                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                      UNITED STATES COURT OF APPEALS August 4, 2010

                            FOR THE TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                     Clerk of Court


    INOLA DRUG, INC., individually and
    on behalf of all others similarly
    situated,

                Plaintiff-Appellant,                       No. 09-5094
                                              (D.C. No. 4:06-CV-00117-GKF-TLW)
    v.                                                     (N.D. Okla.)

    EXPRESS SCRIPTS, INC.,

                Defendant-Appellee.



                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, TYMKOVICH and GORSUCH, Circuit Judges.




         Inola Drug, Inc. (“Inola”) filed a complaint against Express Scripts,

Inc. (“ESI”) that included claims for breach of contract,

misrepresentation/suppression, and unjust enrichment/constructive trust. ESI



*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
filed a counterclaim for breach of contract. In March 2009, the district court

granted partial summary judgment in favor of ESI on Inola’s claim for breach of

contract. In early May 2009, Inola and ESI jointly stipulated to the dismissal

without prejudice of Inola’s misrepresentation/suppression and unjust

enrichment/constructive trust claims, as well as ESI’s counterclaim for breach of

contract. On May 21, 2009, the district court entered judgment in favor of ESI,

explaining that all claims had either been dismissed or resolved by summary

adjudication.

      On June 22, Inola filed a notice of appeal from the district court’s May 21

judgment. On July 7, ESI filed its first motion to dismiss. On July 9, this court

entered an order referring the motion to dismiss to this merits panel and abating

the appeal. The order explained that the dismissals without prejudice might not

be sufficient to give rise to a final appealable order, citing to Jackson v. Volvo

Trucks, 462 F.3d 1234, 1238 (10th Cir. 2005). In Jackson, we explained that:

“Our general rule is that a party cannot obtain appellate jurisdiction where the

court has dismissed at least one claim without prejudice because the case has not

been fully disposed of in the lower court.” Accordingly, the order directed Inola

to obtain a final judgment or certification under Fed. R. Civ. P. 54(b). See Lewis

v. B.F. Goodrich Co., 850 F.2d 641, 645-46 (10th Cir. 1988). Inola ultimately

obtained a Rule 54(b) certification order from the district court. During the

course of the proceedings, ESI subsequently filed three more motions to dismiss,

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all of which were referred to this merits panel. We DENY the first three motions

as moot, GRANT the fourth motion, and DISMISS this appeal.

      In the fourth motion, ESI argued that the appeal should be dismissed for

lack of jurisdiction because the district court erred in granting Inola’s motion for

Rule 54(b) certification. When considering whether to certify an order under

Rule 54(b), a district court must make two determinations:

      First, the district court must determine that the order it is certifying
      is a final order. Second, the district court must determine that there
      is no just reason to delay review of the final order until it has
      conclusively ruled on all claims presented by the parties to the case.

Okla. Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) (citations

omitted). We apply a two-tiered standard of review to the district court’s Rule

54(b) certification. See id. “The district court’s determination of the certified

order’s finality is subject to de novo review because it is a question of law.

However, the district court’s determination that there is no just reason for delay is

reviewed only for abuse of discretion.” Id. (citations omitted).

      In order to determine whether an order is “final” a district court must first

consider the separability of the adjudicated and unadjudicated claims. See Jordan

v. Pugh, 425 F.3d 820, 826 (10th Cir. 2005) (in considering whether an order is

final, “the controlling jurisdictional question is . . . whether [the claim that has

been resolved] is distinct and separable from the claims left unresolved”

(quotation omitted)); Old Republic Ins. Co. v. Durango Air Serv., Inc., 283 F.3d


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1222, 1225 (10th Cir. 2002) (same); Bruner, 259 F.3d at 1243 (same). “For

purposes of Rule 54(b), a claim comprises all factually or legally connected

elements of a case.” Jordan, 425 F.3d at 827 (quotation omitted). In determining

whether claims are separable, courts should “consider whether the allegedly

separate claims turn on the same factual questions, whether they involve common

legal issues, and whether separate recovery is possible.” Id.

      Here, the district court concluded that its May 21 order was “‘final’

because it [was] an ultimate disposition of Inola Drug’s contract claim and for

injunctive relief based on the alleged breach of contract.” Dist. Ct. Amended

Order at 4. There was no discussion of whether the contract claim was “distinct

and separable” from the claims that had been dismissed without prejudice.

      The bulk of the district court’s certification decision involved the court’s

consideration of whether there was any just reason for delay. As part of that

discussion, the district court noted that the dismissed claims “are essentially

variations on the same theme” as Inola’s breach of contract claim and that they

“represent overlapping grounds for the same relief.” Id. at 5. But the district

court ultimately determined that “[t]he presence of overlapping, unadjudicated

claims for relief does not necessarily mean that Rule 54(b) certification would be

improper.” Id. The district court noted that although there was a “possibility that

the appellate court might face substantially similar issues on a subsequent appeal

of a subsequently-filed action,” an appellate decision on the breach of contract

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claim is likely to be dispositive of the dismissed claims. Id. at 6. Moreover, the

district court explained that the dismissed claims are now likely barred by the

statute of limitations. The district court therefore concluded that “[i]n the interest

of sound and efficient judicial administration, Inola Drug ought to be afforded

appellate review of [the decision] on the central claim in this lawsuit—the

contract claim—when its claims dismissed without prejudice are likely barred”

and that the “practical alternative would be to deprive Inola Drug of appellate

review.” Id.

      ESI argues that the district court erred in granting Rule 54(b) certification

because the district court’s decision on whether the order is final is conclusory

and fails to apply the test for determining finality as stated by this court. ESI

further argues that the district court’s discussion in the “no just reason for delay”

section actually supports a finding that the order is not final because the district

court has established that the claims are not separable. We agree with ESI.

      The district court failed to consider whether the contract claim was

“distinct and separable” from the dismissed claims when it made its finality

determination. This was error. Moreover, the district court’s subsequent analysis

supports a determination that the order is not final. As the district court

explained:

      The heart of plaintiff’s case is its claim for breach of contract.
      Plaintiff’s other claims are essentially variations on the same theme.
      For instance, in its claim for misrepresentation/suppression, plaintiff

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      alleges defendant suppressed the fact that they would not honor the
      terms of the parties’ contractual agreement(s) concerning such drug
      information updates. Plaintiff appears to seek contract damages for
      the alleged misrepresentation/suppression – restitution of the
      contract amount minus the amount reimbursed by Defendant. In its
      claim for unjust enrichment/constructive trust, plaintiff alleges in its
      contracts and provider manuals, ESI misrepresented and suppressed
      the true nature of their drug information update system from the
      Plaintiff by misrepresenting the fact that drug information would be
      updated daily, and such conduct engaged in by ESI has resulted in
      ESI obtaining money, which in equity and good conscience, belongs
      to Plaintiff. The alternative claims Inola Drug dismissed without
      prejudice represent overlapping grounds for the same relief.

Dist. Ct. Amended Order at 5 (quotations, citations, footnote and alterations

omitted). These findings—which demonstrate that the claims have factual

overlap, common legal questions, and seek the same relief— establish that the

dismissed claims and the contract claim are not “distinct and separable.” See

Jordan, 425 F.3d at 826-27; Old Republic, 283 F.3d at 1225; Bruner, 259 F.3d at

1242-43. As we have explained when discussing the policy reasons behind Rule

54(b): “Interrelated legal claims and alternative theories for recovery should be

litigated together and appealed together.” Jordan, 425 F.3d at 829. Because the

district court erred in certifying the May 21 order as a final order, we lack




                                          -6-
jurisdiction to consider this appeal. Accordingly, we GRANT ESI’s fourth

motion to dismiss, and we DISMISS the appeal.


                                                 Entered for the Court



                                                 Mary Beck Briscoe
                                                 Circuit Judge




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