                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA
____________________________________
                                     )
DETROIT INTERNATIONAL                )
BRIDGE COMPANY, et al.,              )
                                     )
            Plaintiffs,              )
                                     )
      v.                             )   Civil Action No. 10-476 (RMC)
                                     )
GOVERNMENT OF CANADA, et al.,        )
                                     )
            Defendants.              )
____________________________________ )

                                  MEMORANDUM OPINION

               Before the Court is Plaintiffs’ Request for a Rule 54(b) Judgment on the

Dismissal of Count IV of the Third Amended Complaint. See Notification [Dkt. 194]. Plaintiffs

request entry of final judgment on Count IV, which the Court dismissed and with respect to

which the Court denied Plaintiffs’ motion for reconsideration. Federal Defendants oppose the

motion, arguing that such an action would add procedural uncertainty to this complex litigation.

For the reasons stated below, the Court “expressly determines that there is no just reason for

delay,” Fed. R. Civ. P. 54(b), and will grant Plaintiffs’ motion.

                                   I.    BACKGROUND

               This case concerns the Ambassador Bridge, which spans the Detroit River

between Detroit, Michigan and Windsor, Ontario and carries more than one-quarter of the total

commercial traffic between the United States and Canada. The Bridge is privately owned by the

Detroit International Bridge Company (DIBC) and its wholly-owned subsidiary, the Canadian

Transit Company, which collect toll revenue for Bridge maintenance and profit. However, the

Ambassador Bridge is more than eighty years old. Its owners want to use private money to

construct a Twin Span immediately adjacent to the existing Bridge to service customers while
                                                 1
maintenance work is performed on the Ambassador Bridge. However, a cross-border partnership

of government entities has proposed the construction of a new publicly-owned bridge, the

NITC/DRIC, 1 which would compete with the Ambassador Bridge and possibly destroy the

financial basis for the Twin Span.

               In its campaign to build a Twin Span, DIBC has sued in the United States and in

Canada. The Court refers the reader to its earlier opinions 2 and will not belabor this case’s

history here. As relevant to this Order, the Court granted the Motion to Dismiss Count IV, 3 Dkt.

92, entered judgment in favor of the United States Coast Guard on Count IV of the Third

Amended Complaint, and denied Plaintiffs’ Cross-Motion for Summary Judgment on Count IV,

Dkt. 96. See Op. [Dkt. 162]; Order [Dkt. 163]. The Court denied Plaintiffs’ motion for

reconsideration. See Order [Dkt. 193]. Plaintiffs now move for an order entering final judgment

on Count IV under Rule 54(b). 4




1
 NITC/DRIC (pronounced Nit-sy Drick) stands for New International Trade Crossing/Detroit
River International Crossing, which are the names given by Canada and Michigan for the
proposed public bridge.
2
 Opinion dated 5/13/11 [Dkt. 43]; Opinion dated 12/1/11 [Dkt. 55]; Opinion dated 5/30/14
[Dkt. 162]; Order dated 12/17/14 [Dkt. 193].
3
  Count IV alleges that the United States Coast Guard was arbitrary and capricious and violated
the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, in delaying and failing to issue a
navigational permit for the Twin Span. See Third Am. Compl. ¶¶ 325–31.
4
 The Third Amended Complaint asserts nine counts. See Third Am. Compl. [Dkt. 105] ¶¶ 289-
373. The case as to Defendants Her Majesty the Queen in Right of Canada and the Windsor-
Detroit Bridge Authority has been stayed, pending a final decision in CTC v. Attorney General of
Canada, Court File No. CV-12-446428, a related suit filed in the Ontario Superior Court of
Justice, and any appeals. See Op. [Dkt. 197]; Order [Dkt. 198].



                                                 2
                                II.    LEGAL STANDARD

               Federal Rule of Civil Procedure 54(b) provides that “[w]hen an action presents

more than one claim for relief,” the district court “may direct entry of a final judgment as to one

or more, but fewer than all, claims . . . only if the court expressly determines that there is no just

reason for delay.” Fed. R. Civ. P. 54(b). Absent an express determination that the District Court

has entered final judgment because there is no reason for delay, the Court of Appeals lacks

jurisdiction to review an Order the decides fewer than all the claims for relief. Blackman v.

District of Columbia, 456 F.3d 167, 175-76 (D.C. 2006). “The purpose of Rule 54(b) is to

‘mediate between the sometimes antagonistic goals of avoiding piecemeal appeals and giving

parties timely justice.’” Chaplaincy of Full Gospel Churches v. England, 221 F.R.D. 255,

257-58 (D.D.C. 2004) (internal alterations omitted) (quoting Taylor v. Fed. Deposit Ins. Corp.,

132 F.3d 753, 760 (D.C. Cir. 1997). Whether an order qualifies for Rule 54(b) final judgment is

a decision made in the discretion of the district court, which is “most likely to be familiar with

the case and with any justifiable reasons for delay,” Bldg. Indus. Ass’n of Superior Calif. v.

Babbitt, 161 F.3d 740, 743 (D.C. Cir. 1998); see also Petties v. District of Columbia, 227 F.3d

469, 472 (D.C. Cir. 2000) (“[T]he district court functions as a dispatcher, determining in its

sound discretion when a claim should proceed on to appellate resolution and when it should

await its fellows.” (internal alterations and quotations omitted)).

               A district court must follow certain steps in making this determination. See

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7-8 (1980) (citing Sears, Roebuck & Co. v.

Mackey, 351 U.S. 427 (1956)). “A district court must first determine that it is dealing with a

‘final judgment,’” id., that is, “an ultimate disposition of an individual claim entered in the

course of a multiple claims action.” Sears, 351 U.S. at 436. Next, the district court must decide



                                                   3
“whether there is any just reason for delay.” Curtiss-Wright, 446 U.S. at 8. The Supreme Court

notes that “[n]ot all final judgments on individual claims should be immediately appealable, even

if they are in some sense separable from the remaining unresolved claims.” Id. In exercising its

discretion, “a district court must take into account judicial administrative interests as well as the

equities involved” and should consider whether it is likely an “appellate court would have to

decide the same issues more than once.” Id.

               The D.C. Circuit has directed the district courts to “supply a statement of reasons”

when ruling on a motion under Rule 54(b). Taylor v. FDIC, 132 F.3d 753, 761 (D.C. Cir. 1997).

Absent such a statement, the appellate court may be “uncertain whether the district judge

exercised its discretion soundly, or indeed whether it exercised its discretion at all.” Id.; see also

Bldg. Indus. Ass’n of Superior Cal. v. Babbitt, 161 F.3d at 745 (“As we cannot on the record

before us determine that the district court [properly exercised its discretion], we conclude that the

Rule 54(b) certification before us is not proper.”).

                                     III.   ANALYSIS

               Plaintiffs argue that entry of a Rule 54(b) order is appropriate here because

delaying their ability to appeal Count IV delays “Plaintiffs’ ability to compete in the ‘race’ to

proceed with their Twin Span before the government sponsors of the NITC/DRIC proceed with

their proposed bridge, the construction of which will usurp Plaintiffs’ right (and ability) to build

their Twin Span.” Pl. Reply [Dkt. 199] at 3. Moreover, Plaintiffs maintain that Count IV is

separable from the remaining claims and issues. Federal Defendants contend that the remaining

claims are “based on the same facts and related legal issues [which] will likely be appealed

later.” According to Federal Defendants, this presents “a risk of inconsistent findings and

holdings” if the Court permits an immediate appeal of Count IV. Opp’n [Dkt. 196] at 2, 4.



                                                  4
                   1. Finality

               The Court expressly finds that its decision on Count IV is a final judgment. The

Court decided that the Coast Guard’s refusal to issue a navigational permit to Plaintiffs for the

Twin Span was not arbitrary and capricious, which was an “ultimate disposition of an individual

claim.” Sears, 351 U.S. at 436; see Order [Dkt. 163] (ordering that “judgment is entered in favor

of the Federal Defendants on Count IV”). On December 17, 2014 the Court denied Plaintiffs’

motion for reconsideration. Order [Dkt. 193]. This Court will take no further action on Count

IV.

                   2. No Just Reason For Delay

               While all of Plaintiffs’ claims center on Plaintiffs’ stymied efforts to build their

Twin Span before the government-sponsored NITC/DRIC, Count IV bears minimal legal and

factual similarity to the remaining claims. See Baystate Med. Ctr. v. Leavitt, 587 F. Supp. 2d 44,

47 n.1 (2008) (granting order for Rule 54(b) judgment because claims were “factually and

legally distinct,” but stating that “[n]ot surprisingly, there is some relationship” between the

claims). Appellate efficiency will not be frustrated by the entry of final judgment on Count IV

because Count IV is separable from the remaining claims. Count IV alleges that the United

States Coast Guard was arbitrary and capricious and violated the Administrative Procedure Act,

5 U.S.C. §§ 701-06, in delaying and failing to issue a navigational permit for the Twin Span. See

Third Am. Compl. ¶¶ 325–31. Specifically, Count IV challenges whether the 1906 Bridge Act,

33 U.S.C. § 491-98, and its regulations authorized the Coast Guard to refuse to amend Plaintiffs’

navigation permit to cover the Twin Span on the basis that Plaintiffs must first acquire an air

rights easement from the City of Detroit because the Twin Span would pass above Detroit-owned

land intended sometime to become Riverside Park. Plaintiffs’ remaining claims challenge the



                                                  5
actions of other Federal Defendants (not the Coast Guard) in seeking approval for and

constructing the NITC/DRIC in alleged violation of Plaintiffs’ franchise rights (Counts II and

III) and as otherwise being unlawful, ultra vires, and unconstitutional (Counts I, V-IX).

Appellate review of the statutes and Coast Guard regulatory requirements that underpin the

navigation permit process will not be duplicated upon subsequent appeals of any or all of the

remaining claims.

               Count IV was decided first by this Court because it is first on the critical path to

determining Plaintiffs’ rights and opportunities to construct a Twin Span. The Coast Guard’s

interpretation and application of its regulation are, at a minimum, matters on which reasonable

minds might differ. And, should the Circuit reverse and order the Coast Guard to issue a

navigation permit for the Twin Span, Plaintiffs will have received all the government approvals

necessary for its construction. At that point, the litigation against the other Federal Defendants

may become unnecessary. 5

               The Court is also persuaded that the equities weigh in favor of granting Plaintiff’s

motion for an immediate appeal. Conspicuously, Federal Defendants proffer no harm. In sharp

contrast, Plaintiffs have been trying to obtain a navigation permit for over ten years. Their

inability to obtain the requisite navigation permit from the Coast Guard has significantly delayed

the Twin Span. Plaintiffs anticipate that Detroit will be more likely to accept their $5 million

offer to acquire an air rights easement once they obtain a navigation permit. In addition, the

Coast Guard promptly issued a navigation permit for the NITC/DRIC creating a “tenuous

financial position [for Plaintiffs] because of the proposed construction of the NITC/DRIC

bridge.” Op. [Dkt. 162] at 24. Plaintiffs have expended significant resources over a long period
5
   Whether the City of Detroit will then sell air rights over a corner of Riverside Park to Plaintiffs
is a matter between Plaintiffs and Detroit, not the Coast Guard or the other Federal Defendants.

                                                  6
of time to protect their interests in the Ambassador Bridge and to build a Twin Span. “Justice to

the litigants” weighs squarely in their favor. Brooks v. Dist. Hosp. Partners, L.P., 606 F.3d 800,

806 (D.C. Cir. 2010) (quoting Curtiss-Wright, 446 U.S. at 6).

               Further, Plaintiffs’ allegations against the remaining Federal Defendants are not

as straight-forward as either side believes. Plaintiffs and Federal Defendants have fully briefed

motions that would dispose of various counts of the Third Amended Complaint. Having fully

considered whether it would be more appropriate to decide those motions and send the entire

case to the Circuit at once, this Court concludes it cannot be done. Discovery may be needed

concerning various actions by the federal actors, which discovery requests would raise, in turn,

serious collateral matters that could warrant immediate review. Sound discretion suggests that

immediate review of Count IV, which will resolve critical and independent aspects of this suit, is

fully warranted.

               For all these reasons, the Court “expressly determines that there is no just reason

for delay,” Fed. R. Civ. P. 54(b), and it will grant Plaintiffs’ motion for entry of final judgment

on Count IV of the Third Amended Complaint.

                                  IV.     CONCLUSION

               For the foregoing reasons, Plaintiffs’ motion for an order under Rule 54(b) will be

granted. A separate order accompanies this memorandum opinion.



Date: February 13, 2015                                              /s/
                                                      ROSEMARY M. COLLYER
                                                      United States District Judge




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