Brian Elliott v. Archdiocese New York

- PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 11-2844
______________

BRIAN ELLIOTT,

Appellant

v.

ARCHDIOCESE OF NEW YORK;
CHURCH OF THE NATIVITY OF OUR BLESSED LADY;
MARIST BROTHERS OF THE SCHOOLS, INC., a New York
Corporation; MT. ST. MICHAEL’S SCHOOL; BROTHER
DAMIAN
GALLIGAN, Individually and in his official capacity
______________

On Appeal from the United States District Court
for the District of Delaware
(D.C. Civ. No. 1-09-00611)
Hon. Sue L. Robinson, District Judge
______________

Argued April 10, 2012
BEFORE: HARDIMAN, GREENAWAY, JR., and
GREENBERG, Circuit Judges
 (Filed: June 12, 2012)
______________

Thomas C. Crumplar
Robert Jacobs
Jacobs & Crumplar
2 East 7th Street
P.O. Box 1271
Wilmington, DE 19899

Stephen J. Neuberger (argued)
Thomas S. Neuberger
The Neuberger Firm
2 East 7th Street
Suite 302
Wilmington, DE 19801

Attorneys for Appellant

Mary F. Dugan
Anthony G. Flynn (argued)
Jennifer M. Kinkus
Neilli M. Walsh
Young, Conaway, Stargatt & Taylor
1000 North King Street
Rodney Square
Wilmington, DE 19801

Attorneys for Appellees
Archdiocese New York and

2
 Church of Nativity of Our
Blessed Lady

Penelope B. O’Connell (argued)
Mark L. Reardon
Elzufon, Austin, Reardon, Tarlov & Mondell
300 Delaware Avenue
Suite 1700, P.O. Box 1630
Wilmington, DE 19899

Attorneys for Appellees
Marist Brothers of the Schools, Inc.,
and Mt. St. Michael’s School
______________

OPINION OF THE COURT
______________

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this Court on an appeal from
the District Court’s partial final judgment entered pursuant to
Federal Rule of Civil Procedure 54(b) in favor of four of the
five defendants in this action, the Institutional Defendants,
following the Court’s conclusion that it lacked personal
jurisdiction over two of these defendants and that the applicable
statutes of limitations barred the plaintiff’s claim against all four
Institutional Defendants. Plaintiff, now appellant, Brian Elliott
brought this action against the Institutional Defendants, i.e., the

3
Archdiocese of New York (“the Archdiocese”), the Church of
the Nativity of Our Blessed Lady (“the Church”), The Marist
Brothers of the Schools, Inc. (“the Marist Brothers”), and Mt.
St. Michael’s School (“Mt. St. Michael’s”), and an individual
defendant, Brother Damian Galligan, seeking monetary damages
for personal injuries that Elliott allegedly suffered as a result of
Galligan’s sexual abuse of him beginning in 1977, when he was
eight years old, and continuing until 1983. For the reasons that
follow, we will dismiss the appeal for lack of jurisdiction.

II. FACTUAL HISTORY

The Archdiocese, a Roman Catholic entity and a
governing organization of the Catholic Church, is incorporated
in the State of New York with its principal place of business in
New York City. The Church of the Nativity, a private religious
organization and parish under the Archdiocese, also is
incorporated in the State of New York with its principal place of
business in New York City. The Marist Brothers is a religious
order. It is incorporated in the State of New York and serves
mass at the Church of the Nativity. Mt. St. Michael’s is
incorporated in the State of New York as a private religious high
school and is located in New York City. During the period that
he allegedly abused Elliott, Galligan was a brother of the Marist
Order, taught at Mt. St. Michael’s, and performed services at the
Church. Elliott was raised in the State of New Jersey, lived in
that state during the alleged abuse, and is still a resident and
citizen of that state.

Elliott’s grandmother, who lived in the Bronx, New

4
York, and was a parishioner of the Church of the Nativity,
introduced Elliott to Galligan. Galligan came to know Elliott’s
entire family but developed an especially close relationship with
Elliott. Beginning in the fall of 1977, when Elliott was eight
years old, Galligan allegedly began to sexually assault Elliott.
Elliott charges that Galligan continued his abuse on a regular
basis between 1977 and 1983 at various locations in New York
and New Jersey. Elliott also asserts that Galligan abused him in
Virginia and in Delaware where he took Elliott on two out-of-
state trips.

III. PROCEDURAL HISTORY

Elliott originally filed his complaint in the Superior Court
of Delaware, in and for New Castle County, on June 23, 2009.
Elliott thereafter filed an amended complaint, in which he
alleged that there was an agency relationship between Galligan
and the Institutional Defendants. In this vein, Elliott contended
that the Institutional Defendants employed Galligan at all
relevant times and were responsible for his supervision. Elliott
maintained that the Institutional Defendants gave Galligan the
power to act on their behalf, and that all of Galligan’s actions
with respect to Elliott fell within the scope of that authority,
were connected to Galligan’s routine job duties, and were for
the benefit of the Institutional Defendants. Elliott asserted also
that the Institutional Defendants ratified, or, at a minimum, did
not repudiate Galligan’s abuse of him to the extent that the
abuse may have occurred outside the scope of the authority that
the Institutional Defendants granted to Galligan. In this vein,

5
Elliott alleged that the Institutional Defendants had actual or
constructive knowledge of Galligan’s sexual abuse of Elliott.

On the basis of these and other allegations that Elliott
made concerning the Institutional Defendants’ awareness of
ongoing sexual abuse of children in the Catholic Church
generally, Elliott contended that the Institutional Defendants had
a duty to prevent Galligan from abusing him and to establish
measures to protect him against such abuse. Elliott alleged that
the Institutional Defendants, acting negligently and grossly
negligently, breached those duties causing Elliott mental,
emotional, and physical injury. In addition to Elliott’s claim that
the Institutional Defendants were negligent, his complaint
included a number of other theories of liability, including breach
of fiduciary duty, assault and battery, fraud, breach of an implied
contract, conspiracy, and aiding and abetting.

Defendants removed this action to the District Court on
the basis of diversity of citizenship. Thereafter, the Archdiocese
and the Church of the Nativity moved under Federal Rule of
Civil Procedure 12(b)(2) to dismiss all claims against them on
the ground that the Court lacked personal jurisdiction over them.
Alternatively, they sought a dismissal under Rule 12(b)(6) on
the ground that New York law applied to Elliott’s claims and the
action was untimely under New York’s statutes of limitations
such that Elliott failed to state a claim. Elliott responded that the
Court possessed personal jurisdiction over those defendants and
that Delaware law applied, such that his claims were timely
under the Delaware Child Victim’s Act of 2007 (the “CVA”),

6
Del. Code Ann. tit. 10, § 8145(a)-(b) (Supp. 2010). 1

1
In relevant part, the CVA provides:

(a) A cause of action based upon the sexual abuse
of a minor by an adult may be filed in the
Superior Court of this State at any time following
the commission of the act or acts that constituted
the sexual abuse. A civil cause of action for
sexual abuse of a minor shall be based upon
sexual acts that would constitute a criminal
offense under the Delaware Code.

(b) For a period of 2 years following July 9,
2007, victims of child sexual abuse that occurred
in this State who have been barred from filing suit
against their abusers by virtue of the expiration of
the former civil statute of limitations, shall be
permitted to file those claims in the Superior
Court of this State. If the person committing the
act of sexual abuse against a minor was employed
by an institution, agency, firm, business,
corporation, or other public or private legal entity
that owned [sic] a duty of care to the victim, or
the accused and the minor were engaged in some
activity over which the legal entity had some
degree of responsibility or control, damages
against the legal entity shall be awarded under this
subsection only if there is a finding of gross
negligence on the part of the legal entity.

7
 On December 21, 2009, the District Court granted the
Archdiocese’s and the Church’s motion, finding that it could not
exercise personal jurisdiction over either defendant.
Alternatively, the Court concluded that New York law applied
under Delaware’s choice-of-law jurisprudence and that New
York’s statutes of limitations barred Elliott’s claims. 2 See
Elliott v. The Marist Bros. of the Schs., Inc., 675 F. Supp. 2d
454 (D. Del. 2009). Elliott subsequently moved for the Court to
reconsider its order on the basis of an October 5, 2009 bench
ruling that a judge of the Delaware Superior Court issued in a
group of cases not involving Elliot that included allegations of
sexual abuse against Catholic institutions similar to those Elliott
brought against the Institutional Defendants. Elliott contended

Del. Code Ann. tit. 10, § 8145(a)-(b). In Sheehan v. Oblates of
St. Francis de Sales, 15 A.3d 1247, 1258-60 (Del. 2011), the
Delaware Supreme Court upheld the CVA against facial
constitutional challenges.
2
In this action, in which jurisdiction is predicated on diversity of
citizenship, the District Court in Delaware applied Delaware
choice of law principles. See Petrella v. Kashlan, 826 F.2d
1340, 1343 (3d Cir. 1987). This choice of law led the Court to
dismiss the case because it applied New York substantive law,
which requires contract and fraud actions to be filed within six
years and personal injury actions to be filed within three years of
the accrual of the cause of action. See N.Y.C.P.L.R. §§ 203(a),
213(2), 213(8), 214(5) (McKinney 2003). We do not here reach
the question of whether that application of New York
substantive law was correct.

8
that application of the Superior Court’s interpretation of the
CVA in his case would have allowed the Court to exercise
personal jurisdiction over the Institutional Defendants and
allowed the Court to apply Delaware law. The Court denied
Elliott’s motion.

The Marist Brothers and Mt. St. Michael’s answered
Elliott’s complaint without objecting to the District Court’s
exercise of jurisdiction over them. Later, however, those
entities moved for judgment on the pleadings pursuant to Rule
12(c) on the basis of the portion of the Court’s December 21
decision regarding the application of New York law and its
statutes of limitations. On September 21, 2010, the Court
granted the Marist Brothers’ and Mt. St. Michael’s’ motion, as it
followed its prior ruling that New York law applied and barred
Elliott’s claims.

Galligan answered Elliott’s complaint, and the claims
against him remain pending before the District Court. That
Court, however, has stayed those proceedings during our
consideration of this appeal.

After the Marist Brothers and Mt. St. Michael’s filed
their motion for judgment on the pleadings but before the
District Court granted that motion, the Archdiocese and the
Church on September 16, 2010, moved for entry of final
judgment pursuant to Rule 54(b). Then, after the Court granted
the Marist Brothers’ and Mt. St. Michael’s’ motion for judgment
on the pleadings, all four of the Institutional Defendants and
Elliott filed a joint stipulation requesting the entry of final
judgment pursuant to Rule 54(b) in accordance with the Court’s

9
disposition of the case against all four of the Institutional
Defendants. On November 30, 2010, the Court denied the
Archdiocese’s and the Church’s prior Rule 54(b) motion, stating
that “[t]he court generally does not enter judgment against
parties following motions to dismiss.” Appellant’s resp. to the
Clerk’s order of July 12, 2011 (“Appellant’s resp.”) tab C at 2.
Instead, the Court on November 30, 2010, pursuant to 28 U.S.C.
§ 1292(b) certified for interlocutory appeal its orders dismissing
Elliott’s claims as to all the Institutional Defendants. Elliott,
however, did not file a petition for leave to file an interlocutory
appeal, and neither the parties nor the Court took any further
action in this case for approximately the next six months.

On May 27, 2011, the Institutional Defendants and Elliott
once again filed a stipulation and proposed order requesting the
entry of final judgment under Rule 54(b). This time, on June 9,
2011, the District Court adopted the parties’ proposed order and
directed the entry of final judgment under Rule 54(b) in favor of
the Institutional Defendants. In doing so, the Court recited the
procedural history of the case, and stated that the parties “have
conferred and respectfully request the entry of final judgments
pursuant to Federal Rule of Civil Procedure 54(b) so that
[Elliott’s] appeals may proceed before the Third Circuit and may
be resolved with finality prior to any trial going forward in this
matter.” It thereafter directed that final judgments be entered
pursuant to Rule 54(b) for the Institutional Defendants.
Appellant’s resp. tab A at 1-3. The Court did not, however,
expressly determine that there was “no just reason for delay” in
the entry of a final judgment, an omission that, as we shall see,
has dispositive consequences for this appeal, nor did it set forth
a statement of reasons supporting its entry of a Rule 54(b)

10
judgment.

Following Elliott’s filing of a notice of appeal, the Clerk
of this Court on July 12, 2011, ordered the parties to file briefs
on the issue of whether the District Court’s certification satisfied
the requirements of Rule 54(b) such that we could exercise
jurisdiction over the appeal. In her order, the Clerk indicated
that the “orders appealed from do not dismiss all claims as to all
parties and do not appear to have been properly certified under
Fed. R. Civ. P. 54(b).” The parties thereafter filed briefs on this
issue, all contending that the District Court’s order of June 9,
2011, satisfies the provisions of Rule 54(b). On October 12,
2011, a motions panel of this Court referred the jurisdictional
question to the merits panel and instructed the parties to address
the issue further in their briefs on the merits. In the time from
the parties’ receipt of our Clerk’s order until the day of the oral
argument on this appeal none of the parties asked the District
Court to amend the June 9, 2011 order to overcome the possible
jurisdictional problem the Clerk identified in her July 12, 2011
order or moved that we remand the matter to the District Court
so that the parties could ask it to do so.

IV. JURISDICTION

The District Court had subject matter jurisdiction over
this matter pursuant to 28 U.S.C. §§ 1441 and 1332. The parties
contend that we have jurisdiction pursuant to 28 U.S.C. § 1291
by virtue of the District Court’s entry of a final judgment
pursuant to Rule 54(b). The parties, however, cannot by their

11
consent vest this Court with jurisdiction over this appeal.
Rather, as always, we must satisfy ourselves that we have
jurisdiction. See Arizonans for Official English v. Arizona, 520
U.S. 43, 73, 117 S.Ct. 1055, 1071 (1997) (“[E]very federal
appellate court has a special obligation to satisfy itself not only
of its own jurisdiction, but also that of the lower courts in a
cause under review, even though the parties are prepared to
concede it.”) (internal quotation marks and citation omitted);
Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104 (1982) (“[N]o
action of the parties can confer subject-matter jurisdiction upon
a federal court.”); In re Resorts Int’l, Inc., 372 F.3d 154, 161 (3d
Cir. 2004) (“Subject matter jurisdiction cannot be conferred by
consent of the parties.”) (internal quotation marks and citation
omitted); Samuel-Bassett v. KIA Motors Am., Inc., 357 F.3d
392, 396 (3d Cir. 2004) (“[P]arties may not confer subject
matter jurisdiction by consent.”).

Our jurisdictional inquiry must precede any discussion of
the merits of the case for if a court lacks jurisdiction and opines
on a case over which it has no authority, it goes “beyond the
bounds of authorized judicial action and thus offends
fundamental principles of separation of powers.” Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003,
1012 (1998); see also Cunningham v. R.R. Ret. Bd., 392 F.3d
567, 570 (3d Cir. 2004) (“We must resolve the threshold
jurisdictional issue before reaching the merits . . . .”).
Accordingly, if we determine that we do not have jurisdiction
over this appeal, our “only function remaining [will be] that of
announcing the fact and dismissing the cause.” Steel Co., 523
U.S. at 94, 118 S.Ct. at 1012 (quoting Ex parte McCardle, 74

12
U.S. (7 Wall.) 506, 514 (1868)).

V. ANALYSIS

A. A District Court’s Obligations Under Rule 54(b)

“This Court’s appellate jurisdiction is conferred and
limited by Congress’s grant of authority.” Berckeley Inv. Grp.,
Ltd. v. Colkitt, 259 F.3d 135, 139 (3d Cir. 2001) (“Berckeley I”)
(citing Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850)
(“Courts created by statute can have no jurisdiction but such as
the statute confers.”)). Under 28 U.S.C. § 1291, “[t]he courts of
appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States.” Generally,
an order which terminates fewer than all claims pending in an
action or claims against fewer than all the parties to an action
does not constitute a “final” order for purposes of 28 U.S.C. §
1291. See Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 431-
32, 76 S.Ct. 895, 897-98 (1956); Carter v. City of Phila., 181
F.3d 339, 343 (3d Cir. 1999). Under Rule 54(b), however, a
district court may convert an order adjudicating less than an
entire action to the end that it becomes a “final” decision over
which a court of appeals may exercise jurisdiction under 28
U.S.C. § 1291.

In a case such as this one that is before a court of appeals
pursuant to Rule 54(b), the court’s jurisdiction thus “depends
upon whether the district court properly granted 54(b)
certification.” Allis-Chalmers Corp. v. Phila. Elec. Co., 521

13
F.2d 360, 362 (3d Cir. 1975). Rule 54(b) (emphasis added)
provides:

Judgment on Multiple Claims or Involving
Multiple Parties. 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. Otherwise, any order or other
decision, however designated, that adjudicates
fewer than all the claims or the rights and
liabilities of fewer than all the parties does not
end the action as to any of the claims or parties
and may be revised at any time before the entry of
a judgment adjudicating all the claims and all the
parties’ rights and liabilities.

By allowing a district court to enter a final judgment on an order
adjudicating only a portion of the matters pending before it in
multi-party or multi-claim litigation and thus allowing an
immediate appeal, Rule 54(b) “attempts to strike a balance
between the undesirability of piecemeal appeals and the need for
making review available at a time that best serves the needs of
the parties.” Allis-Chalmers, 521 F.2d at 363. 3

3
A Rule 54(b) entry of final judgment may have consequences
beyond allowing an immediate appeal as it may allow execution

14
 Certification of a judgment as final under Rule 54(b) is
the exception, not the rule, to the usual course of proceedings in
a district court. “Not all final judgments on individual claims
should be immediately appealable, even if they are in some
sense separable from the remaining unresolved claims. The
function of the district court under the Rule is to act as a
dispatcher.” Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
8, 100 S.Ct. 1460, 1465 (1980) (internal quotation marks and
citation omitted); see also Panichella v. Pa. R.R. Co., 252 F.2d
452, 455 (3d Cir. 1958) (“[Rule] 54(b) orders should not be
entered routinely or as a courtesy or accommodation to counsel.
The power which this Rule confers upon the trial judge should
be used only in the infrequent harsh case as an instrument for
the improved administration of justice and the more satisfactory
disposition of litigation in the light of the public policy indicated
by statute [28 U.S.C. § 1291] and rule.”) (internal quotation
marks and citation omitted). Rule 54(b) thus requires that a
district court first determine whether there has been an ultimate
disposition on a cognizable claim for relief as to a claim or party
such that there is a “final judgment.” Curtiss-Wright Corp., 446
U.S. at 7, 100 S.Ct. at 1464. 4 If it determines that there has been
such a disposition, “the district court must go on to determine
whether there is any just reason for delay,” taking into account

on a judgment, a procedure that otherwise might not be
available. See 10 J. Moore et al. Moore’s Federal Practice ¶
54.26 [4] at 54-92 (3d ed. 1997).
4
Of course, certain orders lack sufficient finality so that a
district court cannot certify them as final under Rule 54(b).
Thus, it could not be suggested that an order denying a motion
for summary judgment could be certified as final under the rule.

15
“judicial administrative interests as well as the equities
involved.” Id. at 7-8, 100 S.Ct. at 1464-65.

This latter requirement, that a district court “must go on
to determine whether there is any just reason for delay,” is not
merely formalistic. Rule 54(b) makes clear that a district court
may direct entry of a final judgment under the rule “only if the
court expressly determines that there is no just reason for delay.”
See also Curtiss-Wright, 446 U.S. at 3, 100 S.Ct. at 1462
(“[Rule 54(b)] allows a district court dealing with multiple
claims or multiple parties to direct the entry of final judgment as
to fewer than all of the claims or parties; to do so, the court must
make an express determination that there is no just reason for
delay.”) (emphasis added). Otherwise, if the court does not
make that determination, “any order or other decision, however
designated” that does not dispose of all claims against all parties
is not final under Rule 54(b).

Consequently, where an order purports to certify a
judgment as final under Rule 54(b) but lacks the express
determination that the rule requires, a court of appeals lacks
jurisdiction over the order because it is not a “final” judgment
under either Rule 54(b) or under the traditional standards of 28
U.S.C. § 1291. Thus, Rule 54(b)’s “express” determination is a
jurisdictional prerequisite. See Berckeley Inv. Grp., Ltd. v.
Colkitt, 455 F.3d 195, 202 (3d Cir. 2006) (“Berckeley II”) (“We
concluded [in Berckeley I] that . . . an express determination
[that there is ‘no just reason for delay’] [i]s a jurisdictional
prerequisite required by Rule 54(b) . . . .”); see also Bhatla v.
U.S. Capital Corp., 990 F.2d 780, 786 n.6 (3d Cir. 1993) (In the
absence of an express determination that there is no just reason

16
for delay and an express direction for the entry of judgment
under Rule 54(b), “the order is not final and no appeal is
possible.”).

In Allis-Chalmers, we faced the question of whether a
district court’s formulaic recitation of the “no just reason for
delay” determination sufficed under Rule 54(b). See 521 F.2d at
362. We determined that mechanical adherence to the rule was
inadequate and held that “Rule 54(b) requires the district court
to do more than just recite the 54(b) formula of ‘no just reason
for delay.’” Id. at 364. We concluded that a district court
granting judgment under Rule 54(b) “should clearly articulate
the reasons and factors underlying its decision to grant 54(b)
certification.” 5 Id. In this connection, we adopted the Court of
Appeals for the Second Circuit’s approach in requiring that a
district court instead of merely “incorporating in the certificate .
. . the conclusory language of Rule 54(b), . . . make a brief
reasoned statement in support of its determination that, ‘there is
no just reason for delay.’” Id. (quoting Gumer v. Shearson,
Hammill & Co., Inc., 516 F.2d 283, 286 (2d Cir. 1974)). Thus,
after Allis-Chalmers, “[w]e consistently require that district
courts provide a statement of reasons when entering final
judgment under Rule 54(b).” Carter, 181 F.3d at 343 (citations
omitted); see also Waldorf v. Shuta, 142 F.3d 601, 610-11 (3d

5
Curtiss-Wright abrogated our opinion in Allis-Chalmers to the
extent that we indicated that the presence of a counterclaim
weighed heavily against a district court’s certification of a Rule
54(b) judgment. See Carter, 181 F.3d at 345 n.14. Our
requirement of the statement of reasons as set forth in Allis-
Chalmers, however, remains in place.

17
Cir. 1998) (“We consistently have required district courts to
provide a reasoned opinion as a prerequisite for appellate review
of a judgment certified as final.”).

In Carter, however, we determined that, unlike the need
for an express determination that there is “no just reason for
delay,” our judicially-imposed requirement under Allis-
Chalmers that a district court set forth a statement of reasons for
its certification “stands not as a jurisdictional prerequisite but as
a prophylactic means of enabling the appellate court to ensure
that immediate appeal will advance the purposes of the rule.”
181 F.3d at 345. Accordingly, “the absence of an explanation
by the district court does not pose a jurisdictional bar when the
propriety of the appeal may be discerned from the record.” Id.
at 346.

B. The District Court’s Rule 54(b) Certification Lacks
an “Express” Determination and a Statement of Reasons.

Elliott contends that the portion of the District Court’s
Rule 54(b) order stating that the parties requested the entry of a
Rule 54(b) judgment “so that [Elliott’s] appeals may proceed
before the Third Circuit and may be resolved with finality prior
to any trial going forward in this matter,” Appellant’s resp. tab
A at 2, satisfies Rule 54(b)’s “express” determination
requirement. Arguably, though we could infer from the Court’s
order that it agreed with the parties’ statement, we will not
impute to the Court its summary of the parties’ justification for
seeking a Rule 54(b) judgment. Moreover, even if we regarded
that recitation as the language of the Court, it does not
incorporate an express determination that there is no just reason

18
for delay.

At oral argument, Elliott focused on the portion of the
Rule 54(b) order that states that “it would be most efficient to
hold a single trial.” Id. Yet Elliott does not derive that
quotation from the District Court’s findings but rather he takes it
from the Court’s summary of an October 2010 teleconference
that the Court held prior to denying Rule 54(b) certification the
first time the parties moved for it. See id. (“On October 13,
2010, this Court held a teleconference to discuss the parties’
Joint Stipulation and Order. During that teleconference, the
Court and all parties agreed that it would be most efficient to
hold a single trial after the resolution of the appeals . . . .”). In
any event, the Court’s statement would not reflect the Court’s
determination that there is no just reason for delay in entry of a
final judgment; it simply would be an observation of one of the
advantages of Rule 54(b) certification. After all, even if we
assume that disposition of this case in a single trial might
advance efficiency and that the outcome of this appeal, if we
exercised jurisdiction, would lead to the Court on remand
resolving the case with only one trial, it is still possible that
there might be a just reason for a delay in entry of a final
judgment. In any event, the Court did not “expressly
determine[] that there is no just reason for delay,” nor did it
employ similar language that could have been intended to
convey a finding that it had reached such a conclusion.

The District Court also did not set forth a statement of
reasons as to why there was no just reason for delay in entry of a
final judgment as Allis-Chalmers required it to do when entering
a Rule 54(b) final judgment. The parties argue that the Court’s

19
June 9, 2011 order certifying the entry of a Rule 54(b) judgment
and its earlier November 30, 2010 order denying entry of such a
judgment and instead certifying this matter for interlocutory
appeal together set forth an adequate rationale for the Court’s
entry of the Rule 54(b) judgment. We note first that we find
surprising the parties’ reliance on the Court’s earlier order
denying a Rule 54(b) judgment. It is not logical to contend that
the Court’s reasoning in denying certification under Rule 54(b)
six months prior to its ultimate certification of the Rule 54(b)
judgment constitutes a statement of reasons for that later
certification. In point of fact, the actual Rule 54(b) order does
not contain any statement of reasons justifying the Court’s
decision to certify the entry of final judgment under Rule 54(b).6

In addressing the consequence of the omissions in the
District Court’s June 9, 2011 order, we first consider the effect
of the District Court’s failure to make the express finding of “no
just reason for delay” because, while in Carter we concluded
that a district court’s failure to set forth a statement of reasons is
not a jurisdictional defect so long as a court of appeals may
ascertain the rationale from the record, see 181 F.3d at 345-46, a

6
A comparison of the District Court’s order certifying the Rule
54(b) judgment with the parties’ stipulation and proposed order
demonstrates that the Court adopted the parties’ proposed order
verbatim without providing any additional text. While the
Court’s determination to adopt the parties’ proposed order
verbatim is not in itself problematic, its omission of any
additional reasoning leads us to question the parties’ contention
that the Court expressly set forth its reasons for granting a Rule
54(b) judgment in its certification order.

20
district court’s failure to include the express determination that
there is no just reason for delay poses a jurisdictional hurdle, see
Berckeley II, 455 F.3d at 202-03. In this vein, we reject the
parties’ contention that Carter somehow obviates a district
court’s obligation to make the “express” determination of “no
just reason for delay” or that under Carter we may overlook the
district court’s failure to do so. We rejected this interpretation
of Carter in Berckeley I, noting that “Carter was concerned with
whether the court’s failure to articulate the factors discussed in
Allis-Chalmers divested us of appellate jurisdiction, not whether
the express determination of ‘no just cause for delay’ was
required for certification under Rule 54(b).” See Berckeley I,
259 F.3d at 141.

C. Rule 54(b)’s “Express” Determination Requirement

From the time of our decision in Berckeley I, it has been
quite clear that a district court when entering a final judgment
pursuant to Rule 54(b) must make an express finding that there
is no just reason for delay in entry of the judgment and that its
failure to do so deprives us of jurisdiction over an appeal from
the judgment. The exact contours of the district court’s
obligation, and, more precisely, the question of whether a
district court must employ the talismanic phrase “no just reason
for delay” to satisfy Rule 54(b) are, however, open questions in
this Court. We came close to settling the matter in Berckeley I,
and we thus begin our discussion of this issue with that case.

In Berckeley I, the district court’s order directed “the
entry of final judgment” in favor of the plaintiff against one of
the defendants but the order contained neither ‘“an express

21
determination that there is no just reason for delay,”’ nor “a
clear indication from the District Court’s rulings that it was
considering all the questions relevant to a Rule 54(b)
determination.” Id. at 140-41 & n.5 (quoting Fed. R. Civ. P.
54(b)). We observed that “nowhere in the District Court’s
orders resolving th[e] case did it use the words ‘no just cause for
delay’ or make any statement of an indisputably similar effect.”
Id. at 141. The parties argued that we could overlook the district
court’s failure in this regard because we could glean the court’s
intent from “language it used to praise expedition in the
resolution of the proceedings,” but “[w]e decline[d] to adopt the
position that general references to the necessity of expedition
can substitute for the ‘express’ determination required by the
Rule.” Id.

In rejecting the Berckeley I parties’ contention that Carter
eliminated the “express” determination requirement, we noted
that only one court, the Court of Appeals for the Fifth Circuit in
Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218
(5th Cir. 1990) (en banc) (per curiam), has held that,
notwithstanding a district court’s failure to state expressly in a
Rule 54(b) order that there was “no just cause for delay,” a court
of appeals could exercise jurisdiction over an appeal from the
order. Berckeley I, 259 F.3d at 142. In Kelly, a closely divided
en banc panel held that “[i]f the language in the order appealed
from, either independently or together with related portions of
the record referred to in the order, reflects the district court’s
unmistakable intent to enter a partial final judgment under Rule
54(b), nothing else is required to make the order appealable.”
908 F.2d at 1220. Notably, while the Kelly majority stated its
holding in terms of a rejection of the notion that a district court

22
is required “to mechanically recite the words ‘no just reason for
delay,’” id., the majority’s “unmistakable intent” standard
releases a district court not only from the obligation to state that
talismanic phrase but also to indicate with any similar language
that it has made the express determination that Rule 54(b)
requires. Thus, in Kelly the majority found that the district
court’s order, which was captioned “F.R.C.P. 54(b)
JUDGMENT” and directed “that there be final judgment entered
pursuant to Federal Rule of Civil Procedure 54(b),” satisfied
Rule 54(b) although it contained no other statements indicating
that the district court had considered whether there was cause
for delay. See id. at 1221. In contrast, the dissent in Kelly
interpreted Rule 54(b) to require that a district court either recite
the talismanic phrase “there is no just reason for delay” or some
paraphrase thereof to satisfy the “express” determination
requirement. See id. at 1222.

We found Kelly distinguishable in Berckeley I because
the district court’s rulings in Berckeley I did not make clear its
intent to enter a judgment pursuant to Rule 54(b) whereas the
district court in Kelly plainly intended to enter a Rule 54(b)
judgment. See Berckeley I, 259 F.3d at 143-44. On this ground,
we found the Rule 54(b) order in Berckeley I invalid and
dismissed the appeal for lack of jurisdiction. See id. at 144-46.
In Berckeley I, we thus noted that “[t]he manner in which we
dispose of this case does not require us to address, head on, the
issue presented in Kelly. Thus, we leave for another day
deciding whether the words ‘no just cause for delay’ are
required in haec verba to confer appellate jurisdiction under
Rule 54(b).” Id. at 142 n.7. We accordingly “abstain[ed] from
considering the merits of the [Court of Appeals for the] Fifth

23
Circuit’s position in Kelly until an analogous case, one in which
there is an unmistakable intent to enter judgment under Rule
54(b) but no express determination of ‘no just cause for delay,’
presents itself.” Id. at 145. That case now has arrived.

Here, the District Court’s intent to enter judgment under
Rule 54(b) is unmistakable. The Court’s June 9, 2011 order
directs that “[f]inal judgment be entered pursuant to Fed. R. Civ.
P. 54(b) in favor of” the Institutional Defendants and against
Elliott “on all claims.” Appellant’s resp. tab A at 3.
Nevertheless, in Berckeley I we strongly hinted at our
inclination to side with the dissenters in Kelly. We noted that
the “‘touch the bases’ approach taken by the Kelly dissenters,
see Kelly, 908 F.2d at 1223, has merit both because it is
consistent with the plain meaning of Rule 54(b) and because it
would result in a predictable process by which appeals are taken
under that rule.” Berckeley I, 259 F.3d at 142 n.7. For these
same reasons, today we conclude that the dissent in Kelly
offered the correct reading of Rule 54(b).

We hold that even in a case such as this one, in which a
district court clearly intends to enter judgment pursuant to Rule
54(b), it must state expressly that it has determined that there is
no just reason for delay. If it fails to do so, that judgment is not
a final judgment under Rule 54(b), and we do not have
jurisdiction over an appeal from that judgment. We note that
although we part ways with the Court of Appeals for the Fifth
Circuit on this issue, our decision in this case aligns us with the
positions of the Courts of Appeals for the Second, Ninth, Tenth,
and District of Columbia Circuits. See Blackman v. Dist. of
Columbia, 456 F.3d 167, 175-76 (D.C. Cir. 2006); Stockman’s

24
Water Co., LLC v. Vaca Partners, L.P., 425 F.3d 1263, 1265
(10th Cir. 2005); Nat’l Assoc. of Home Builders v. Norton, 325
F.3d 1165, 1167 (9th Cir. 2003); LTV Steel Co. v. United Mine
Workers (In re Chateaugay Corp.), 928 F.2d 63, 64 (2d Cir.
1991) (per curiam). 7

We also are persuaded, however, that Rule 54(b) does not
require that a district court use the talismanic phrase “there is no
just reason for delay.” The district court may state that it has

7
The Courts of Appeals for the Seventh and Eighth Circuits
appear to have varied their respective positions on whether an
“express” determination is required under Rule 54(b). Compare
Granack v. Cont’l Cas. Co., 977 F.2d 1143, 1145 (7th Cir. 1992)
(holding that order certified under Rule 54(b) not appealable
because certification lacked express determination and stating
that “[b]y definition, an express determination cannot be made
implicitly”) and Mooney v. Frierdich, 784 F.2d 875, 876 (8th
Cir. 1986) (dismissing appeal for lack of jurisdiction because
court failed to set forth any reasoning for its certification and
failed to make express determination) with Alexander v.
Chicago Park Dist., 773 F.2d 850, 854-55 (7th Cir. 1985)
(concluding that order satisfied Rule 54(b) where it lacked
express determination and direction but parties clearly knew of
their right to appeal) and United States v. Glenn, 585 F.2d 366,
367 n.2 (8th Cir. 1978) (rejecting argument that district court’s
order was not final under Rule 54(b) because it lacked express
finding where there was “no doubt that the district court
intended its orders to be final judgments for purposes of
appeal”).

25
determined expressly that “there is no just reason for delay”
using those precise words, or it may paraphrase or use language
“of an indisputably similar effect,” Berckeley I, 259 F.3d at 141,
so long as the district court’s order clearly contains the
“express” determination Rule 54(b) requires.

In ascertaining the meaning of Rule 54(b)’s “express”
determination requirement, we begin, as with any interpretive
exercise, with the text of the rule. “The Supreme Court and this
Court have repeatedly held that the Federal Rules of Civil
Procedure, like any other statute, should be given their plain
meaning.” Berckeley I, 259 F.3d at 142 n.7 (citing Bus. Guides,
Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 540,
111 S.Ct. 922, 928 (1991); United States v. Nahodil, 36 F.3d
323, 328 (3d Cir. 1994)) (some citations omitted); see also
Hagan v. Rogers, 570 F.3d 146, 157 (3d Cir. 2009) (same). “As
with a statute, our inquiry is complete if we find the text of the
Rule to be clear and unambiguous.” Business Guides, 498 U.S.
at 540-41, 111 S.Ct. at 928.

The text of Rule 54(b) is quite plain. 8 It provides that

8
The Court of Appeals for the Fifth Circuit in Kelly and this
Court in Berckeley I analyzed the version of Rule 54(b) that
preceded the current version of the rule. The earlier version
provided in relevant part that 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.” See Berckeley I, 259 F.3d at 140.
The rule provided further that “[i]n the absence of such

26
“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.”
(Emphasis added). Rule 54(b)’s use of the word “expressly” to
modify “determines” makes clear that the district court is
required to determine and to articulate the fact that it has
determined that there is no just reason for delay. The plain
meaning of “express” compels this conclusion. See Black’s
Law Dictionary 661 (9th ed. 2009) (defining “express” as
“[c]learly and unmistakably communicated; directly stated”);
Webster’s Third New International Dictionary 803 (Merriam-
Webster 1986) (defining “express” as “directly and distinctly
stated or expressed rather than implied or left to reference”). As
we stated in Berckeley I,

Under [the dictionary] definition [of ‘express’],
‘express determination that there is no just reason
for delay’ can mean only one thing: The judge’s
very words must state specifically that he or she
has decided that there is no just reason for delay.
Kelly, 908 F.2d at 1222. Thus, the argument
proceeds, it is self-evident that the first sentence
of Rule 54(b) requires an explicit manifestation
that the district court has determined there is no

determination and direction, any order or other form of decision,
however, designated,” which is not a final judgment as to all
claims and parties is not a final judgment under Rule 54(b). Id.
In 2007, that language was changed to the current form of Rule
54(b), but the stylistic changes did not change the substance of
the rule.

27
 just cause for delay and directing the entry of final
judgment.

259 F.3d at 142 n.7 (some internal quotation marks omitted).
On this same ground, the dissent in Kelly determined that Rule
54(b)’s requirement of an “express” determination precludes the
possibility that a district court’s order may satisfy Rule 54(b)
where a determination of no just reason for delay is “implied”
but is not “expressed” in the order. See Kelly, 908 F.2d at 1222-
24. In light of the straightforward definition of “express,” we
agree with that conclusion.

The second sentence of Rule 54(b) reinforces our
understanding of the rule. It provides that “[o]therwise, any
order or other decision, however designated, that adjudicates
fewer than all the claims or the rights and liabilities of fewer
than all the parties” is not a final judgment under Rule 54(b).
(Emphasis added). This sentence anticipates the precise
circumstance in this case, in which the district court designates
or titles an order to be a Rule 54(b) final judgment but fails to
make the express determination that the rule requires. The
effect of the omission is clear: it renders non-final any purported
Rule 54(b) judgment in which the district court fails to make the
“express determination.” The inclusion of this clarifying
statement thus “serves to underscore the importance of the
‘express determination’ requirement.” Kelly, 908 F.2d at 1226.

The Kelly majority entirely failed to address the text of
Rule 54(b) and in the absence of a convincing alternative
interpretation of the rule, we are persuaded by the dissent’s
interpretation. Cf. Taylor v. F.D.I.C., 132 F.3d 753, 760 (D.C.

28
Cir. 1997) (discussing Kelly and noting that “[t]he majority . . .
never really answered the dissenters’ point that ‘express,’ the
Rule’s modifier of ‘determination,’ does not normally mean
‘implied’”). In short, we conclude that as its text makes plain,
Rule 54(b) requires that a district court make an “express”
determination that there is no just reason for delay in entry of a
final judgment. This provision means that the district court must
articulate in the Rule 54(b) order that it has made such a
determination.

We also find persuasive the Kelly dissent’s recitation of
the background of the 1946 amendments to the rule, which
added the “express” determination requirement. As the dissent
in Kelly noted, prior to 1946, “situations arose where district
courts made a piecemeal disposition of an action and entered
what the parties thought amounted to a judgment, although a
trial remained to be had on other claims. . . .” Kelly, 908 F.2d at
1223 (quoting 6 J. Moore, W. Taggart & J. Wicker, Moore’s
Federal Practice ¶ 54.01 [6] at 54-15 (2d ed. 1988)). “In the
interim the parties did not know their ultimate rights, and
accordingly took an appeal, thus putting the finality of the
partial judgment in question.” Id. The confusion, waste, and
expense to litigants that resulted from this uncertainty prompted
the addition of the certification requirement to Rule 54(b). See
Kelly, 908 F.2d at 1223. If we read Rule 54(b)’s “express”
determination requirement as requiring no more than that there
be sufficient evidence in the record from which a court of
appeals could infer that a district court made an “implied”
determination that there was no just reason for delay in entry of
a final judgment, we would vitiate the very intended effect of
the “express” determination requirement. On the other hand, as

29
the Kelly dissent observed, requiring strict compliance with
Rule 54(b) “avoid[s] protective, duplicative appeals and, most
importantly, . . . prevent[s] the harsh result of a party’s losing its
right to appeal because it was not aware that a final, appealable
judgment had been entered.” 908 F.2d at 1227.

Our interpretation of Rule 54(b) heeds the Supreme
Court’s direction that we give federal rules their plain meaning.
See Bus. Guides, 498 U.S. at 540, 111 S.Ct. at 928. Moreover,
adherence to the rule’s text has the added virtue of maintaining
the proper respective roles of the district courts and the courts of
appeals in considering Rule 54(b) orders. If we regarded a
judgment as final in the absence of some statement indicating
that the district court has determined that there is no just reason
for delay in its entry we would have to assume — without any
supporting evidence — that the district court has considered the
equitable factors that must inform a Rule 54(b) certification.
See Curtiss-Wright, 446 U.S. at 7-8, 100 S.Ct. at 1464-65. At a
minimum, in such a scenario it would be quite challenging to
review the district court’s Rule 54(b) certification for an abuse
of discretion. See Fed. Home Loan Mortg. Corp. v. Scottsdale
Ins. Co., 316 F.3d 431, 440 (3d Cir. 2003) (“We review a
district court’s Rule 54(b) certification decision for an abuse of
discretion.”). After all, how does a court of appeals know if a
district court has abused its discretion if it does not know the
basis for its exercise of discretion?

The Court of Appeals for the Eighth Circuit recognized
this point with respect to a review for an abuse of discretion in
Mooney v. Frierdich, 784 F.2d 875, 876 (8th Cir. 1986) (per
curiam), where it said that in determining “whether there was an

30
abuse of discretion” in reviewing a Rule 54(b) certification “if
no reasons are furnished as to why that discretion was exercised,
[its] judgment as to the propriety of certification is necessarily
speculative.” In reality, if courts of appeals scrutinize the record
in an attempt to glean whether the district court impliedly
fulfilled its obligation to make an “express” determination under
Rule 54(b) they will come dangerously close to making the
determination themselves, thereby appropriating the district
courts’ “dispatcher” function under the rule. See Curtiss-Wright
Corp., 446 U.S. at 8, 100 S.Ct. at 1465. “Discretion to
determine whether an immediate appeal should be allowed is,
‘with good reason, vested by the rule primarily in the discretion
of the District Court as the one most likely to be familiar with
the case and with any justifiable reasons for delay.’” New York
Football Giants, Inc. v. Comm’r, 349 F.3d 102, 106 (3d Cir.
2003) (quoting Sears, Roebuck & Co., 351 U.S. at 437, 76 S.Ct.
at 900-01).

Although we conclude that Rule 54(b) requires an
“express” determination, we do not believe that the rule requires
that a district court employ the talismanic phrase “there is no
just reason for delay” prior to entry of a final judgment.
Undoubtedly, such a rigid requirement has the virtue of clarity
and predictability in application and we suggest that when the
language of the rule reflects a district court’s conclusion that the
court use it. In this regard, we point out that the further a district
court departs from the language of Rule 54(b) the greater the
possibility that a court of appeals may conclude that the district
court has not satisfied the requirements of the rule. Yet Rule
54(b)’s text does not require the court to employ those precise
words; it simply requires it to employ — expressly — some set

31
of words conveying that it has made the Rule 54(b)
determination. See Kelly, 908 F.2d at 1222 (“[A]t least
arguably, since the rule does not specifically require incantation
of the seven very words [‘there is no just reason for delay’], they
could be paraphrased, provided that the court actually states that
it had made that required determination.”) (Smith, J.,
dissenting). Nor do we believe that we ought to impose such a
per se rule on the district courts.

Of course, a district court most easily will satisfy Rule
54(b) by stating as we have suggested that it has determined that
“there is no just reason for delay.” But it also may satisfy Rule
54(b) by paraphrasing that statement or using other language of
“indisputably similar effect,” Berckeley I, 259 F.3d at 141, in its
order that plainly reflects that it has determined that there is no
just reason for delay. As way of illustrative example, if a district
court expressly states that it could ascertain “no just cause for
delaying entry of final judgment” as to certain claims or parties,
or that it has determined that there is “no legitimate reason for
delaying entry of final judgment,” such statements would reflect
the district court’s determination that there is no just reason for
delay. Allowing paraphrases of “no just reason for delay” to
satisfy Rule 54(b) strikes the appropriate balance between
adherence to Rule 54(b)’s strict requirements and a recognition
that a district court can set forth an express determination that
there is no just reason for delay without using those exact words.
In such a situation, Rule 54(b) is satisfied.

Significantly, it should be clear from the precedents we
have cited that we do not impose today a new or onerous
requirement on the district courts and this opinion should not

32
come as a surprise. Rule 54(b)’s “express” determination
requirement has been facially evident from the rule’s text since
its amendment in 1946 added the requirement. Yet it also is
evident that notwithstanding the numerous cases discussing the
rule it is not understood clearly and is sometimes misapplied.
As this case well demonstrates, this misapplication causes
considerable delay and undoubtedly leads to the parties being
required to bear additional costs unless, of course, attorneys
absorb these costs.

This problem in the application of Rule 54(b) persists
even though in imposing the “statement of reasons” requirement
in Allis-Chalmers over 30 years ago we clearly proceeded from
the belief that Rule 54(b) requires that a district court explicitly
set forth its determination that there is no just reason for delay.
See Allis-Chalmers, 521 F.2d at 364 (“A proper exercise of
discretion under Rule 54(b) requires the district court to do more
than just recite the 54(b) formula of ‘no just reason for delay.’”)
(emphasis added). Indeed, Allis-Chalmers sets upon the district
courts a far more significant burden, and, if a district court
complies with it and sets forth a statement of reasons for its Rule
54(b) certification, it is a near certainty that the order will
contain, by virtue of that discussion, an express determination
that there is no just reason for delay.

Though we realize that our disposition of this appeal will
cause some efforts expended on this appeal to have been wasted
and surely will cause delay in the disposition of this case, we
may not ignore the plain requirements of Rule 54(b) to satisfy
our desire to avoid this waste and delay. The absence of an
“express” determination is a jurisdictional defect, which we may

33
not overlook no matter how significantly the judicial equities
may weigh in favor hearing the appeal. See McBeth v. Himes,
598 F.3d 708, 722 (10th Cir. 2010) (“[E]fficiency for the parties
and the court can[not] provide a reason to overlook a
jurisdictional deficiency caused by a failure to comply with Rule
54(b).”).

In summary, today we make clear that Rule 54(b) means
what it says: a district court may certify a judgment under Rule
54(b) only after concluding “that there is no just reason for
delay.” A Rule 54(b) order will be valid and provide this Court
with jurisdiction over the appeal only if it expressly sets forth
that determination, though not necessarily in those precise
words. The District Court here failed to state in its order that it
had determined that there was “no just reason for delay” and it
failed to use any other language of indisputably similar effect.
Accordingly, the order did not properly certify the judgment
under Rule 54(b). Without a valid Rule 54(b) judgment, we do
not have jurisdiction over this appeal as it resolved fewer than
all the claims of all the parties, and thus, it is not “final” within
the meaning of 28 U.S.C. § 1291. See Hill v. City of Scranton,
411 F.3d 118, 124 (3d Cir. 2005) (“Without a valid Rule 54(b)
order, we do not ordinarily have appellate jurisdiction over a
district court order that resolves fewer than all the claims of all
the parties in a single action because such orders do not
constitute ‘final decisions’ per 28 U.S.C. § 1291.”) (citation
omitted). Accordingly, we must dismiss this appeal for lack of
jurisdiction. 9

9
At the conclusion of argument on this appeal Elliott made an

34
 VI. CONCLUSION

For the foregoing reasons, we will dismiss this appeal for
lack of jurisdiction. Our dismissal is without prejudice; thus the
parties may seek from the District Court a proper certification
under Rule 54(b) and if it is granted Elliott may appeal once
more. In the event that the parties choose to pursue that course,
the parties may seek leave from this Court to rely on the
extensive briefs and supporting materials that they already have
supplied to this Court attendant to the present appeal to be
supplemented by additional materials evidencing the
proceedings in the District Court after this dismissal. If there is
another appeal, the Clerk of the Court should reassign the matter
to a new panel in accordance with this Court’s procedure. The
parties will bear their own costs on this appeal.

oral motion to which there was no objection to remand the case
to the District Court so that the parties could make an
application to that Court for entry of a Rule 54(b) judgment in
proper form. We deny this motion as it was untimely. We
believe that our Clerk’s order of July 12, 2011, should have
alerted the parties as to our want of jurisdiction and caused them
to take corrective steps at that time.

35