15‐2326
Benjamin Roberts v. Sophien Bennaceur, et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 5th day of August, two thousand sixteen.
PRESENT: CHESTER J. STRAUB,
RICHARD C. WESLEY,
DEBRA A. LIVINGSTON,
Circuit Judges.
______________________
BENJAMIN ROBERTS,
Plaintiff‐Counter‐
Defendant‐Appellee,
v. No. 15‐2326
SOPHIEN BENNACEUR, IMED
BENNACEUR,
Defendants‐Counter‐
Claimants‐Appellants,
TRIPLANET PARTNERS LLC,
Defendant‐Counter‐
Claimant,
MOEZ BENNACEUR,
Defendant.
______________________
Plaintiff‐Counter‐Defendant‐Appellee: BRENDAN J. O’ROURKE (Lorey
Rives Leddy, on the brief), O’Rourke
& Associates, LLC, New Canaan, CT.
Defendants‐Counter‐Claimants‐Appellants: ROGER JUAN MALDONADO
(Nicole Haff, on the brief), Balber
Pickard Maldonado & Van Der Tuin,
PC, New York, NY.
Appeal from the United States District Court for the District of Connecticut
(Meyer, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the judgment of the District Court is
AFFIRMED.
This case arises from a former business relationship between Plaintiff
Benjamin Roberts (“Roberts”) and Defendants Sophien Bennaceur (“Sophien”),
Imed Bennaceur (“Imed”), and TriPlanet Partners LLC (“TriPlanet”), a Delaware
company that is now in bankruptcy (collectively, “Defendants”) . Sophien and
2
Imed are brothers, citizens and residents of Tunisia, and the managing members
of TriPlanet. Roberts worked for TriPlanet as its Managing Director and
serviced TriPlanet’s primary client, the Royal Bank of Scotland (“RBS”), from
August 2010 until he was terminated in June 2012. After his termination, Roberts
brought suit against Defendants in the United States District Court for the
District of Connecticut to recover millions of dollars in allegedly overdue equity
payments and unpaid salary.
Following an evidentiary hearing, the District Court (Underhill, J.) used a
Connecticut procedural device to issue Roberts a prejudgment remedy (“PJR”) of
$8,858,949. See Conn. Gen. Stat. §§ 52‐278a et seq. Following the issuance of this
PJR, and in the midst of numerous discovery disputes that followed, TriPlanet
filed for bankruptcy in the United States District Court for the Southern District
of New York and thereafter became subject to an automatic bankruptcy stay.
On March 31, 2015, the District Court (Meyer, J.)1 issued an order (“March
31 Order”) granting a motion by Roberts for sanctions against Defendants. In
this March 31 Order, the District Court awarded Roberts a default judgment in
the amount of $8,136,222.60 as a discovery sanction against Defendants. The
The case was transferred on March 24, 2014 from Judge Underhill’s docket to Judge
1
Meyer’s. Special App. 5.
3
March 31 Order did not decide certain of Roberts’ claims, and although it stated
that “default judgment shall enter,” no separate docket entry was made.
On April 14, 2015, Roberts began taking steps to enforce the default
judgment. On May 20, 2015, Defendants wrote a letter to the District Court Clerk
stating that no judgment had been entered against them. In response, the District
Court convened a teleconference and ordered the parties to submit letter briefs
addressing the finality of the judgment.
On June 24, 2015, after considering the parties’ submissions, the District
Court issued a second order (“June 24 Order”) ruling that the March 31 Order
was intended to be final and that the June 24 Order constituted a separate
document pursuant to Rule 58(a). The District Court then certified the default
judgment as final under Fed. R. Civ. P. 54(b).
Defendants filed notice of appeal on July 22, 2015. They challenge the
merits of the default judgment, the District Court’s exercise of personal
jurisdiction, and the finality of the March 31 and June 24 Orders.2
2 We assume the parties’ familiarity with the facts and record below, which we reference
only as necessary to explain our decision.
4
I. Entry of Default Judgment as a Discovery Sanction
We review a district court’s entry of a default judgment under Federal
Rule of Civil Procedure 37(b) for an abuse of discretion. See Guggenheim Capital,
LLC v. Birnbaum, 722 F.3d 444, 451 (2d Cir. 2013). “Whether a litigant was at fault
or acted willfully or in bad faith are questions of fact, and we review [a] [d]istrict
[c]ourt’s determinations for clear error.” Agiwal v Mid Island Mortg. Corp., 555
F.3d 298, 302 (2d Cir. 2009) (per curiam).
“When assessing a district court’s exercise of its discretion pursuant to
Rule 37, [this Court] generally look[s] to ‘(1) the willfulness of the non‐compliant
party; (2) the efficacy of lesser sanctions; (3) the duration of the noncompliance;
and (4) whether the non‐compliant party had been warned’ that noncompliance
would be sanctioned.” Guggenheim Capital, 722 F.3d at 451 (quoting Agiwal, 555
F.3d at 302). “Because the text of the rule requires only that [a] district court’s
orders be ‘just,’ . . . and because [a] district court has wide discretion in imposing
sanctions under Rule 37, these factors are not exclusive, and they need not each
be resolved against the party challenging [a] district court’s sanctions for us to
conclude that those sanctions were within the court’s discretion.” S.E.C. v.
5
Razmilovic, 738 F.3d 14, 25 (2d Cir. 2013), as amended (Nov. 26, 2013) (citation and
internal quotation marks omitted).
Rule 37(b) allows a district court “broad discretion in fashioning an
appropriate sanction” to address discovery‐related abuses. Residential Funding
Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 101 (2d Cir. 2002). This Court has
outlined three purposes of discovery sanctions:
First, they ensure that a party will not benefit from its own failure to
comply. Second, they are specific deterrents and seek to obtain
compliance with the particular order issued. Third, they are
intended to serve a general deterrent effect on the case at hand and
on other litigation, provided that the party against whom they are
imposed was in some sense at fault.
S. New England Tel. Co. v. Global NAPs Inc., 624 F.3d 123, 149 (2d Cir. 2010)
(internal quotation marks omitted). “Certain Rule 37 remedies—dismissing a
complaint or entering judgment against a defendant—are severe sanctions, but
they may be appropriate in ‘extreme situations,’ as ‘when a court finds
willfulness, bad faith, or any fault on the part of the’ noncompliant party.”
Guggenheim Capital, 722 F.3d at 450–51 (quoting Bobal v. Rensselaer Polytechnic
Inst., 916 F.2d 759, 764 (2d Cir. 1990)).
Defendants argue on appeal that the District Court abused its discretion in
awarding Roberts a default judgment of $8,136,222.60 as a discovery sanction
6
because it (1) “refused to consider the documents provided by [Defendants],”3
Appellants’ Br. 15–19; (2) “erred in its analysis of the financial documents
[Defendants] produced and those financial statements that [Defendants] were
unable to produce,” Appellants’ Br. 19–20; (3) “ignored TriPlanet’s actual cost of
sales,” Appellants’ Br. 20–21; (4) “awarded Roberts 25% of net profits based on
Roberts’ say so,” Appellants’ Br. 21–22; (5) “sanctioned [Defendants] for
documents that had been produced or that were not in [Defendants’] possession,
custody or control,” Appellants’ Br. 22–24; and (6) failed to hold an evidentiary
hearing to determine damages, Appellants’ Br. 24–27. Defendants claim further
that “Roberts’ settlement with TriPlanet would have been exposed during an
evidentiary hearing and Roberts’ concealment of this settlement provides a basis
for this Court to vacate the amount awarded to Roberts on default.” Appellants’
Br. 27.
We disagree, concluding instead that the District Court properly exercised
its discretion in entering a default judgment in the amount of $8,136,222.60 as a
3
Although Defendants represented to the District Court that they had engaged KPMG
to generate audited financial statements, Defendants never actually did so and instead
hired an accounting firm called Raich, Ende, Malter & Co. to generate a “compilation
summary” report (“Raich Report”). Additionally, Defendants presented to the District
Court a financial statement prepared by an accountant named Ira Spiegel (“Spiegel
Declaration”).
7
discovery sanction against Defendants after two years of their repeated defiance
of court orders. Further, we conclude that the District Court properly considered
the evidence produced by Roberts as to the amount of his damages. In reaching
these conclusions, we take careful note of the District Court’s findings that, over
a two‐year period, Defendants willfully refused to comply with numerous court
orders regarding financial discovery and disclosure of assets to satisfy the
outstanding PJR Order. We also acknowledge the District Court’s express and
detailed findings that Defendants offered “misrepresentations” and “inadequate
explanations” on numerous occasions, thereby demonstrating “their bad faith
throughout these proceedings.” Special App. 20–23.
Though the default judgment amount awarded to Roberts was
considerably higher than that set forth in the Raich Report, the District Court
reasonably determined that this report was based on deficient, self‐serving
information, and thus it was not an abuse of discretion for the District Court to
credit Roberts’ presentation and supporting evidence during the contested
hearing on September 4, 2014. The District Court described the Raich Report as
“not an independent audit of TriPlanet’s records but . . . allegedly a compilation
derived from TriPlanet’s internal financial records and with extensive
8
disclaimers about its reliability.” App. 620. The District Court “ensured that
there was a basis for the damages specified in [the] default judgment,” Action
S.A. v. Marc Rich & Co., 951 F.2d 504, 508 (2d Cir. 1991) (internal quotation marks
omitted), by properly determining that its damages calculation was supported by
“sufficient evidence,” including “detailed affidavits and documentary evidence,”
Cement & Concrete Workers Dist. Council Welfare Fund, Pension Fund, Annuity Fund,
Educ. & Training Fund & Other Funds v. Metro Found. Contractors Inc., 699 F.3d 230,
234 (2d Cir. 2012).
Further, because it had a “sufficient basis from which to evaluate the
fairness of the sum,” see Action S.A., 951 F.2d at 508 (alteration and internal
quotation marks omitted), the District Court did not err in declining to revise its
calculation in light of the Spiegel Declaration. The Declaration was submitted
months after the September 4, 2014 default judgment hearing and relied on
documents improperly withheld during discovery. The District Court properly
found “no basis to conclude that [Spiegel’s] calculations are correct” and gave
“little evidentiary weight” to the Spiegel Declaration on the basis that it “(1)
appears to challenge the individual [D]efendants’ liability . . . , which has already
been established by virtue of their default, and (2) its analysis relies on
9
documents that are the subject of defendants’ discovery violations.” Special
App. 41 & n.8. Indeed, had the Court revised its calculation in light of the
Spiegel Declaration, it would have risked “encourag[ing the very] dilatory
tactics” that Rule 37 sanctions aim to deter. S. New England Tel. Co., 624 F.3d at
149 (quoting Cine Forty‐Second St. Theatre, 602 F.2d at 1068).
Throughout the proceedings, the District Court afforded Defendants
ample notice and opportunity to be heard, consistent with due process. Satcorp
Int’l Grp. v. China Nat. Silk Imp. & Exp. Corp., 101 F.3d 3, 6 (2d Cir. 1996) (“[D]ue
process requires . . . that the delinquent party be provided with notice of the
possibility that sanctions will be imposed and with an opportunity to present
evidence or arguments against their imposition.”). The District Court’s
awareness of the Settlement Agreement (or alleged lack thereof) is immaterial
because the terms of that Agreement specifically barred it from being considered
in the district court proceedings.4
4 The Settlement Agreement included the express stipulation that it was “intended
solely for purposes of settling all disputes between Roberts and [TriPlanet], and that it
is not intended to impair, compromise, release or otherwise impact Roberts’ recovery
against Sophien and Imed Bennaceur in the Connecticut Action. Further the parties
stipulate[d] and agree[d] that neither Roberts nor [TriPlanet], shall utilize this
[Settlement Agreement] in any other proceeding, including the Connecticut Action, for
any purposes whatsoever.” App. Dkt. #35 (Ex. N at 10). Roberts conditioned his
acceptance of the Settlement Agreement on a separate escrow agreement (“Escrow
10
II. Forfeiture of Personal Jurisdiction
A district court’s determination that defendants waived or forfeited their
personal jurisdiction defense is reviewed for an abuse of discretion. Hamilton v.
Atlas Turner, Inc., 197 F.3d 58, 60 (2d Cir. 1999).5
Federal Rule of Civil Procedure 12(h)(1) requires a party to raise a defense
of lack of personal jurisdiction either by motion or in a responsive pleading;
otherwise, the defense is deemed waived. See Fed. R. Civ. P. 12(h)(1). “The
requirement that a court have personal jurisdiction is a due process right that
may be waived either explicitly or implicitly.” Transaero, Inc. v. La Fuerza Aerea
Boliviana, 162 F.3d 724, 729 (2d Cir. 1998) (citing Ins. Corp. of Ireland v. Compagnie
Agreement”) prohibiting the Settlement Agreement from being filed until after the
District Court “decide[d] the finality of the Order of Default Judgment entered by the
Connecticut District Court on March 31, 2015, pending before the District Court.” App.
Dkt. #35 (Ex. O).
5 The District Court appeared to attribute Defendants’ loss of their personal jurisdiction
defense to “waiver.” Nevertheless, the Court’s opinion also referenced a second,
distinct doctrine, “forfeiture.” As we have noted, “[w]aiver is different from forfeiture.”
Hamilton, 197 F.3d at 61 (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).
“Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the
‘intentional relinquishment of a known right.’” Id. (quoting Olano, 507 U.S. at 733). A
party may, for example, waive a defense by failing to raise it in a motion or responsive
pleading. See Fed. R. Civ. P. 12(h)(1). But even if a party has avoided waiver, that
litigant may still forfeit a right or defense by forgoing subsequent opportunities to
litigate that issue. See id. As discussed below, we conclude that, any waiver aside,
Defendants forfeited this defense.
11
des Bauxites de Guinee, 456 U.S. 694, 703–05 (1982)). “[T]o preserve the defense of
lack of personal jurisdiction, a defendant need only state the defense in its first
responsive filing and need not articulate the defense with any rigorous degree of
specificity.” Mattel, Inc. v. Barbie‐Club.com, 310 F.3d 293, 307 (2d Cir. 2002); see
also Transaero, 162 F.3d at 730 (upholding the preservation of a personal
jurisdiction defense raised only in a footnote in the defendant’s first responsive
pleading).
Even if a party meets the requirements of Rule 12(h)(1), however, “[a]
court will obtain, through implied consent, personal jurisdiction over a
defendant if ‘[t]he actions of the defendant [during the litigation] . . . amount to a
legal submission to the jurisdiction of the court, whether voluntary or not.’” City
of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 134 (2d Cir. 2011) (quoting
Ins. Corp. of Ireland, 456 U.S. at 703). Furthermore, “a delay in challenging
personal jurisdiction by motion to dismiss may result in waiver, even where the
defense was asserted in a timely answer.” Hamilton, 197 F.3d at 60 (alteration
and internal quotation marks omitted). Similarly, a party may forfeit a right or
defense by actively litigating other issues and forgoing the opportunity to litigate
12
that right or defense. In assessing whether waiver or forfeiture has occurred,
“we consider all of the relevant circumstances.” Id. at 61.
In Hamilton, this Court found that the district judge had exceeded his
allowable discretion in ruling that waiver of the defendant’s personal jurisdiction
defense had not occurred.6 Id. Although in that case it was “undisputed that
[the defendant] met the formal requirements of Rule 12(h)(1) by including in its
answer the following sentence: ‘The Court lacks personal jurisdiction over [the
defendant],’” id. at 60, the defendant nevertheless “participate[d] in extensive
pretrial proceedings” and failed to act on “numerous opportunities to move to
dismiss during the four‐year interval that followed its inclusion of the defense in
its answer,” id. at 59.
In reversing the district court’s ruling that the defendant had not waived
personal jurisdiction, the Hamilton panel observed that “[b]y withholding its
motion, [the defendant] [was] gambl[ing] that it could raise the personal
jurisdiction issue on the eve of trial, in case a trial occurred.” Id. at 62. This
gamble, coupled with defendant’s “participat[ion] in pretrial proceedings but
6 The district court in Hamilton used the term “waiver” in assessing whether the
defendant had preserved its personal jurisdiction defense. On appeal, “we note[d] that
the issue is more properly considered one of forfeiture than of waiver.” Hamilton, 197
F.3d at 61.
13
[failure to move] to dismiss for lack of personal jurisdiction despite several clear
opportunities to do so during the four‐year interval after filing its answer,” led
the panel to conclude “not only that [defendant] [waiv]ed its personal
jurisdiction defense, but also that this [was] the rare case where a district judge’s
contrary ruling exceeds the bounds of allowable discretion.” Id. at 62–63.
Here, similar to Hamilton, the District Court acknowledged and the parties
do not dispute that Defendants technically complied with Rule 12(h)(1) by
moving to dismiss. Appellee’s Br. 29; Special App. 14. Unlike Hamilton,
however, the District Court here ruled that Defendants had forfeited their
personal jurisdiction defense by “engag[ing] in significant motion practice and
pretrial discovery, including discovery on the merits, without including the
defense in responsive pleadings,” and further by “avail[ing] themselves of the
opportunities afforded by Connecticut law by seeking a prejudgment remedy
against plaintiff.” Special App. 16.7
7 Roberts emphasizes that “Appellants intentionally sought an affirmative remedy from
the District Court to take advantage of the benefits of Connecticut state law—wholly
apart from the assertion of counterclaims.” Appellee’s Br. 31.
In response, Defendants analogize their application for a PJR under Connecticut law to
the filing of a compulsory counterclaim, which would not necessarily constitute a
waiver or forfeiture of a personal jurisdiction defense because “[t]he weight of authority
is that no Rule 12(b)(2) defense is waived by assertion of a counterclaim, whether
14
We find no abuse of discretion in this ruling. We agree with Roberts that
Defendants forfeited their personal jurisdiction defense by “invoking the District
Court’s subpoena power by issuing two third‐party subpoenas duces tecum to
Roberts’ former and (then) current employers in the State of Connecticut in order
to obtain evidence to defend against Roberts’ claim of fraudulent inducement; . . .
compelling Roberts’ deposition in Connecticut on merits‐based subjects; and . . .
entering into a Confidentiality Stipulation with Roberts that is expressly subject
to the District Court’s jurisdiction.” Appellee’s Br. 30–31. In our view, these
activities constitute “participat[ion] in extensive pretrial proceedings” similar to
that undertaken by the Hamilton defendant, which served implicitly to forfeit that
defendant’s lack of personal jurisdiction defense. Hamilton, 197 F.3d at 59.
Furthermore, in both Hamilton and this case, the defendants passed up on
numerous opportunities to assert a personal jurisdiction defense. Specifically,
permissive or compulsory.” Appellants’ Br. 33 (citing Wright & Miller, 10 Fed. Prac. &
Proc. Civ. § 1397 (3d ed. 2005)). Defendants claim that their litigation and discovery
activities did not forfeit their personal jurisdiction defense because they “were required
by the rules of procedure to engage in discovery and they necessarily had to respond to
Roberts’ motion.” Appellants’ Br. 36.
The parties do not dispute that the assertion of a counterclaim does not waive a Rule
12(b)(2) defense. The crux of their disagreement regarding the PJR is whether the PJR is
considered a counterclaim for these purposes. We need not conclusively resolve this
issue here because regardless of whether the PJR is considered a counterclaim, we find
that Defendants’ other pre‐trial activities sufficed to forfeit their personal jurisdiction
defense.
15
Defendants here raised a personal jurisdiction defense in neither their answer
nor their amended answer. Passing up on these opportunities while
simultaneously participating in fairly extensive pre‐trial proceedings, including
discovery on the merits, suffices to forfeit Defendant’s Rule 12(h)(1) defense.8
III. The March 31 and June 24 Orders
A. Finality
Federal Rule of Civil Procedure 58(a) states that “[e]very judgment and
amended judgment must be set out in a separate document,” notwithstanding
certain exceptions inapplicable here. This separate document rule is “designed
to reduce uncertainty on the part of an aggrieved party as to when the time to file
a notice of appeal begins to run.” RR Vill. Ass’n Inc. v. Denver Sewer Corp., 826
F.2d 1197, 1201 (2d Cir. 1987). Rule 58(a) “must be mechanically applied . . . to
avoid new uncertainties as to the date on which a judgment is entered.” United
States v. Indrelunas, 411 U.S. 216, 221–22 (1973) (per curiam).
“[A] one‐sentence order denying a motion satisfies the separate document
rule.” RR Vill., 826 F.2d at 1201. “[A]n order that is part of an opinion or
8 Defendants also argue that the District Court did not have personal jurisdiction over
them. We need not reach this question, however, because we conclude that Defendants
forfeited their personal jurisdiction defense.
16
memorandum, however, does not.” Id. (citing, inter alia, Advisory Committee
Note to 1963 Amendment of Fed. R. Civ. P. 58). In this Circuit, a judgment must
be explicitly labeled a “judgment” to be considered such. Cooper v. Town of E.
Hampton, 83 F.3d 31, 34 (2d Cir. 1996); cf. Kanematsu–Gosho, Ltd. v. M/T Messiniaki
Aigli, 805 F.2d 47, 49 (2d Cir. 1986) (per curiam) (“One clear way [of assuring
notice] is to call a judgment a judgment.”).
“Where an order appealed from clearly represents a final decision and the
appellees do not object to the taking of an appeal, the separate document rule is
deemed to have been waived and the assumption of appellate jurisdiction is
proper.” Selletti v. Carey, 173 F.3d 104, 109–10 (2d Cir. 1999). This waiver rule is
premised on the separate document rule’s overarching purpose to promote
notice and reduce uncertainty:
Certainty as to timeliness . . . is not advanced by holding that
appellate jurisdiction does not exist absent a separate judgment. If,
by error, a separate judgment is not filed before a party appeals,
nothing but delay would flow from requiring the court of appeals to
dismiss the appeal. Upon dismissal, [a] district court would simply
file and enter the separate judgment, from which a timely appeal
would then be taken. Wheels would spin for no practical purpose.
Bankers Trust Co. v. Mallis, 435 U.S. 381, 385 (1978); see also 9 J. Moore, Federal
Practice ¶ 110.08[2], p. 119–20 (1970) (“[I]t must be remembered that the rule is
17
designed to simplify and make certain the matter of appealability. It is not
designed as a trap for the inexperienced. . . . The rule should be interpreted to
prevent loss of the right of appeal, not to facilitate loss.”).
Defendants here argue that neither the March 31 Order nor the June 24
Order is an appealable final judgment because neither satisfies the requirements
of Rule 58. Appellants’ Br. 38–40. Roberts opposes Defendants’ “attempt to
dismiss their own appeal to the extent [Defendants] sought an advisory ruling
that their appeal was premature, which finding would only cause delay and
waste judicial resources.” Appellee’s Br. 47. Roberts does not, however, “oppose
[Defendants’] filing their Notice of Appeal on grounds that it was premature”
insofar as the appeal “challenge[s] . . . the merits of the District Court’s default
judgment.” Id.
Because Roberts as Appellee does not object to the Defendants’ taking of
an appeal, we deem the separate document rule waived on the ground that
dismissing the appeal for lack of appellate jurisdiction would serve no practical
purpose. Roberts has not objected to appellate jurisdiction even despite some
uncertainty as to whether a final judgment was successfully entered pursuant to
the separate document rule. Sending the case back to the District Court
18
presumably would result in nothing more than the filing of another (timely)
appeal, and thus dismissing for lack of appellate jurisdiction would cause
“[w]heels [to] spin for no practical purpose.” Bankers Trust, 435 U.S. at 385.
B. Certification
A district court’s finality determination under Federal Rule of Civil
Procedure 54(b) is reviewed for an abuse of discretion. Curtiss‐Wright Corp. v.
General Elec. Co., 446 U.S. 1, 10 (1980). Although federal policy generally
disfavors piecemeal appeals, see id. at 8, Rule 54(b) provides an exception to this
principle:
When an action presents more than one claim for relief—whether as
a claim, counterclaim, crossclaim, or third‐party claim—or when
multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no just reason for
delay.
“[I]n deciding whether there are no just reasons to delay the appeal of individual
final judgments . . . a district court must take into account judicial administrative
interests as well as the equities involved.” Novick v. AXA Network, LLC, 642 F.3d
304, 310 (2d Cir. 2011) (quoting Curtiss‐Wright, 446 U.S. at 8). “The determination
of whether there is no just reason to delay entry of a final judgment is a matter
19
committed to the sound discretion of the district court.” L.B. Foster Co. v. Am.
Piles, Inc., 138 F.3d 81, 86 (2d Cir. 1998).
“[A] judgment expressly certified as final under Rule 54(b) is no less final
for omitting a statement supporting a determination that there is no reason for
delay. Although we have remanded cases in which such a statement was
lacking, we also have excused a failure to state reasons “[w]here the reasons . . .
are obvious . . . and a remand to the district court would result only in
unnecessary delay in the appeal process.” Brown v. Eli Lilly & Co., 654 F.3d 347,
355 (2d Cir. 2011) (citation omitted) (quoting Fletcher v. Marino, 882 F.2d 605, 609
(2d Cir. 1989)).
Defendants argue here that “[t]he District Court abused its discretion
when it improperly certified the June 24 Order (and attempted to use the June 24
Order to add a Rule 54(b) certification to the March 31 Order), because both the
March 31 and June 24 Orders left pending (a) claims against [Defendants], (b)
claims against TriPlanet, (c) a counterclaim against Roberts concerning his
employment agreement, and (d) claims against Moez Bennaceur.” Appellants’
Br. 41–42. According to Defendants, these claims “arise from the same operative
20
facts” and thus should have precluded the District Court from issuing a Rule
54(b) certification. Appellants’ Br. 43–45.
Defendants also argue that “[t]he District Court abused its discretion when
it attempted to . . . modify [substantively] the March 31 Order, nunc pro tunc: (1)
to include a Rule 54(b) certification that was not present in the March 31 Order,
and (2) to convert the March 31 Order into a judgment.” Appellants’ Br. 48.
Though recognizing that “appellate courts have permitted a district court to
enter a nunc pro tunc order to affix a Rule 54(b) certification,” Defendants attempt
to distinguish those cases from theirs while claiming “it is obvious that the
District Court improperly sought to prevent the appeal of its . . . March 31 Order
by declaring that it was a ‘judgment’ as of March 31, 2015—in June 2015.”
Appellants’ Br. 50–51.
Roberts responds that even though “the March 31 Order does not include
certain talismanic language required by Rule 54(b),” it nevertheless can be
deemed a final judgment because the District Court plainly intended it to be
such. Appellee’s Br. 49 (citing Guggenheim Capital, 722 F.3d at 449, for the
proposition that “a decision is final when the court clearly intends to close the
case, i.e., to enter a final judgment” (internal quotation marks omitted)). Roberts
21
further argues that “the ‘live’ claims [Defendants] contend remained unresolved
before the District Court plainly had been subsumed into proceedings in the
Bankruptcy Court, and were no longer before the District Court.” Appellee’s Br.
50–51. Finally, Roberts argues that even if the March 31 Order was not a final
judgment under Rule 54(b), it was certified as such in the June 24 Order by the
language stating, “in light of the inherent purposes of a default judgment to
preclude further delay, that there is no just reason for delay such that final
judgment shall enter as indicated above against defendants Sophien and Imed
Bennaceur.” Appellee’s Br. 51 (quoting Special App. 44).
We conclude that the District Court did not abuse its discretion in issuing
the June 24 Order to (1) clarify that its March 31 Order was intended to be final
and (2) certify the March 31 Order under Rule 54(b). We agree with Roberts that
Defendants “mischaracterize[] the circumstances presented here, where the
judgment against [Defendants] was premised not on merits‐based findings of
liability as to the underlying wage, breach, and fraud claims, but as a sanction
under Rule 37(b), entered as a result of [Defendants’] bad faith and intentional
misconduct.” Appellee’s Br. 53. This means—even assuming the claims left
pending in the March 31 Order had not been subsequently resolved in the
22
Bankruptcy Court—that a remand to the District Court “would result only in
unnecessary delay in the appeal process.” Brown, 654 F.3d at 355 (internal
quotation marks omitted). Moreover, there is no danger that piecemeal appeals
will occur in this case because the Defendants’ appeal relates not to the merits of
Roberts’ claims against them, but instead to whether the District Court abused its
discretion in entering the $8,136,222.60 default judgment against them.
Further, we find no merit in Defendants’ argument that the District Court
could not have used the June 24 Order to nunc pro tunc render the March 31
Order a final judgment. The District Court issued the June 24 Order merely to
clarify its intent to render a final judgment in its March 31 Order, not to modify
any substantive part of the judgment that it clearly intended in the March 31
Order. This type of correction is permissible under Federal Rule of Civil
Procedure 60(a), which allows the District Court to “correct a clerical mistake or
a mistake arising from oversight or omission whenever one is found in a
judgment, order, or other part of the record.”9
9 This Court has held that “a Rule 60(a) motion is appropriate ‘where the judgment has
failed accurately to reflect the actual decision of the decision maker.’” Robert Lewis
Rosen Assocs., Ltd. v. Webb, 473 F.3d 498, 504 (2d Cir. 2007) (quoting In re Frigitemp Corp.,
781 F.2d 324, 327 (2d Cir. 1986)); see also Dudley v. Penn‐America Ins. Co., 313 F.3d 662,
665 (2d Cir. 2002) (construing and granting motion to correct “a judicial oversight,
namely the district court’s failure to include the monetary award in the Original
23
We have considered all of the parties’ remaining arguments and find them
to be without merit. Accordingly, we AFFIRM the judgment of the District
Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
Judgment” under Rule 60(a)). Though these cases typically deal with awards of
prejudgment interest inadvertently omitted from initial judgments, there is no reason
the same basic rationale should not apply equally in this situation. In Robert Lewis
Rosen, for example, a case in which this Court allowed a district court to correct a
judgment to reflect its “clear intention . . . to confirm [an] arbitration award in its
entirety,” 473 F.3d at 504, this Court explicitly declined to “endorse so narrow a view”
that Rule 60(a) “permits only corrections to errors or mistakes in the transcription of
judgments, not in the rendering of judgments,” id. at 505 n.11. We similarly decline to
endorse such a narrow view here.
24