supp. 516, 518 (S.D.N.Y. 1978).

If the district court correctly found that Mr. Muratore

breached his fiduciary duty to Columbus Mortgage by causing the

unsecured loans to the Muratore Defendants to be made, then the

debts of the two parties are not mutual and no setoff is allowed

as a matter of law. The district court determined that the

Muratore Defendants violated their fiduciary responsibilities and

assisted in the bankruptcy of Columbus Mortgage by taking actions

to their benefit and against the interests of the debenture

holders. The Muratore Defendants argue that the loan

transactions carried on between Columbus Mortgage, on the one

side, and the Separate Muratore Companies and the Muratores, on

the other, were honest, arm's-length business dealings.

Defendants cite their accounting documentation as proof of the

legitimacy of the loans and terms at issue. After reviewing the

record, we cannot find error in the district court's

determination that the Muratore Defendants seriously breached

their fiduciary obligations. This breach of fiduciary duty

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created a lack of mutuality between the unsecured loans which

were made to the Muratore Defendants by Columbus Mortgage and any

money advanced to Columbus Mortgage by the Muratore Defendants.

As a result, there is no genuine issue of material fact regarding

the propriety of any setoff of the debt owed by the Muratore

Defendants.

3. Applying Cash Payments to Interest

Defendants next argue that summary judgment was

improper because of a dispute about the effect of partial money

payments on their debt obligations. Defendants claim that the

amount owed is lower than the trial court found because the

partial payments were to be used to reduce the principal (without

capitalizing unpaid interest) rather than first paying

accumulated interest.8 The district court concluded that

repayment should have been on an interest-first basis and found

that the Separate Muratore Companies owed substantially more than

previously suggested by the Columbus Mortgage account ledgers.

The Muratore Defendants argue that the district court did not

have sufficient evidence to decide that the repayment method

should have been on an interest-first basis.

It is undisputed that the record contains no express

agreement detailing the method for repaying the loans. Sample

promissory notes used by Columbus Mortgage suggest that the

standard practice for Columbus Mortgage was payment of interest

8By allowing the payment of principal first, the Muratore
Defendants were able to save over $600,000 in interest on their
loans.

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first, with the remainder of any given payment going toward

decreasing the principal. Defendants did not place into the

record any promissory notes allowing payment of principal first,

then interest. Defendants rely primarily on unsubstantiated

statements and assertions that question the evidence submitted by

the Trustee, and fail to present hard evidence to cast doubt on

the Trustees' or the district court's calculations of the

outstanding obligation. Defendants assert that such calculations

were done incorrectly and were based on incorrect assumptions,

but provide no evidenced alternatives to support these

assertions. In short, Defendants offer no "significant probative

evidence" that creates a genuine dispute about the terms of

repayment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249

(1986).

We note further that the dispute over the terms of

repayment ultimately presents not a factual question for a jury

but a legal question for the court. While Rhode Island law is

unclear on the subject, the normal rule throughout the nation is

that, absent an express agreement to the contrary, there is a

presumption that loan payments are made to interest first and

then principal.9 See In re Department of Energy Stripper Well

Exemption Litigation, 944 F.2d 914, 916 (Temp. Emer. Ct. App.

9Some courts have referred to this principle as the "'United
States Rule' on partial payments." Shutts v. Phillips Petroleum

Co., 567 P.2d 1292, 1321 (Kan. 1977), cert. denied., 434 U.S.

1068 (1978). The rule has ancient roots; it was first
acknowledged by the Supreme Court over a century and a half ago.
See Story v. Livingston, 38 U.S. 359, 371 (1839).

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1991); Bonjorno v. Kaiser Aluminum & Chemical Corp., 865 F.2d

566, 576 (3d Cir. 1989), aff'd in part and rev'd in part on other

grounds, 494 U.S. 827 (1990); Devex Corp. v. General Motors

Corp., 749 F.2d 1020, 1025 n.6 (3d Cir. 1984), cert. denied, 474

U.S. 819 (1985); Nat G. Harrison Overseas Corp v. American Barge

Sun Coaster, 475 F.2d 504, 507 (5th Cir. 1973); Whiteside v.

Washington Loan and Trust Co., 95 F.2d 83, 87 (D.C. Cir. 1937);

Torosian v. National Capital Bank, 411 F. Supp. 167, 173 (D.D.C.

1976); Shutts v. Phillips Petroleum Co., 567 P.2d 1292, 1321

(Kan. 1977), cert. denied, 434 U.S. 1068 (1978); Landess v.

State, 335 P.2d 1077 (Okla. 1958); see also 45 Am. Jur. 2d,

Interest and Usury, 99, pp. 88-89; 47 C.J.S., Interest, 66,

pp. 72-73.

As the United States Rule contemplates that loan

repayments ordinarily are to be credited first to interest,

absent a contrary agreement, we are not inclined to conjure a

different rule under Rhode Island law. Moreover, sample

promissory notes, testimony, and the national custom of crediting

loan repayments first to interest, all support the district

court's conclusion. Since there was no genuine factual dispute

about the property transfer, the alleged reductions or the manner

of debt calculation, we hold that the district court correctly

calculated the outstanding debt at $2,146,034.24.

III.

Entry of Final Judgment

A. Standard for Review

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A district 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." Fed. R. Civ. P. 54(b). Orders pursuant to Rule 54(b)

are reviewable by the Court of Appeals for abuse of discretion by

the trial court. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,

437 (1956); Ginett v. Computer Task Group, Inc., 962 F.2d 1085,

1092 (2d Cir. 1992). This court, however, has limited the Mackey

holding to cases like the instant one in which a Rule 54(b)

certificate has been granted by the district court. Makuc v.

American Honda Motor Co., 692 F.2d 172, 173 (1st Cir. 1982).

In Spiegel v. Trustees of Tufts College, 843 F.2d 38

(1st Cir. 1988), we held that the district court's certification

of a final judgment pursuant to Rule 54(b) must satisfy certain

criteria. First, the judgment must have the "requisite aspects

of finality." Id. at 43 (citing Morrison-Knudsen Co. v. Archer,

655 F.2d 962, 965 (9th Cir. 1981)). Second, the district court

must have made its decision to certify a final judgment while

viewing all claims and parties in perspective. See id. (citing

Pahlavi v. Palandjian, 744 F.2d 902, 904 n.5 (1st Cir. 1984), and

quoting Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10

(1980)). Third, we examine the trial judge's "assessment of the

equities" regarding any justifiable reasons for delay. Spiegel,

843 F.2d at 43. This process is necessarily case-specific and

requires an assessment of the entire litigation and an analysis

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of factors which suggest reasons to relax the usual prohibition

against piecemeal appellate review.10 "If the district court

has fulfilled its responsibility of enlightening us as to the

basis for certification . . . then we give 'substantial

deference' to the court's exercise of its discretion." Id.

(quoting Pahlavi, 744 F.2d at 904 n.5).

B. Discussion

1. Two-Pronged Threshold Test

The first prong of our inquiry is whether judgment on

Count III, alone, satisfies the requirement of finality. Count

III of the Trustee's first amended complaint simply asserts an

amount of money owed to the bankrupt estate by the Muratore

Defendants. There can be little doubt that entering judgment on

Count III provides the requisite quantum of finality. See

Spiegel, 843 F.2d at 43. If a certain sum of money is deemed to

be owed to a bankrupt estate, a decision that recognizes the debt

and orders payment is a coherent and final disposition. The debt

is either owed or it is not.

10Factors analyzed by other courts in evaluating Rule 54(b)
motions include (1) the relationship between the adjudicated and
non-adjudicated claims, (2) the possibility that the need for
review might be mooted by future developments in the district
court, (3) the possibility that the same issue might have to be
considered again by the reviewing court, (4) the presence or
absence of a claim or counterclaim which might result in a setoff
against the judgment which is to be made final, (5) miscellaneous
considerations such as delay, economic and solvency
considerations, efficiency, frivolity of competing claims, and
expense. Allis-Chalmers Corp. v. Philadelphia Electric Co., 521

F.2d 360, 364 (3d Cir. 1975).

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Second, we verify whether the trial judge considered

the interrelatedness of claims and the overall context of the

case before him. See Spiegel, 843 F.2d at 43 (citing Pahlavi,

744 F.2d at 904 n.5, and quoting Curtiss-Wright Corp., 446 U.S.

at 10). Here, the district court observed that a grant of

partial summary judgment would cause the other counts to become

moot, since the effect of the satisfaction of the Count III

judgment would be to deplete the Muratore Defendants of their

assets. The district court was explicitly referring to a

contextual analysis. The district judge found that the assets of

defendants are not sufficient to satisfy any further money

claims. Thus, we hold that the second Rule 54(b) criterion was

met when the district judge contemplated his action pertaining to

Count III with a view to the other five counts and not in an

abstract or myopic fashion.

2. Equities

Moving to the heart of this analysis, we examine

whether the trial judge abused his discretion in determining that

there was "no just reason for delay," Fed. R. Civ. P. 54(b), in

light of the futility of the defendants' claims regarding

reductions in the amount of the debt and the time-sensitive

position of the Trustee and debenture holders.11

11An additional requirement for a proper certification is
that the district judge must have made an "express direction for
the entry of judgment." Fed. R. Civ. P. 54(b). This requirement
was obviously met by the judge's oral and written directions.

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In the usual case, if there is a possibility of a later

setoff of a money debt, Rule 54(b) certification of the debt

would be improper because of the inefficient and inequitable

result which would occur if one party were allowed to collect

money which may have to be paid back to the other party when the

remaining litigation is completed. Pahlavi, 744 F.2d at 904.

However, that is not the case here. No setoff or reduction of

the Muratore Defendants' debt could be allowed as a matter of

law. The claimed reductions relating to the transferred property

could not be applied to reduce the money debt. The amount

allegedly owed by Columbus Mortgage for wages and rent cannot be

setoff because the fiduciary relationship between the two parties

renders the debts non-mutual. Here then, we do not face a

situation where the Muratore Defendants will pay Columbus

Mortgage only to have Columbus Mortgage return the money when the

remaining claims are decided. Rather, the Muratore Defendants

will have to join the other unsecured creditors and proceed

through the Bankruptcy Court in an attempt to recover any amount

allegedly owed by Columbus Mortgage. The claimed setoffs present

no just reason for delay.

The district court determined that certification was

proper because the Trustee and debenture holders would be harmed

with the postponement of any appeal. The trial court, in

exercising its discretion in the Rule 54(b) context, may take

time and value into consideration in finding delay unreasonable,

particularly in a case of failure to meet basic fiduciary

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responsibilities. Cf. Curtiss-Wright Corp., 446 U.S. 1

(consideration of time-value of money). While there is an

economic preference for all claims in a particular case to move

to the appeal stage together, a demonstration of clear injustice

or hardship resulting from delaying a final judgment on a

particular question may justify certification. Since the

district court in the instant case considered the appropriate

criteria in a reasonable and coherent manner, "we conclude that

[the court] did not abuse its discretion . . . ." Curtiss-Wright

Corp., 446 U.S. at 12; see Spiegel, 843 F.2d 38; see also Pierce

v. Underwood, 487 U.S. 552, 562 (1988). There was "no just

reason for delay." Fed. R. Civ. P. 54(b).

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IV.

Conclusion

We hold that there was no genuine dispute of material

fact concerning the district court's calculation of the debt owed

by the Muratore Defendants to Columbus Mortgage and its Trustee

in the amount of $2,146,034.24. Fed. R. Civ. P. 56(c). The

attempt to satisfy the debt through a transfer of real estate was

unavailing because there is no evidence of an arrangement between

the parties whereby real estate conveyances were to be considered

payments on the outstanding debt. No reduction of the debt by

funds related to the properties can be granted, because the

property itself was not a repayment for the loans made to the

Muratore Defendants. Because defendants created the loans in

violation of the fiduciary duty owed to the plaintiff, no setoff

for other alleged debts owed by plaintiff to defendants is

available. Furthermore, the cash payments on the debt were

incorrectly applied to the principal rather than the interest,

and therefore the sum calculated by the district court was

correct. We have examined the record in the light most favorable

to defendants, but we are unwilling to go further and take the

leaps of faith suggested by the Muratore Defendants. Finally, we

hold that entry of final judgment on Count III pursuant to Rule

54(b) was well within the sound discretion of the district court.

Fed. R. Civ. P. 54(b). We, therefore, affirm the district
affirm

court's summary judgment on Count III.

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