                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit Rule 206
                                      File Name: 12a0240p.06

                UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                                 X
                                                  -
 EJS PROPERTIES, LLC,
                                                  -
                                Plaintiff-Appellant,
                                                  -
                                                  -
                                                     No. 10-4471
             v.
                                                  ,
                                                   >
                                                  -
                                                  -
 CITY OF TOLEDO; ROBERT MCCLOSKEY, an

                       Defendants-Appellees. -
 individual,
                                                 N
                  Appeal from the United States District Court
                   for the Northern District of Ohio at Toledo.
                No. 3:04-cv-7312—James G. Carr, District Judge.
                                    Argued: April 19, 2012
                            Decided and Filed: August 2, 2012
            Before: MOORE, GIBBONS, and ALARCÓN,* Circuit Judges.

                                      _________________

                                           COUNSEL
ARGUED: Timothy M. Rastello, HOLLAND & HART LLP, Denver, Colorado, for
Appellant. Adam W. Loukx, CITY OF TOLEDO DEPARTMENT OF LAW, Toledo,
Ohio, Jay E. Feldstein, KALNIZ, IORIO & FELDSTEIN, CO., LPA, Toledo, Ohio, for
Appellees. ON BRIEF: Timothy M. Rastello, Peter C. Houtsma, HOLLAND & HART
LLP, Denver, Colorado, Cary Cooper, COOPER & WALINSKI, LPA, Toledo, Ohio,
for Appellant. Adam W. Loukx, CITY OF TOLEDO DEPARTMENT OF LAW,
Toledo, Ohio, Jay E. Feldstein, Edward J. Stechschulte, KALNIZ, IORIO &
FELDSTEIN, CO., LPA, Toledo, Ohio, for Appellees.




        *
         The Honorable Arthur L. Alarcón, Senior Judge for the United States Court of Appeals for the
Ninth Circuit, sitting by designation.


                                                 1
No. 10-4471        EJS Prop. v. City of Toledo et al.                               Page 2


                                  _________________

                                       OPINION
                                  _________________

       KAREN NELSON MOORE, Circuit Judge. This case comes before us following
a partial grant of summary judgment. The district court certified its summary-judgment
order as final under Federal Rule of Civil Procedure 54(b) by stamping “granted” on the
plaintiff’s motion for Rule 54(b) certification. Because the district court never expressly
determined that there was no just reason for delay, there is no final appealable order
from which we would have jurisdiction.

       We lack jurisdiction to hear an appeal following an improper certification under
Rule 54(b). Lowery v. Fed. Express Corp., 426 F.3d 817, 820 (6th Cir. 2005); see also
Justice v. Pendleton Place Apartments, 40 F.3d 139, 141 (6th Cir. 1994). Proper
certification under Rule 54(b) is a two-step process. “First, the district court must
expressly direct the entry of final judgment as to one or more but fewer than all the
claims or parties in a case. Second, the district court must expressly determine that there
is no just reason to delay appellate review.” Gen. Acquisition, Inc. v. GenCORP, Inc.,
23 F.3d 1022, 1026 (6th Cir. 1994) (internal quotation marks and alterations omitted).
We review de novo the district court’s conclusions on the first inquiry and for abuse of
discretion the district court’s finding of no just reason for delay. Id. at 1027.

       Here, we are unable to review the second element because the district court failed
to “expressly determine[]” that there was no just reason for delay or give any reasons
behind its decision to certify the order. Rule 54(b) requires that “the district court
articulate its reasons for certifying a final order.” Justice, 40 F.3d at 141; see also
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 3 (1980) (“[T]he court must make
an express determination that there is no just reason for delay.”); GenCorp, Inc. v. Olin
Corp., 390 F.3d 433, 442 (6th Cir. 2004) (holding district court “must spell out its
reasons for concluding that prompt review is preferable”), cert. denied, 546 U.S. 935
(2005); Daleure v. Kentucky, 269 F.3d 540, 543 (6th Cir. 2001) (holding Rule 54(b)
certification improper in part because order “did not contain the findings required” or
No. 10-4471            EJS Prop. v. City of Toledo et al.                                          Page 3


“balance the various interests”). “If no reasons were given then we cannot tell if there
has been an abuse of discretion.” Solomon v. Aetna Life Ins. Co., 782 F.2d 58, 61
(6th Cir. 1986).

         We have on rare occasions excused a district court’s failure to set forth a
statement of reasons if the reasons are apparent from the record. See Akers v. Alvey,
338 F.3d 491, 495-96 (6th Cir. 2003) (holding bare-bones statement of “no just reason
for delay” questionable but sufficient to confer jurisdiction); but see Solomon, 782 F.2d
at 62 (holding bare-bones statement of “no just reason for delay” insufficient to convey
jurisdiction). However, we have never held that the failure to make an express
determination at all is sufficient to confer jurisdiction. See also Elliott v. Archdiocese
of N.Y., 682 F.3d 213, 224-25 (3d Cir. 2012) (citing cases from Second, Ninth, Tenth,
and D.C. Circuits requiring express statement at a minimum to confer appellate
jurisdiction).1 We agree with the Third Circuit that “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.” Elliott, 682 F.3d at 221.

         Here, the district court simply stamped “motion granted” on EJS Properties’
unopposed motion for certification under Rule 54(b). R. 356 (D. Ct. Order). Because
the district court failed to make an express determination that there was no just reason
for delay, we lack jurisdiction to hear this appeal. However, we recognize that this
appeal has already been fully briefed and argued. Therefore, if Appellant can obtain a
valid final judgment properly certified under Rule 54(b) from the district court within
thirty days from the date of filing of this opinion, Appellant may seek reinstatement of




         1
          Only the Fifth Circuit has treated the express-determination requirement as non-jurisdictional.
Kelly v. Lee’s Old Fashioned Hamburgers, Inc., 908 F.2d 1218, 1220 (5th Cir. 1990) (en banc). Even
though we mentioned the Fifth Circuit’s position in a case on a different issue, see In re Metro. Gov’t of
Nashville & Davidson Cnty., 606 F.3d 855, 861 (6th Cir. 2010), that “cf.” reference cannot overturn
Solomon and its progeny requiring an express determination to confer jurisdiction, consistent with the plain
terms of Rule 54(b).
No. 10-4471           EJS Prop. v. City of Toledo et al.                                Page 4


this appeal. We will then decide the merits of any claims properly certified without
further briefing or argument.

          If Appellant returns to the district court to seek certification, we urge the district
court to be equally mindful of the first element for proper Rule 54(b) certification, the
presence of multiple claims and parties. Although the dismissal of all the claims against
the City would likely satisfy the first element with respect to those claims, the
adjudicated claims against McCloskey are not necessarily distinct from the remaining
claim simply because they were separately pleaded. “A ‘claim’ under Rule 54(b)
‘denotes the aggregate of operative facts which give rise to a right enforceable in the
courts’ even if the party has raised different theories of relief.” Olin Corp., 390 F.3d at
442 (quoting Gen. Acquisition, 23 F.3d at 1028). Although we review the district court’s
discussion of this issue de novo, our jurisdiction is equally contingent upon the
requirement that the remaining state-law claim against McCloskey does not arise from
the same set of operative facts as the dismissed constitutional claims and is in fact
“separate” for purposes of Rule 54(b). See Lowery, 426 F.3d at 821 (holding Rule 54(b)
certification improper on dismissed Title VII claim when state-law breach-of-contract
claim from same retaliation allegation remained pending); but see Olin Corp., 390 F.3d
at 442 (holding CERCLA liability claim separate from remaining insurance contribution
claim).

          For the aforementioned reasons, the appeal is DISMISSED without prejudice
and subject to reinstatement consistent with the provisions herein.
