Nichols v. The Cadle Company

                  UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                             

No. 96-1777

     SARGENT D. NICHOLS, INDIVIDUALLY AND AS HE IS TRUSTEE OF

              ANDOVER NORTHWAY REALTY TRUST, ET AL.,

                     Plaintiffs, Appellants,

                                v.

                          THE CADLE CO.,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. William G. Young, U.S. District Judge]
                                                                

                                             

                              Before

                      Selya, Circuit Judge,
                                                    

                  Bownes, Senior Circuit Judge,
                                                        

                    and Boudin, Circuit Judge.
                                                       

                                             

     Gilbert R. Hoy, Jr. for appellants.
                                  
     Alvin  S. Nathanson,  with whom  Shannon M.  Fitzpatrick and
                                                                       
Nathanson & Goldberg, PC were on brief, for appellee.
                                  

                                             

                        December 19, 1996

                                             


          Per Curiam.   This  appeal illustrates once  again that
                    Per Curiam.
                              

the  overly generous  use of  Fed. R.  Civ. P.  54(b) by  a well-

intentioned district  judge can create a  minefield for litigants

and  appellate courts alike.  Though the appeal itself amounts to

an exercise in futility, see infra, it should serve as a reminder
                                            

that haste  makes waste.   There are often  untoward consequences

when  judges  too readily  acquiesce  in the  suggested  entry of

"partial" final judgments.

          The  basic  procedural  facts   are  undisputed.    The

plaintiffs  owned  valuable  commercial  real estate  located  in

Peabody,  Massachusetts.  After  their original  lender plummeted

into receivership,  the defendant Cadle Co.  (Cadle) acquired the

mortgage  on  the property  from  the  Federal Deposit  Insurance

Corporation.  Inasmuch as the mortgage note was in arrears, Cadle

foreclosed on the property and took possession of it.

          The plaintiffs  sued, claiming inter alia  breach of an
                                                             

agreement  to  forbear  (count  1),  wrongful  interference  with

economic  relationships (count  2), fraud  (count 3),  and unfair

trade  practices in  violation of  Mass. Gen.  L. ch.  93A,    11

(count 5).   The plaintiffs  also sought specific  performance of

the  supposed  forbearance  agreement (count  4)  and declaratory

relief (count 6).   All six counts implicated the  mortgage note,

the foreclosure, and Cadle's conduct  in respect thereto.   Cadle

denied the plaintiffs' allegations, pointed to the relatively low

price   that   the  property   had   brought   at  auction,   and

counterclaimed  for the deficiency that it thought was due on the

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mortgage note.

          After discovery had been  conducted, the district court

granted  partial summary judgment in Cadle's  favor.  This ruling

dispatched counts  1, 2, 3,  4, and 6  of the complaint,  leaving

count  5  and  Cadle's   counterclaims  unaffected.    The  court

thereafter  certified the  judgment as  final under  Rule 54(b).1

Although the  court made a rote recitation that there was no just

reason  to delay the entry of judgment, it failed to substantiate

that  conclusion.     Using  the  district   court's  Rule  54(b)

certificate  as  a springboard,  the  plaintiffs  prosecuted this

appeal.

          It is trite, but  true, that piecemeal appellate review

invites  mischief.   Because  the    practice  poses  a  host  of

potential problems  we  have warned,  time and  again, that  Rule

54(b)  should be  used sparingly.   See, e.g.,  Consolidated Rail
                                                                           

Corp.  v. Fore River Ry. Co., 861  F.2d 322, 325 (1st Cir. 1988);
                                      

Spiegel v.  Trustees of Tufts  Coll., 843 F.2d  38, 43  (1st Cir.
                                              

1988);  Santa Maria v. Owens-Ill.,  Inc., 808 F.2d  848, 854 (1st
                                                  

Cir. 1986).  We have also admonished that a district court intent
                    
                              

     1Ordinarily,  a  judgment is  final  (and,  thus, appealable
under  28 U.S.C.   1291)  only if it  conclusively determines all
claims of  all parties to  the action.   See generally  Catlin v.
                                                                        
United States, 324  U.S. 229,  233 (1945) (stating  that a  final
                       
decision  generally is  one  which "ends  the  litigation on  the
merits  and leaves nothing  for the court  to do but  execute the
judgment").  Rule 54(b) limns an exception to this principle.  It
provides in relevant part:   "When more than one claim for relief
is presented in an action . . . the court may direct the entry of
a final  judgment as to  one or  more but fewer  than all of  the
claims or parties . . . upon an express determination  that there
is no just reason for delay and upon an express direction for the
entry of [such a] judgment. . . ."

                                3


upon setting the stage for the fragmentation of appellate  review

must explain the need for entering an earlier-than-usual judgment

  at least in cases where the explanation is not obvious from the

record.  See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39
                                                          

(1st  Cir. 1991);  Spiegel,  843 F.2d  at 43  &  n.4; Pahlavi  v.
                                                                       

Palandjian, 744 F.2d 902, 905 (1st Cir. 1984).
                    

          In  this  instance  the district  court  volunteered no

meaningful  explanation for  its  determination  that a  judgment

should  enter even though a substantial part of the case remained

untried,2 and  no good reason for the  certification is apparent.

The  claims adjudicated  on  summary judgment  and certified  for

appeal are inextricably intertwined  with the claims left pending

in the district court, and the parties to both sets of claims are

precisely the  same.  As we predicted in Spiegel, 843 F.2d at 44,
                                                          

"[i]t will be a  rare case where Rule 54(b)  can appropriately be

applied when  the contestants  on appeal  remain, simultaneously,

contestants below."   This  case falls within  the generality  of

that  prediction,  not within  the  long-odds  exception to  it.3
                    
                              

     2The district court did note in its certificate that all the
counts  on  which  it   granted  summary  judgment  involved  the
propriety of the foreclosure.   But that tells us  very little as
the  claims that remained likewise involved  the propriety of the
foreclosure.     The  court   also  noted  the   desirability  of
discharging the lis  pendens that the  plaintiffs had filed,  but
                                      
gave no  reason to suspect  that any particular  urgency attended
this discharge.

     3This case offers a testimonial to the wisdom that underlies
the Spiegel doctrine.   After the appeal had been  fully briefed,
                     
the  district court conducted a trial on the remaining claims and
counterclaims.   Cadle prevailed  across the board.   Immediately
thereafter  it  moved to  dismiss the  appeal  on grounds  of res
judicata and collateral  estoppel.   We do not  reach the  issues

                                4


Finally,  the   record  reflects  no  special   circumstances  or

overriding equities that might counsel  in favor of permitting an

immediate appeal from a plainly interlocutory order.

          We   need  go  no  further.     Since  the  Rule  54(b)

certificate  in  this case  was  improvidently  granted, we  lack

appellate jurisdiction.   See Consolidated Rail, 861 F.2d at 326;
                                                         

Spiegel, 843 F.2d at 46.
                 

          The appeal  is dismissed without prejudice  for want of
                                                                           

appellate jurisdiction.  All parties shall bear their own costs.
                                                                         

                    
                              

raised  in the motion to dismiss, but its content illuminates the
Serbonian  bog into  which  appellate courts  can  be plunged  by
relaxed  application of the  rigorous standards that  ought to be
associated with Rule 54(b) certifications.

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