COLORADO COURT OF APPEALS                                       2017COA43

Court of Appeals No. 15CA1886
Yuma County District Court No. 12CV43
Honorable Michael K. Singer, Judge


Stephen L. Allison and Barry R. Allison,

Plaintiffs-Appellants and Cross-Appellees,

v.

Frank Engel and Mary Engel,

Defendants-Appellees and Cross-Appellants.


                  APPEAL AND CROSS-APPEAL DISMISSED

                                  Division II
                        Opinion by JUDGE J. JONES
                        Dailey and Berger, JJ., concur

                           Announced April 6, 2017


Haynes and Boone, LLP, John D. Fognani, Robert P. Thibault, Denver,
Colorado, for Plaintiffs-Appellants and Cross-Appellees

The Halliburton Law Firm, L.L.C., Samantha L. Halliburton, Denver, Colorado,
for Defendants-Appellees and Cross-Appellants
¶1    C.R.C.P. 54(b) allows a district court to enter a final judgment

 on one claim in a multiple claim case, thereby allowing an

 immediate appeal of that judgment, but only if certain requirements

 are met. One of those requirements is that there is “no just reason

 for delay.” To give due force to the strong policy against piecemeal

 appeals, a district court must apply this requirement (as well as the

 others) with caution, and only where doing so is justified by reasons

 that clearly outweigh the concerns animating that policy. We

 therefore hold that to satisfy the requirement of no just reason for

 delay, a district court must give reasons for certification showing

 that unless the judgment on the claim is certified as final, a party

 would experience some hardship or injustice through delay that

 could be alleviated only by an immediate appeal.

¶2    In this case, which pits neighboring landowners against each

 other, the district court certified a default judgment on one of

 several counterclaims — one for unjust enrichment — as final,

 purportedly to “avoid duplicative efforts” (presumably, multiple

 trials) and to get “a clear sense of direction” from the appellate court

 as to “the propriety of [the] . . . default judgment and related

 issues.” These reasons, considered individually or together, do not

                                    1
 show a danger of hardship or injustice to any party that could be

 alleviated only by allowing an immediate appeal. It follows that the

 district court abused its discretion in determining that there was no

 just reason for delay. It further follows that the district court

 improperly certified its default judgment on the unjust enrichment

 counterclaim as final, and therefore we lack jurisdiction over the

 appeal.

                             I. Background

¶3     The history of this case is rather complicated, but bear with

 us.

¶4     The Allisons own parcels of property on either side of a parcel

 owned by the Engels. But the Allisons and Engels differ as to the

 precise boundaries of their neighboring parcels, and for a number

 of years they have had disagreements and run-ins primarily over a

 pair of water wells (one drilled in 1976 and the other drilled in

 1995) located on one of the Allisons’ parcels.

¶5     The Allisons filed a complaint against the Engels asserting two

 claims for trespass and one for a declaration of “the parties’

 respective rights, obligations, ownership, use and charges related

 to” the 1995 well. The trespass claims allege that the Engels built a

                                    2
 fence on the Allisons’ land without their permission, and that the

 Engels have trespassed on the Allisons’ other parcel, resulting in

 “destruction” of a portion of that parcel.

¶6    On July 25, 2013, the Engels filed both their answer to the

 complaint and counterclaims. They deny trespassing on either of

 the Allisons’ parcels because, they allege, they’ve obtained both

 disputed tracts by adverse possession. In response to the Allisons’

 declaratory judgment claim, the Engels allege that (1) the previous

 owner of the Allisons’ property granted them an easement to drill a

 water well, to install pipes delivering well water to their property,

 and for access to the well; (2) they drilled the well in 1976 and used

 it continually thereafter; (3) a replacement water well was drilled in

 1995; (4) they installed water lines from the replacement well to the

 first well to enable them to get water from the replacement well; (5)

 the Allisons allowed others to attach water lines to the Engels’ water

 lines; and (6) since 1976, they’ve paid all electric bills associated

 with use of the wells. They too ask for a declaration of the parties’

 rights and obligations relating to the water and the wells.

¶7    The Engels also assert several counterclaims. The first seeks

 a declaration quieting title of both disputed tracts. The second

                                     3
 alleges that the Allisons have been unjustly enriched by the Engels’

 payment of all electric bills associated with operation of the wells

 and of all costs to repair the wells. The third alleges intentional

 infliction of emotional distress resulting from confrontations

 between the parties. And the fourth asserts that Mr. Allison has

 created a “private nuisance” by interfering with the Engels’ use of

 and access to the wells and by trespassing on their property.

¶8    Rather than replying to the Engels’ counterclaims, the Allisons

 filed a motion for partial summary judgment on September 30,

 2013, the last day of an extension the court had previously granted

 the Allisons to answer or otherwise respond to the counterclaims.

 The motion sought summary judgment on only two of the Engels’

 allegations — that they have a “senior water right” in the 1995

 replacement well and that they have an easement for access to that

 well. The Allisons did not answer or otherwise respond to any other

 aspect of the Engels’ counterclaims.

¶9    One week later, the Engels filed a motion for default judgment

 on their counterclaims based on the Allisons’ failure to answer or

 otherwise respond except as in the motion for partial summary



                                    4
  judgment. By rule, the Allisons had until October 28, 2013, to

  respond to that motion. They didn’t meet that deadline.

¶ 10   Consequently, the district court, noting the Allisons’ failure to

  respond, granted the Engels’ motion for default judgment in part.

  The court entered default judgment in the Engels’ favor on all four

  of their counterclaims and awarded them damages of $32,114.05.1

  The court certified the default judgment as final under Rule 54(b),

  though no party had asked for such a certification.2

¶ 11   Later that same day, the Allisons filed their response to the

  motion for default judgment and a motion under C.R.C.P. 60 to set

  aside the default judgment. They asserted, incorrectly, that their

  response wasn’t due until October 29, and so the court shouldn’t

  have entered default judgment. Much procedural wrangling

  ensued.

¶ 12   As now relevant, the Engels responded to the Allisons’ Rule 60

  motion, arguing that the Allisons’ counsel had simply miscalculated

  the response date and that the Allisons had been obligated to

  answer the counterclaims because they had addressed only two

  1 The court denied the Engels’ request for an award of attorney fees.
  2 The court’s order said only that there was “no just reason for

  delay.”
                                    5
  “very narrow issues” relating to one of the counterclaims in their

  motion for partial summary judgment. Before filing a reply in

  support of their Rule 60 motion, the Allisons filed an answer to the

  counterclaims on November 7, 2013, which the Engels

  subsequently moved to strike. In their Rule 60 reply, the Allisons

  belatedly acknowledged that their counsel had miscalculated the

  due date for their response to the Engels’ motion for default

  judgment. Nonetheless, they argued that they weren’t required to

  answer or otherwise respond to the counterclaims because they had

  filed a dispositive motion — the aforementioned motion for partial

  summary judgment. The Engels moved to strike this new

  argument. In the midst of all this, the parties completed briefing on

  the Allisons’ motion for partial summary judgment.

¶ 13   On December 30, 2013, the court entered an order setting

  aside the default judgment in part. The court ruled that the

  Allisons hadn’t shown any excusable neglect for failing to timely

  answer the counterclaims. But because the motion for partial

  summary judgment could “fairly be read as contesting at least some

  of the underlying factual allegations concerning the water wells,”

  the court said it had erred in awarding damages on the Engels’

                                    6
  intentional infliction of emotional distress and nuisance

  counterclaims. The court left intact the remainder of the default

  judgment.

¶ 14   After the Allisons filed additional motions under Rules 59 and

  60 further attacking the default judgment, the court held a hearing

  on the Engels’ quiet title counterclaim. (Before the hearing, the

  court granted the Allisons’ motion for partial summary judgment

  only on the issue whether the Engels had a “senior water right.”)

  Because the court concluded that there was a factual dispute as to

  whether the Engels had adversely possessed the two tracts at issue,

  it set aside the default judgment on the quiet title counterclaim.

¶ 15   The Allisons appealed. The Engels cross-appealed. This court

  ordered the parties to show cause why the appeal should not be

  dismissed for lack of a final, appealable order. The Allisons

  responded that there had been a proper Rule 54(b) certification; the

  Engels asserted (as they had in their notice of cross-appeal) that

  there wasn’t a final, appealable order. A motions division of this

  court dismissed the appeal and cross-appeal.

¶ 16   Undeterred, the Allisons asked the district court for a new

  Rule 54(b) certification, arguing that the court’s rulings on the post-

                                     7
default judgment motions had “clarifi[ed]” the “scope” of the default

judgment. They also argued that allowing an immediate appeal

would

         provide the court and the parties, “in the shortest time, a

          binding decision that would provide a definite appellate

          answer as to the surviving applicability of the default

          judgment, in whole or part,” thereby enabling the parties

          to focus on the claims and counterclaims to be tried and

          avoid the “distraction” of “unresolved appellate outcomes

          on key claims and issues”;

         be “judicially efficient because it would simply displace a

          later appeal of the default judgment as part of an appeal

          of an entire case”;

         somehow eliminate the prospect of a second trial that

          otherwise would have to occur in the event the default

          judgment were reversed in a later appeal; and

         increase the possibility of settlement by clearing up the

          “uncertainty about the ultimate outcome of the scope of

          the default judgment as to the [remaining]

          counterclaims.”
                                  8
¶ 17   The Engels opposed the motion. They argued that because the

  Allisons had not timely appealed from the first Rule 54(b)

  certification, they should not get a second bite at the appellate

  apple. They also argued that an immediate appeal would result

  merely in further unwarranted delay in resolving the case.

¶ 18   The court granted the Allisons’ request. It reasoned only that

  certification would “avoid duplicative efforts,” and that by allowing

  the court of appeals to address the propriety of the default

  judgment, “once trial is conducted concerning the merits, the

  parties and the court will have a clear sense of direction in terms of

  issues to be considered at that point in the case.”

¶ 19   Once again, the Allisons appealed and the Engels cross-

  appealed. And once again, a motions division of this court ordered

  the parties to show cause why the appeal shouldn’t be dismissed for

  lack of a final, appealable order. The Allisons responded, but the

  Engels (who had said in their notice of cross-appeal that the district

  court should not have again certified the default judgment as final)

  didn’t. The motions division dismissed the appeal and cross-appeal

  as to the Engels’ quiet title counterclaim for lack of finality, but it



                                      9
  said the appeal could proceed as to the default judgment on the

  unjust enrichment counterclaim.

¶ 20   The case was subsequently assigned to this division. After

  reading the parties’ appellate briefs and the record, we became

  concerned about whether the district court had properly certified

  the default judgment on the unjust enrichment counterclaim as

  final under Rule 54(b). So we ordered the parties to file

  supplemental briefs addressing whether the unjust enrichment

  counterclaim is a separate claim for purposes of Rule 54(b) and

  whether there is no just reason for delay of an appeal pertaining

  solely to that counterclaim.

¶ 21   We’ve considered the parties’ responses. Because we’re not

  persuaded that there is “no just reason for delay,” as that

  requirement is properly construed, we dismiss the appeal and

  cross-appeal.

               II. Applicable Law and Standard of Review

¶ 22   We must determine independently our jurisdiction over an

  appeal, nostra sponte if necessary. People v. S.X.G., 2012 CO 5, ¶

  9; Meridian Ranch Metro. Dist. v. Colo. Ground Water Comm’n, 240

  P.3d 382, 385 (Colo. App. 2009). And we are not bound by a

                                   10
  motions division’s determinations of that issue. First Comp Ins. v.

  Indus. Claim Appeals Office, 252 P.3d 1221, 1222 n.1 (Colo. App.

  2011); FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260, 1262 (Colo.

  App. 2004).

¶ 23   Generally speaking, the court of appeals has jurisdiction only

  over appeals from final judgments. § 13-4-102(1), C.R.S. 2016;

  C.A.R. 1(a); Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 & n.2

  (Colo. 1982). Rule 54(b), however, provides an exception to this

  rule. Harding Glass, 640 P.2d at 1125, 1126. Thus, our

  jurisdiction over an appeal from an order the district court has

  certified as final under Rule 54(b) depends on the correctness of

  that certification. E. Cherry Creek Valley Water & Sanitation Dist. v.

  Greeley Irrigation Co., 2015 CO 30M, ¶ 12; Harding Glass, 640 P.2d

  at 1126.

¶ 24   A certification under Rule 54(b) is correct only if (1) the

  decision certified is a ruling on an entire claim for relief; (2) the

  decision is final in that it ultimately disposes of the individual

  claim; and (3) the district court determines expressly that there is

  no just reason for delay in entering a final judgment on the claim.

  E. Cherry Creek Valley Water & Sanitation Dist., ¶ 11; Lytle v. Kite,

                                      11
  728 P.2d 305, 308 (Colo. 1986). The party seeking certification has

  the burden to establish that those requirements are satisfied.

  Braswell Shipyards, Inc. v. Beazer E., Inc., 2 F.3d 1331, 1335 (4th

  Cir. 1993).

¶ 25   We review de novo the legal sufficiency of a district court’s

  Rule 54(b) certification. E. Cherry Creek Valley Water & Sanitation

  Dist., ¶ 12; Richmond Am. Homes of Colo., Inc. v. Steel Floors, LLC,

  187 P.3d 1199, 1203 (Colo. App. 2008). Similarly, we may “fully

  review[]” a district court’s determinations as to the first two

  requirements because such determinations are “not truly

  discretionary.” Harding Glass, 640 P.2d at 1125. But we look at

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

  delay differently. Because the district court is “most likely to be

  familiar with the case and with any justifiable reasons for delay,”

  Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437 (1956),3 we

  review a district court’s determination of no just reason for delay

  3 Because the federal rule and C.R.C.P. 54(b) are virtually identical,
  “case law interpreting the federal rule is persuasive in analysis of
  the Colorado rule.” Harding Glass Co. v. Jones, 640 P.2d 1123,
  1125 n.3 (Colo. 1982); see also Warne v. Hall, 2016 CO 50, ¶¶ 15-
  17 (discussing the desirability of applying Colorado procedural rules
  in substantial conformity with their federal counterparts).

                                     12
  only for an abuse of discretion. Lytle, 728 P.2d at 308, 309; accord

  Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980);

  Harding Glass, 640 P.2d at 1125. A district court abuses its

  discretion when its ruling is manifestly arbitrary, unreasonable, or

  unfair, or based on an erroneous view of the law. People v. Elmarr,

  2015 CO 53, ¶ 20.4

                               III. Analysis

                        A. Entire Claim for Relief

¶ 26   Determining whether a particular claim constitutes an entire

  claim for relief for Rule 54(b) purposes is not as easy as simply

  looking at the labels in a party’s pleading. A pleading asserting a

  single legal right states but one claim, even if the claimant seeks

  multiple remedies for the violation of that right. Harding Glass, 640

  P.2d at 1126. On the other hand, claims are separate “when more

  than one recovery is possible and when a judgment on one claim

  4 In Harding Glass, the court said that a court abuses its discretion
  in this context only if its decision was “clearly unreasonable.” 640
  P.2d at 1125 (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446
  U.S. 1, 10 (1980)). We don’t believe that in doing so the court
  intended to adopt a standard different from that ordinarily
  articulated. After all, manifestly erroneous and clearly erroneous
  would appear to be the same. See Carrillo v. People, 974 P.2d 478,
  485 (Colo. 1999) (“abuse of discretion,” “clear abuse of discretion,”
  and “gross abuse of discretion” all mean the same).
                                    13
  would not bar a judgment on the other claims.” Richmond Am.

  Homes, 187 P.3d at 1203.

¶ 27   The parties in this case argue that, although there is some

  factual overlap in the proof of the unjust enrichment counterclaim

  and the other claims, the unjust enrichment counterclaim is an

  entire claim for relief because recovery on that claim does not

  depend on how any other claim is resolved. More specifically,

  resolving the unjust enrichment counterclaim does not depend on

  who owns the disputed tracts, whether the Engels are guilty of

  trespass, or whether Mr. Allison’s alleged behavior was tortious.

¶ 28   The problem with the parties’ argument, however, is that each

  has asserted declaratory judgment claims (which remain pending)

  asking the court to determine the parties’ respective rights in the

  wells, including who is responsible for costs associated with those

  wells. So it may be that the unjust enrichment counterclaim is

  essentially subsumed in the declaratory judgment claims, even

  though those claims seek different remedies. Cf. Gerardi v. Pelullo,

  16 F.3d 1363, 1370 (3d Cir. 1994) (expressing doubt that unjust

  enrichment claim was a separate claim for Fed. R. Civ. P. 54(b)



                                    14
  purposes because it was arguably a “lesser-included aspect[]” of

  other claims).

¶ 29   We needn’t decide this tricky issue, however, because we

  conclude that the third requirement for certification — that there is

  no just reason for delay — isn’t met in this case, as discussed

  below.

                                 B. Finality

¶ 30   Assuming the district court’s default judgment on the unjust

  enrichment counterclaim is a ruling on an entire claim, there is no

  question that the decision is final. The ruling determines both

  liability and damages. See Lytle, 728 P.2d at 309 (a ruling

  determining liability and damages that left nothing for the court to

  do but execute on the judgment was final); Harding Glass, 640 P.2d

  at 1127 (observing that where the issue of damages is reserved,

  there is no final judgment).

                      C. No Just Reason for Delay

¶ 31   “In deciding whether there are just reasons to delay an appeal

  of an individual final judgment, a district court must take into

  account the interests of judicial administration, as well as the

  equities involved.” Lytle, 728 P.2d at 309; accord Curtiss-Wright,

                                     15
  446 U.S. at 8.5 Consideration of the needs of sound judicial

  administration is necessary to further the historic policy against

  piecemeal appeals, a policy Rule 54(b) was intended to preserve.

  Curtiss-Wright, 446 U.S. at 8; Sears, Roebuck & Co., 351 U.S. at

  438; see Harding Glass, 640 P.2d at 1127; see also Linnebur v. Pub.

  Serv. Co. of Colo., 716 P.2d 1120, 1123 (Colo. 1986) (“To avoid

  piecemeal review, final judgments must meet the requirements of

  C.R.C.P. 54(b).”); 15A Charles Alan Wright, Arthur R. Miller &

  Edward H. Cooper, Federal Practice and Procedure § 3907 (2d ed.

  1992) (discussing in depth the purposes of the final judgment rule).

¶ 32   Nonetheless, Rule 54(b) allows for an early appeal “to avoid the

  possible injustice of a delay in entering judgment on a distinctly

  separate claim” that can result from modern rules of pleading

  allowing liberal joinder of claims and parties. 10 Charles Alan

  Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

  Procedure § 2654, at 30 (4th ed. 2014); accord 10 James Wm. Moore

  et al., Moore’s Federal Practice § 54.21[1] (3d ed. 2015). But given


  5 We acknowledge that our task is “not to reweigh the equities or
  reassess the facts but to make sure that the conclusions derived
  from those weighings and assessments are juridically sound and
  supported by the record.” Curtiss-Wright Corp., 446 U.S. at 10.
                                    16
  the strong policy against piecemeal appeals, district courts

  shouldn’t make Rule 54(b) certifications routinely, even in

  multiclaim or multiparty cases. Nor should courts certify rulings as

  an accommodation to counsel. Braswell Shipyards, 2 F.3d at 1335;

  Burlington N. R.R. Co. v. Bair, 754 F.2d 799, 800 (8th Cir. 1985) (per

  curiam); see Curtiss-Wright, 446 U.S. at 10 (“Plainly, sound judicial

  administration does not require that Rule 54(b) requests be granted

  routinely.”). District courts should instead be reluctant to enter

  Rule 54(b) orders since the purpose of the rule is limited to avoiding

  undue hardship resulting from a delay in allowing an appeal. Okla.

  Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001); see also

  Gerardi, 16 F.3d at 1373 (“[A] district court should be conservative

  in invoking Rule 54(b) . . . .”); Morrison-Knudsen Co. v. Archer, 655

  F.2d 962, 965 (9th Cir. 1981) (Certification “must be reserved for

  the unusual case in which the costs and risks of multiplying the

  number of proceedings and of overcrowding the appellate docket are

  outbalanced by pressing needs of the litigants for an early and

  separate judgment as to some claims or parties.”).

¶ 33   And so, in recognition of the need to limit certifications

  appropriately, the federal courts, in applying Fed. R. Civ. P. 54(b),

                                    17
  have held that to satisfy the requirement that there is no just

  reason for delay, a party seeking certification (or a court certifying a

  ruling on its own motion) must show that a party will suffer some

  hardship or injustice that can be alleviated only by an immediate

  appeal. E.g., Huggins v. FedEx Ground Package Sys., Inc., 566 F.3d

  771, 774 (8th Cir. 2009); Braswell, 2 F.3d at 1335; Hogan v. Consol.

  Rail Corp., 961 F.2d 1021, 1025 (2d Cir. 1992); see also 10 Moore’s

  Federal Practice § 54.23[1][b], at 54-64; 10 Federal Practice and

  Procedure § 2659, at 104-05. Given that the Colorado judicial

  system shares the federal courts’ disdain for piecemeal appeals,

  that standard also should govern certifications under Colorado’s

  Rule 54(b).

¶ 34   We observe that although Colorado case law addressing the

  meaning of no just reason for delay is scant, what little there is

  appears to adhere substantially to the narrow approach taken by

  the federal courts. In Lytle, for example, the supreme court held

  that the district court didn’t abuse its discretion in finding no just

  reason for delay where the claims against one party that were

  subject to the judgment certified weren’t interrelated with the

  claims against the other party (in the sense that either party was a

                                     18
  necessary party to an action against the other) and nine years had

  elapsed between the injury giving rise to the claims and the entry of

  the certified judgment. 728 P.2d at 309.

¶ 35   In Messler v. Phillips, 867 P.2d 128 (Colo. App. 1993), the

  division found no abuse of discretion in certifying all of the

  plaintiff’s claims against the defendant, despite pending cross-

  claims by the defendant against a third party, because the plaintiff

  was an elderly woman and her claims had been pending for several

  years. Id. at 132.

¶ 36   And in Georgian Health Center, Inc. v. Colonial Painting, Inc.,

  738 P.2d 809 (Colo. App. 1987), the division found no abuse of

  discretion where there had been an earlier appeal of the dispute

  (involving a lessor and lessee), there was no dispute as to the

  amount that had been wrongfully paid to the lessor, and the lessor

  had wrongfully held the lessee’s money for many years. Id. at 811.

¶ 37   We turn, then, to the facts of this case and ask whether the

  court’s reasons for finding no just reason for delay show that the

  Allisons will suffer some hardship or injustice unless they are able

  to appeal now the default judgment on the Engels’ unjust

  enrichment counterclaim. They don’t.

                                    19
¶ 38   As discussed, the district court gave two reasons for

  concluding that there was no just reason for delay: (1) “avoid[ing]

  duplicative efforts”6 and (2) obtaining “a clear sense of direction in

  terms of the issues to be considered” at trial.

¶ 39   We construe the first reason as a concern that there would

  have to be a trial on the unjust enrichment counterclaim if the

  default judgment is reversed on appeal; an appellate decision on

  that judgment now would enable all claims to be tried in a single

  trial. In other words, if there is no appeal of that judgment now,

  but only an appeal after all claims have been resolved, and the

  appellate court reverses the default judgment while affirming the

  judgments on the other claims, there will have to be a later trial on

  the unjust enrichment counterclaim alone.

¶ 40   But this reason is plainly insufficient to justify certification

  because the same could be said about any case involving multiple

  claims or parties as to which a dispositive ruling is entered on one

  claim, or as to one party, before trial. Huggins, 566 F.3d at 774


  6 It isn’t clear whether the court referred to avoiding duplicative
  efforts as a reason justifying immediate appeal. But we’ll assume
  that it did. It also isn’t clear if the court intended to give two
  reasons or merely one. We’ll assume that it intended two reasons.
                                     20
  (holding that the potential for multiple trials does not support

  certification); Hogan, 961 F.2d at 1025-26 (same). As the Hogan

  court observed, the appropriate course for a district court to take if

  it wants to minimize the likelihood of a retrial is to take care in

  granting judgment before trial, “not to ask for an interim opinion

  from the court of appeals, thereby forcing successive appellate

  panels to review the case.” 961 F.2d at 1026.

¶ 41   We construe the second reason as a desire for guidance from

  this court on an issue as to which the district court is perhaps

  unsure. This reason appears to be closely related to the first in that

  the “direction” the district court seeks would enable it to best

  determine what claims need to be tried.

¶ 42   This reason is also plainly insufficient to justify certification.

  It’s simply not a proper function of Rule 54(b) certification to

  assuage a district court’s doubts about its decision or to provide

  “guidance” in the resolution of claims. Taco John’s of Huron, Inc. v.

  Bix Produce Co., 569 F.3d 401, 402 (8th Cir. 2009) (“We do not

  doubt that our resolution of this appeal would provide guidance to

  the parties and the court below. But the possibility that an early

  intervention might be helpful does not amount to the kind of

                                     21
  justification for exercising jurisdiction that our relevant cases

  require.”); see Hogan, 961 F.2d at 1025-26 (district court’s desire

  for appellate ruling on whether it had correctly assessed the state of

  the evidence did not justify certification); Harding Glass, 640 P.2d

  at 1127 (the appellate court is not “a type of ‘advisory board’”

  (quoting Cole v. Peterson Realty, Inc., 432 A.2d 752, 756 (Me.

  1981))).

¶ 43   The Allisons nonetheless assert that there is no just reason for

  delay because “precluding [them] from having their day in court on

  the Engels’ unjust enrichment counterclaim is simply inequitable

  under the circumstances here.” But the “inequitable

  circumstances” they assert are limited to the purported error in

  entering default judgment. They do not cite any authority for the

  proposition that the merits of the certified decision matter in

  determining whether there is no just reason for delay. Nor have we

  found any.

¶ 44   For their part, the Engels (who previously asserted that the

  certification was improper), responded to our order to show cause

  by urging us to consider the appeal and cross-appeal because



                                    22
  briefing is complete.7 But our jurisdiction depends on the

  correctness of the certification, and the stage of the proceeding at

  which jurisdiction is in question is irrelevant to that issue. We

  simply cannot exercise jurisdiction merely as a matter of

  convenience.

¶ 45   In sum, the district court didn’t give legally sufficient reasons

  for finding that there is no just reason for delay. The court’s

  reasons, considered singularly or together, don’t show that any

  party will suffer hardship or injustice unless an immediate appeal

  of the default judgment on the single counterclaim is allowed. We

  therefore conclude that the district court abused its discretion, and

  that we lack jurisdiction.

                               IV. Conclusion

¶ 46   The appeal and cross-appeal are dismissed.

       JUDGE DAILEY and JUDGE BERGER concur.




  7 At oral argument, however, the Engels’ counsel took the position
  that the requirements for certification weren’t satisfied.
                                     23
