
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1878                                  GEORGE E. KERSEY,                                Plaintiff, Appellant,                                          v.                       DENNISON MANUFACTURING COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________        No. 92-1932                                  GEORGE E. KERSEY,                                Plaintiff, Appellant,                                          v.                       DENNISON MANUFACTURING COMPANY, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Cyr and Boudin,                                   Circuit Judges.                                   ______________                                 ____________________             George E. Kersey, pro se, for appellant.             ________________  ___ __             Alan  D. Rose with whom  James N. Boudreau,  Marilee Denelle, and             _____________            _________________   _______________        Nutter, McClennen & Fish were on brief for appellees.        ________________________                                 ____________________                                   August 24, 1993                                 ____________________                    CYR, Circuit Judge.   Appellant  George E. Kersey chal-                    CYR, Circuit Judge.                         _____________          lenges  a partial summary judgment, certified pursuant to Fed. R.          Civ. P.  54(b), dismissing various claims  against Dennison Manu-          facturing Co.,  Inc. ("Dennison") and four of  its officers ("the          individual defendants") for  breach of contract, age  discrimina-          tion, defamation,  invasion  of privacy,  and  interference  with          contractual  relations.  We dismiss the appeal for lack of appel-          late jurisdiction.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________                    Appellant  Kersey, a  patent attorney,  performed legal          services  for Dennison from 1966 to 1989.  The defendants contend          that Kersey acted as retained counsel, or as an independent legal          consultant,  providing  advice  to  Dennison on  patent  matters.          Kersey  depicts himself as the  de facto "manager"  of the patent                                          __ _____          department,  and a  Dennison  "employee."   Whatever their  legal          relationship, Kersey  parted company with Dennison  in 1989 under          less than amicable circumstances.1                                        ____________________               1The lawsuit arose out  of Dennison's decision to reorganize          its patent department.  In 1988, Dennison's general counsel asked          Arthur  B.  Moore, a  former  "patent attorney  trainee"  who was          appointed Dennison's  chief patent  counsel, to prepare  a "white          paper" critiquing  the organization and efficiency  of the patent          department during Kersey's tenure.   Preliminary and final drafts          of the Moore report contained criticism of Kersey's  past perfor-          mance,  which Kersey  considered  defamatory.   In January  1989,          Dennison sent written  notice to Kersey,  offering to retain  his                                          3                    In September  1989, Kersey brought the  present lawsuit          against Dennison for breach of  an employment contract (Count 1),          quantum  meruit (Count 7), and refusal to pay for services (Count          8);  against  Dennison  and  the individual  defendants  for  age          discrimination  (Counts  2  and  3), defamation  (Count  4),  and          invasion of  privacy (Count 5); and against the individual defen-          dants  for intentional interference with advantageous contractual          relations  (Count 6).    Dennison  counterclaimed, alleging  that          Kersey committed eight acts of  legal malpractice while acting as          Dennison's  attorney between  1973 and  1988.   Kersey interposed          eleven  "cross-claims"2  against  Dennison  and   the  individual          defendants, alleging malicious and retaliatory prosecution of the          malpractice counterclaims, as well as malicious interference with          Kersey's future employment prospects.                    On March 5,  1992, the  district court  granted summary          judgment for defendants on  Counts 1-6 of the  complaint, leaving          Counts 7 and 8 for later adjudication.  The court denied Kersey's          motion  for summary judgment  on Dennison's  malpractice counter-          claims.  In June 1992, after Kersey's eleven "cross-claims"  were          dismissed  for failure to prosecute,  see Fed. R.  Civ. P. 41(b),                                                ___                                        ____________________          services at an  increased hourly  rate on the  condition that  he          decrease  his  billable hours.    Kersey  contends, and  Dennison          denies,  that this  constituted a  constructive "termination"  of          Kersey's employment.               2Kersey  incorrectly designated his  eleven counterclaims as          "cross-claims";   technically  speaking,  a  cross-claim  can  be          interposed only against co-parties.   We nonetheless use Kersey's          designation  for ease  of reference;  namely, to  distinquish his          counterclaims from Dennison's malpractice counterclaims.                                          4          the district court certified defendants' partial summary judgment          pursuant  to Fed.  R.  Civ. P.  54(b),3  denied Kersey's  ensuing          postjudgment  motions  for  reconsideration, and  stayed  further          trial court proceedings pending appeal.                                          II                                          II                                      DISCUSSION                                      DISCUSSION                                      __________                    Kersey's appeal founders on two jurisdictional defects,          one  advanced by  the  defendants, the  other  by Kersey;  either          defect warrants dismissal of the present appeal.  Nonetheless, we          address  both jurisdictional challenges,  since any future appeal                                                              ______          by  Kersey from  the  adverse partial  summary judgment  would be                                        ____________________               3Civil Rule 54(b) provides:                    When more  than one claim for  relief is pre-                    sented  in an  action,  whether  as a  claim,                    counterclaim,  cross-claim,   or  third-party                    claim, or when multiple parties are involved,                    the  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  was no just  reason                    for delay  and upon an express  direction for                    the  entry of  judgment.   In the  absence of                    such determination and  direction, any  order                                                       ___  _____                    or other form  of decision, however designat-                    ed,  which  adjudicates  fewer  than  all the                         _____  ___________  _____  ____  ___ ___                    claims or the rights and liabilities of fewer                    ______                    than all the parties shall not terminate  the                                         _____ ___ _________  ___                    action as  to any  of the claims  or parties,                    ______ __  __ ___  __ ___ ______  __ _______                    and the  order or  other form of  decision is                    subject to revision  at any  time before  the                    entry of judgment adjudicating all the claims                    and the  rights  and liabilities  of all  the                    parties.          Fed. R. Civ. P. 54(b) (emphasis added).                                          5          foreclosed were defendants'  present jurisdictional challenge  to          prevail.          A.   Notices of Appeal          A.   Notices of Appeal               _________________                    Defendants insist that Kersey's appeal, and with it his          challenge to  the Rule 54(b) certification, is  precluded by Fed.          R. App. P. 4(a)(4), which provides:                    If  a timely  motion .  . .  is filed  in the                    district  court by any party . . . under Rule                    59 to alter or  amend the judgment . .  . the                    time  for appeal  for all  parties shall  run                    from  the entry  of the  order denying  a new                    trial or granting  or denying any other  such                    motion.  A notice  of appeal filed before the                             _ ______  __ ______ _____ ______ ___                    disposition of any of the above motions shall                    ___________ __ ___ __ ___ _____ _______ _____                    have no effect.  A new  notice of appeal must                    ____ __ ______   _ ___  ______ __ ______ ____                    be filed within  the prescribed time measured                    __ _____                    from the entry of  the order disposing of the                    motion as provided above.          Fed. R. App. P. 4(a)(4) (emphasis added).4  We agree.                      Kersey's first motion for  reconsideration was filed on          July 13, 1992.  See Rodriguez v. Banco Central, 790 F.2d 172, 176                          ___ _________    _____________          (1st  Cir. 1986) (for purposes of FRAP 4(a)(4), motion for recon-          sideration may be considered a  motion to alter and amend).   His          notices of appeal    filed on July 13 and July 22    both preced-          ed the  district court's August 5  order denying his  motions for                                        ____________________               4Appellate Rule 4(a)(4), which has been described as a "trap          for the unwary," Averhart  v. Arrendondo, 773 F.2d 919,  920 (7th                           ________     __________          Cir.  1985), was intended  to prevent  a would-be  appellant from          spinning "wheels" in the court of appeals while the trial court's          "wheels" remain  in motion, lest the  trial court's reexamination          of its own  ruling moot a ripened appeal, or  the appellate court          be deprived of the  benefit of the district  court's reassessment          or  narrowing of  the  issues to  be  confronted on  appeal.  See                                                                        ___          McCowan v. Sears, Roebuck  & Co., 908 F.2d 1099,  1103 (2d Cir.),          _______    _____________________          cert. denied, 498 U.S. 897 (1990).          _____ ______                                          6          reconsideration.    Accordingly,  both  notices  of  appeal  were          ineffectual under Fed. R.  App. P. 4(a).  See Griggs v. Provident                                                    ___ ______    _________          Consumer Discount Co.,  459 U.S.  56, 61 (1982)  (holding that  a          _____________________          notice of appeal filed  prior to the disposition of  a Rule 59(e)          motion  is "nullified"); Willhauck  v. Halpin, 919  F.2d 788, 792                                   _________     ______          (1st Cir.  1990) (absent compliance with  FRAP 4(a)(4), premature          notice  of appeal  "simply self-destructs")  (citations omitted);          see also Wagoner v. Wagoner, 938 F.2d 1120, 1121 (10th Cir. 1991)          ___ ____ _______    _______          (dismissing appeal  from summary  judgment certified  pursuant to          Rule  54(b), due to failure to replace premature notice of appeal          per FRAP 4(a)(4)).5                    The defendants  further insist that  Kersey's unwitting          failure to replace the premature notice of appeal, as required by          Fed. R. App P.  4(a)(4), has cost him not only the battle but the          war,  since the  Rule 54(b)-certified  judgment became  final and          nonappealable thirty days from  August 5, 1992, when the district          court denied his Rule 59(e) motions.  See Willhauck,  919 F.2d at                                                ___ _________          792 ("In  short, it is  as if no  notice of  appeal was filed  at          all.").  Fortunately for  Kersey, two jurisdictional facts defeat          defendants' argument.                    First, the  Rule 54(b)-certified  judgment of June  24,          1992 was never entered on the district court docket in accordance          with Fed. R.  Civ. P. 58 and 79(a).  See Willhauck v. Halpin, 953                                               ___ _________    ______          F.2d 689, 701 (1st Cir. 1991) (holding that the certifying "court                                        ____________________               5Fed. R.  App. P. 2 does  not empower a court  of appeals to          give effect to a premature notice of appeal under Fed. R. App. P.          4(a)(4).  See Griggs, 459 U.S. at 60.                    ___ ______                                          7          must make an  'express direction  for the entry  of judgment'  in          conformity with Fed. R. Civ. P. 58 and 79(a)").  Second, notwith-          standing the fact that the district court "announced"  its denial          of  Kersey's Rule 59(e) motions in the August 5 margin order, see                                                                        ___          Acosta v. Louisiana Dep't of Health and Human Resources, 478 U.S.          ______    _____________________________________________          251, 253-54 (1986) (rejecting  view that Rule 59 motion  is "dis-          posed  of," for FRAP 4(a)(4)  purposes, at the  time the district          court "announces"  its  denial of  the  motion rather  than  upon          formal entry of the order of denial), the margin order  was never          transposed to a separate document, as  mandated by Rule 58.   See                                                                        ___          Fed. R. App. P.  4(a)(7) ("A judgment or order is  entered within          the meaning of this  Rule 4(a) when  it is entered in  compliance          with Rules  58 and  79(a) of  the Federal  Rules of Civil  Proce-          dure."); Fiore v. Washington County Community Mental Health Ctr.,                   _____    ______________________________________________          960 F.2d 229, 233 (1st Cir. 1992) (en banc) (postjudgment motions          are subject to "separate document" rule).                    Accordingly, the time  periods within  which an  appeal          could  be taken from the June 24 certified judgment, and from the          August 5  margin  order  denying  the  Rule  59(e)   postjudgment          motions,6  have  never  commenced.   See  Bankers  Trust  Co.  v.                                               ___  ___________________          Mallis,  435 U.S. 381, 386  (1978) (per curiam)  (noting that the          ______          "separate  document" rule  should always  be invoked  "to prevent          loss of  the right  of appeal, not  to facilitate  loss [of  that                                        ____________________               6See  Fiore, 960 F.2d at  232-33 (noting that,  in the First                ___  _____          Circuit, "denials of . . .  post-judgment motions challenging the          judgment  are appealable separately from the appeal of the under-                                   __________          lying judgment") (emphasis added).                                          8          right]");  Fiore, 960 F.2d at 235.   Thus, were we to order a pro                     _____                                              ___          forma remand, Kersey could attempt to persuade the district court          _____          to  reconsider its  Rule  54(b) certification  or the  underlying          summary  judgment, see Fed. R. Civ. P. 54(b) ("the order or . . .                             ___          decision  is subject to  revision at any  time . . . ."); failing          that, he  could file  a timely  notice of appeal  as soon  as the          extant orders were entered on the docket.                    One course  of action  in these circumstances  would be          simply to dismiss the appeal and proceed no further.7   But since                                        ____________________               7FRAP 4(a)(4) applies only to  a "timely" motion under Civil          Rule 59(e), which requires that a motion to alter or amend "shall          be served not  later than 10 days after entry  of judgment."  Had          the certified judgment been entered in compliance with Rule 58 on          June 24, Kersey's  Rule 59(e) motions would have been "untimely,"          see Feinstein  v. Moses, 951  F.2d 16,  19 (1st Cir.  1991) (Rule          ___ _________     _____          59's ten-day deadline is "mandatory," and the  district court has          no discretion to waive deadline), since Kersey apparently did not          serve  them on defendants until July 13, 1992, more than ten days          _____          after the presumed date of entry  of the judgment.  Kersey's  two          notices of appeal would have remained intact.  See Boston Car Co.                                                         ___ ______________          v. Acura Auto.  Div., 971 F.2d  811, 814-15  (1st Cir. 1992)  (an             _________________          untimely  Rule  59  motion  should  not  trigger  "nullification"          ________          effects  of FRAP 4(a)(4)); Britt  v. Whitmire, 956  F.2d 509, 515                                     _____     ________          (5th Cir. 1992) (same).               The delay in entering  the Rule 54(b)-certified judgment and          the  order  denying the  Rule  59(e) motions  regenerates  a FRAP          4(a)(4)  problem.   Because  the June  24  judgment has  not  yet          entered, Kersey's Rule 59(e) motions, though decidedly premature,          were  not "untimely" under Rule  59(e)    that  is, they were not          served  later than  10 days  after  entry of  judgment.   See  11                                       _____  _____ __  ________    ___          Charles  Wright & Arthur Miller, Federal Practice and Procedure                                             ______________________________          2812, at 81-82, 81 n.44 (1973 & Supp. 1993) (Rule 59(e) sets only          an outer-limit deadline, so that an early motion for reconsidera-          tion can still  be characterized  as a valid  Rule 59(e)  motion,          even if filed before  formal entry of judgment).   Moreover, FRAP                        ______          4(a)(2),  which  normally gives  reach-back  effect  to premature          notices of  appeal filed between  the announcement of  a decision          and  the entry of judgment,  is expressly made  inapplicable as a          cure for  FRAP 4(a)(4)  defects.   See  Fed. R.  App. P.  4(a)(2)                                             ___          ("Except as otherwise provided in (a)(4) of this Rule 4 . . . ."-          ); Acosta, 478 U.S. at 253-54.             ______                                          9          a  pro forma remand,  followed by a  new notice of  appeal, would             ___ _____          advance neither the  interests of the parties  nor sound judicial          administration, we address the other  jurisdictional flaw infect-          ing Kersey's  appeal.  See  Fiore, 960 F.2d  at 235 (noting  that                                 ___  _____          strict  adherence to policy  of remanding for  correction of FRAP          4(a)(4)  defect would compel parties to go through the motions by          refiling a timely notice of appeal on remand, but that "[c]ausing          wheels to spin for no practical  purpose is . . . contrary to the          Supreme Court's handling of Rule 58.") (citing Bankers Trust, 435                                                         _____________          U.S. at 385).          B.   Rule 54(b) Certification          B.   Rule 54(b) Certification               ________________________                    We lack  appellate jurisdiction  to review  the partial          summary judgment absent  a proper Rule 54(b)  certification.  See                                                                        ___          Pahlavi  v. Palandjian,  744 F.2d  902, 903  n.2 (1st  Cir. 1984)          _______     __________          (citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)-                  ____________________    ______          ).  Even  were we to  assume arguendo  that the dismissed  claims                                       ________          (Counts 1-6)  in  the  present case  qualified  as  "final,"  see                                                                        ___          Consolidated Rail Corp. v.  Fore River Ry. Co., 861 F.2d 322, 325          _______________________     __________________          (1st Cir. 1988), the Rule 54(b) certification would falter on the          "interrelationship" prong  of the  discretionary test set  out in          Spiegel v. Trustees  of Tufts College, 843 F.2d 38,  44 (1st Cir.          _______    __________________________                                        ____________________               On the  other  hand, Griggs  and Acosta  offer only  limited                                    ______      ______          jurisdictional guidance, since appellants in those cases could no          longer file replacement notices of appeal because final judgments          had  entered  during their  appeals and  the  time for  filing an          effectual notice of appeal had long  since elapsed.  Accordingly,          despite  the technical requirements of FRAP  4(a)(4), we are left          to fashion a course  best suited to the interests  of the parties          and the interests of judicial economy.                                          10          1988).  The Spiegel test requires the court of appeals to scruti-                      _______          nize (1) the district court's evaluation of any interrelationship          or overlap between  the legal  and factual issues  raised by  the          dismissed  and  pending  claims,  and (2)  the  district  court's          assessment of the equities for  and against an immediate  appeal.          In cases where the  district court has provided a  written state-          ment of the  grounds for  certification, we  normally accord  its          discretionary decision  "substantial  deference," id.,  and  will                                                            ___          dismiss for  lack of appellate  jurisdiction only if  the court's          certification was "clearly  unreasonable."  Curtiss-Wright  Corp.                                                      _____________________          v. General Elec. Co., 446 U.S. 1, 10 (1980).             _________________                    In  conjunction with  the  district court's  Rule 54(b)          certification, Kersey's "cross-claims" were dismissed for lack of          prosecution.    The  court  based the  dismissal  on  defendants'          allegation that Kersey neither conducted discovery on the "cross-          claims" nor complied with the pretrial  order requiring that each          claim  he intended to pursue at  trial be specified in his "trial          document."   Nevertheless, the  record flatly  contradicts defen-          dants' allegation  that Kersey  failed to identify  the dismissed          "cross-claims" in his February 5, 1992 "trial document."8                                        ____________________               8In    A-8 of  the "trial document,"  Kersey fully described          his  "cross-claims"  for  "malicious  abuse  of  civil  process,"          alleging that Dennison's eight counterclaims were brought in "bad          faith,"  and  that Kersey  had been  "damaged  in his  ability to          obtain future legal and/or patent work."  This language precisely          mirrors  Kersey's dismissed  "cross-claims,"  which alleged  that          Dennison and  the individual  defendants asserted unfounded  mal-          practice claims in retaliation for his  lawsuit against them, and          to harm Kersey's future employment prospects.  Kersey even listed             as  a proposed trial exhibit     a January 25,  1990 letter in                   ________ _____ _______          which  opposing counsel made the  alleged threat to prosecute the                                          11                    Involuntary dismissal  of a  claim pursuant to  Fed. R.          Civ. P. 41(b)  for failure  to prosecute is  reviewable only  for          "abuse  of discretion."    See HMG  Property  Investors, Inc.  v.                                     ___ ______________________________          Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916 (1st Cir. 1988).          _____________________________          Nonetheless, since  dismissal is among the  harsher sanctions and          contravenes  the longstanding policy favoring dispositions on the          merits, it must be  cautiously invoked.  See  Velazquez-Rivera v.                                                   ___  ________________          Sea-Land  Serv.,  Inc., 920  F.2d  1072,  1075  (1st Cir.  1990);          ______________________          Figueroa-Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir. 1990).   As          _____________    _______          the  central  allegation underpinning  the  Rule  41(b) dismissal          order in  this case was  unfounded,9 the dismissals  cannot stand          and, consequently, the district court's Rule 54(b)  certification          is undermined.  See Serrano-Perez v. FMC Corp., 985 F.2d 625, 628                          ___ _____________    _________          (1st  Cir. 1993) ("abuse  of discretion" occurs  "when a relevant                                                            ____ _ ________          factor deserving  of significant weight is overlooked, or when an          ______ _________  __ ___________ ______ __ __________  __ ____ __          improper factor is accorded significant weight, or when the court          ________ ______ __ ________ ___________ ______          considers  the appropriate mix of factors, but commits a palpable          error of judgment in calibrating the decisional scales.") (empha-          sis added).10                                        ____________________          retaliatory counterclaims.               9Without more, a mere failure to conduct discovery would not          signal abandonment  of these "cross-claims," not  only because of          their inherent nature, but in  light of Kersey's stated intention          to try the "cross-claims."  See supra note 8.                                      ___ _____               10The  record  indicates  that  defendants  never  mentioned          Kersey's "cross-claims"  in their  initial motion for  Rule 54(b)          certification,  which the  district  court endorsed  on June  11,          1992.  Not  until Kersey  brought this omission  to the  district          court's attention did defendants  include a "dismissal" clause in          the proposed  form of  judgment signed by  the court on  June 24.                                          12                    In its  critical role  as the Rule  54(b) "dispatcher,"          Curtiss-Wright,  446 U.S. at 8, the district court is to consider          ______________          the  strong  judicial   policy  disfavoring  piecemeal  appellate          review, see Spiegel, 843 F.2d at 42; Pahlavi, 744 F.2d at 903, by                  ___ _______                  _______          carefully comparing  the dismissed and  the unadjudicated  claims          for indications  of substantial  overlap     to  ensure that  the          appellate  court is  not  confronted in  successive appeals  with          common  issues of  law  or fact,  to  the detriment  of  judicial          efficiency.  In the present  case, exhumation of Kersey's "cross-          claims" effectively reinstates the dispute between Kersey and the          individual defendants.  Rule 54(b) certification  is particularly          __________ __________          suspect "'when the contestants on appeal remain,  simultaneously,          contestants below.'"  Consolidated Rail, 861 F.2d at 326 (quoting                                _________________          Spiegel,  843 F.2d at 44);  Shrader v. Granninger,  870 F.2d 874,          _______                     _______    __________          878 (2d Cir. 1989).                    Count 4  of the  complaint alleges that  the defendants          published or adopted defamatory statements about Kersey's perfor-          mance  of legal  services for  Dennison; one  such statement  de-          scribes Kersey's "unfortunate habit of procrastination in  patent          prosecution."  Several malpractice counterclaims (e.g., Counts 2,                                                            ____          3, 7) also involve  allegations that Kersey mismanaged Dennison's                                        ____________________          Appellees argue, nevertheless, that  the Rule 54(b) certification          was proper even if the Rule 41(b) dismissals were improvident, on          the ground that the  dismissed claims all involved events  occur-          ring  before Kersey's  alleged  discharge,  while  the  dismissed                ______          "cross-claims" involved Dennison's  alleged retaliatory  decision          to institute  its counterclaims after Kersey  brought the present                                          _____          lawsuit.   As pointed out below,  however, defendants' contention          is untenable.  See infra at pp. 13-15.                         ___ _____                                          13          patent prosecutions and  appeals during the  period from 1973  to          1988.11   In his "cross-claims," Kersey  counters that Dennison's          malpractice  counterclaims  lacked a  "basis  in  fact" and  were          brought in "bad  faith," presumably either as post hoc justifica-                      __________                        ____ ___          tions for  terminating  Kersey, or  to coerce  settlement of  the          present lawsuit  by  impugning  "his  personal  and  professional          reputation."  See,  e.g., Beecy  v. Pucciarelli,  387 Mass.  589,                        ___   ____  _____     ___________          593,  441  N.E.2d  1035,  1038  (1982)  ("malicious  prosecution"          claimant  must  demonstrate  damages resulting  from  defendant's          prosecution, "with  malice and without probable  cause," and that          defendant's action was resolved in claimant's favor).                    On  appeal, the  defendants  urge that  their "procras-          tination" allegation against Kersey must be considered privileged          because  it  was made  in  furtherance  of Dennison's  legitimate          business requirements.  Defendants concede, nonetheless, that the          privilege would  be rendered inoperative under  Massachusetts law          were  Kersey to  show that  defendants recklessly  or maliciously                                                 __________     ___________          published the allegation.  See Bratt v. IBM Corp., 392 Mass. 508,                                     ___ _____    _________          513,  467 N.E.2d 126, 131  (1984).  Thus,  defendants' bad faith,          reckless disregard, and/or malice, form core allegations compris-          ing  the dismissed  defamation claim  and the  "cross-claims" for          malicious  prosecution, all  of which  allege reputational  harm.          These factual issues may well turn on the truth or falsity of the                                        ____________________               11For example, Dennison's  second counterclaim alleges  that          it lost  a 1988 patent case when  a federal district court denied          Kersey's "belated[]"  motion to  file proposed findings  of fact,          since "the [filing] deadline had long since passed."                                          14          malpractice charges, the timing  and extent of defendants' knowl-          edge of the  facts underlying their malpractice  charges, and any          evidence of ill motive.  These factual determinations bid fair to          form the essential focus of successive appeals, one in connection          with the dismissed defamation claim, and another  relating to the          "cross-claims" for malicious prosecution.   See Spiegel, 843 F.2d                                                      ___ _______          at 45 (dismissing  appeal from order  certified under Rule  54(b)          where "[t]he factual underpinnings of the adjudicated and unadju-          dicated counts are . . . inextricably intertwined"); Pahlavi, 744                                                               _______          F.2d at  904 (noting factual overlap between  claims and counter-          claims, presenting "a conflict  which seems destined to reappear"          in  a succeeding  appeal);  see also  Hogan v.  Consolidated Rail                                      ___ ____  _____     _________________          Corp.,  961 F.2d 1021, 1026 (2d Cir. 1992) (abjuring, as contrary          _____          to sound judicial administration, "piecemeal appeals that require          two (or more) three-judge panels to familiarize themselves with a          given case, instead of having the trial judge, who sits alone and          is  intimately familiar with the whole case, revisit a portion of          the case  if he or  she has erred  in part").   So substantial  a          prospect  of  contextual  overlap  between  dismissed  claims and          unadjudicated claims counsels strongly against Rule 54(b) certif-          ication.   See Continental Airlines,  Inc. v.  Goodyear Tire  and                     ___ ___________________________     __________________          Rubber  Co., 819 F.2d 1519, 1525 (9th Cir. 1987) (factual overlap          ___________          entails risk  that Rule  54(b)-certified judgment may  have unex-          pected res  judicata effect  on unadjudicated claims  yet pending                 ___  ________          before trial court).                                           15                    In  these circumstances, given the interlocking factual          issues common  to the improvidently dismissed  "cross-claims" and          the dismissed defamation claim,  the Rule 54(b) certification was          improper, especially  since there is no  compelling evidence that          the  equities  favor  early  appellate review  of  the  certified          judgment.  See Spiegel, 843 F.2d at 45 ("Where, as here, the dis-                     ___ _______          missed and  surviving claims are interlocking,  only 'unusual and                                                                _______          compelling circumstances . . . [can]  dictate[] entry of an early          __________          separate judgment' on the dismissed part of the case.") (emphasis          added) (citation  omitted).  Aside from  noting the unrelatedness          of  the dismissed  and unadjudicated  claims, the  district court          determination that there was "no just reason for delay" was based          primarily  on the  ground that  immediate appeal  of  the partial          summary  judgment  might avoid  two  separate  trials should  the          partial summary  judgment later be  vacated and remanded  for new          trial.  As noted, however, such a potential is rarely, if ever, a          self-sufficient  basis  for a  Rule 54(b)  certification, because          "[v]irtually  any interlocutory appeal  from a dispositive ruling          said  to  be erroneous  contains  the potential  for  requiring a          retrial." Id.                    ___                    The appeal is dismissed for lack of jurisdiction.   The                    ________________________________________________    ___          case is remanded  to the district  court for further  proceedings          _________________________________________________________________          consistent with this opinion; no costs.          ______________________________________                                          16
