
USCA1 Opinion

	




          March 14, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 94-1175                                            IN RE:  UNITED CHAIR,                                     Petitioner.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                               ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                        Torruella and Boudin, Circuit Judges.                                              ______________                                 ___________________               Maria Soledad Ramirez-Becerra and Mercado & Soto on Petition               _____________________________     ______________          for  Writ  of  Mandamus and  Addendum  to  Petition  for Writ  of          Mandamus.                                  __________________                                  __________________                 Per  Curiam.    Petitioner  seeks  a  writ  of  mandamus                 ___________            directing the district court to set aside its order, pursuant            to Fed. R. Civ. P. 42(b),  separating the trial of the claims            brought by plaintiffs against petitioner from the third party            claims brought by petitioner for contribution and indemnity.                  To be  entitled to  the writ,  a petitioner must,  inter                                                                    _____            alia, "ordinarily demonstrate that something about the order,            ____            or  its  circumstances  would  make  an   end-of-case  appeal            ineffectual or  leave legitimate interests unduly  at risk."             In re Pearson, 990 F.2d 653,  656 (1st Cir. 1993) (quoting In            _____________                                              __            re  Recticel Foam  Corp., 859  F.2d 1000,  1005-06 (1st  Cir.            _______________________            1988)).  Petitioner has failed to show make such a showing.                   The  order  for  separate  trials,  rather  than  ending            petitioner's  right to  pursue its  claims against  the third            party  defendants,  establishes   petitioner's  right  to   a            separate trial and judgment.  See 6 C. Wright, A. Miller & M.                                          ___            Kane, Federal Practice and  Procedure   1463, at 473  (1990).                  _______________________________            Furthermore,  unless a  lesser judgment  is certified  by the            court, there will be  no final judgment until all  the issues            in  the whole  case have  been determined.   Fed. R.  Civ. P.            54(b).    In  either  case,  upon  entry  of  final judgment,            petitioner  has the  right to  appeal the  grant of  separate            trials  and to secure a new trial should the separation prove            to  have been  an abuse  of discretion.   See,  e.g., Franchi                                                      ___   ___   _______                                         -2-            Constr.  Co. v. Combined Ins. Co.,  580 F.2d 1, 6-8 (1st Cir.            ___________     ________________            1978) (ordering new trial upon finding that grant of separate            trial was abuse  of discretion).   The fact  that a  separate            trial will entail delay in any possible recovery against  the            third  party defendants  and more  burdensome  litigation for            petitioner is insufficient, by  itself, to justify the remedy            of mandamus.  See In re Pearson, 990 F.2d at 661.                            ___ _____________                 Petitioner's request for a writ of mandamus is denied.1                                                                ______                                            ____________________            1.  For similar reasons, we decline  to consider petitioner's            challenge  to the  separation  order  under  the  "collateral            order"  doctrine.  See  In re Harrington, 992  F.2d 3, 6 (1st                               ___  ________________            Cir.  1993)  (collateral  order doctrine  cannot  be  invoked            unless  challenged ruling  would  result in  irreparable harm            incapable of vindication on appeal).                                         -3-
