        10-2812-cv
        Guippone v. BH S&B Holdings et al.

                                    UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                      AMENDED SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
     ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
     AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1              At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2      Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3      on the 8th day of June, two thousand eleven.
 4
 5      PRESENT:
 6
 7              ROSEMARY S. POOLER,
 8              DEBRA ANN LIVINGSTON,
 9                             Circuit Judges,
10
11              JED S. RAKOFF,
12                              District Judge.*
13      ______________________________________________________
14
15      MICHAEL GUIPPONE, on behalf of himself
16      and all others similarly situated,
17
18                                      Plaintiff-Appellant,

19                      -v.-                                                        No. 10-2812-cv
20
21      BAY HARBOUR MANAGEMENT LC, BH S&B INC.,
22      BAY HARBOUR MASTER LTD., YSOF S&B INVESTOR, LLC,
23      YORK CAPITAL MANAGEMENT, L.P.,

24                                      Defendants-Appellees,


                *
                  The Honorable Jed S. Rakoff of the United States District Court for the Southern
        District of New York, sitting by designation.

                                                          1
 1   BH S&B HOLDINGS, LLC, BHY S&B HOLDCO LLC,
 2   BHY S&B INTERMEDIATE HOLDCO LLC,

 3                           Defendants.**
 4   ______________________________________________________
 5
 6                                        JACK A. RAISNER (Rene S. Roupinian, on the brief), Outten
 7                                        & Golden LLP, New York, New York, for Plaintiff-
 8                                        Appellant.
 9
10                                        JUSTIN S. ANTONIPILLAI (Richard P. Swanson and Jonathan
11                                        N. Francis, on the brief), Arnold & Porter LLP,
12                                        Washington, D.C., for Defendants-Appellees York Capital
13                                        Management, L.P. and YSOF S&B Investor, LLC.

14                                        Israel Dahan, Cadwalader, Wickersham & Taft LLP, New
15                                        York, New York, for Defendants-Appellees Bay Harbour
16                                        Management LC, Bay Harbour Master Ltd. and BH S&B
17                                        Inc.
18

19          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED

20   that the appeal be DISMISSED for lack of appellate jurisdiction.

21          Plaintiff-Appellant Michael Guippone appeals from an order of the United States District

22   Court for the Southern District of New York (McMahon, J.) entering partial final judgment in favor

23   of Defendants-Appellees under Fed. R. Civ. P. 54(b). Guippone brought this action individually and

24   on behalf of all others similarly situated under the Worker Adjustment and Retraining Notification

25   (“WARN”) Act, Pub. L. No. 100-379, 102 Stat. 890 (1988), codified at 29 U.S.C. §§ 2101-09,

26   against, inter alia, Defendants-Appellees Bay Harbour Management LC; Bay Harbour Master Ltd.;

27   BH S&B Inc.; York Capital Management, LP; and YSOF S&B Investor, LLC.



            **
               The Clerk of Court is directed to amend the official caption to conform with the
     caption above.

                                                     2
1            In a Decision and Order dated May 18, 2010, the district court granted Defendants-

2    Appellees’ second motion to dismiss Guippone’s complaint for failure to state a claim pursuant to

3    Fed. R. Civ. P. 12(b)(6).1 The district court then entered partial final judgment in favor of

4    Defendants-Appellees in an order dated June 11, 2010. We assume the parties’ familiarity with the

5    underlying facts and procedural history.

6            On appeal, Guippone argues that the district court’s entry of partial final judgment in favor

7    of Defendants-Appellees under Rule 54(b) was improper because the court failed to give a reasoned

 8   explanation for entering partial final judgment. Before adjudicating the merits of an appeal, we must

 9   determine whether we have jurisdiction. See Muhammad v. City of N.Y. Dep’t of Corr., 126 F.3d

10   119, 122 (2d Cir. 1997). We review a district court’s grant of Rule 54(b) certification for abuse of

11   discretion. See Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 629 (2d Cir. 1991); see also

12   Hudson River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d 414, 419 (2d Cir. 1989) (noting

13   that we “accord considerable deference to the district court” in determining whether there was “no

14   just reason for delaying final judgment on the appealed claims”).

15           Section 1291 of Title 28 of the United States Code provides that “[t]he courts of

16   appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts.” 28

17   U.S.C. § 1291. Thus, “[u]nless the District Court directs entry of a final judgment, ‘any order or

18   other decision, however designated, that adjudicates fewer than all the claims or the rights and

19   liabilities of fewer than all the parties does not end the action’ [and] is, by definition, interlocutory.”

20   City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 452 (2d Cir. 2008) (quoting Fed. R. Civ.


             1
             In the same Decision and Order, the district court denied Defendant BHY S&B HoldCo
     LLC’s motion to dismiss Guippone’s complaint. Defendants BH S&B Holdings LLC and BHY
     S&B Intermediate HoldCo did not file or join a motion to dismiss.

                                                         3
 1   P. 54(b)), rev’d on other grounds by Hemi Grp., LLC v. City of New York, 130 S. Ct. 983 (2010).

 2   Rule 54(b), however, provides that “[w]hen an action presents more than one claim for

 3   relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties

 4   are involved, the court may direct entry of a final judgment as to one or more, but fewer than all,

 5   claims or parties only if the court expressly determines that there is no just reason for delay.” Fed.

 6   R. Civ. P. 54(b) (emphasis added).

 7          We have “repeatedly held that in making the ‘express determination’ required under Rule

 8   54(b), district courts should not merely repeat the formulaic language of the rule, but rather should

 9   offer a brief, reasoned explanation.” Harriscom, 947 F.2d at 629 (internal quotation marks omitted);

10   see also Hudson River Sloop, 891 F.2d at 419 (“[M]ere recitation of the language of the rule that

11   ‘there is no just reason for delay’ is insufficient to certify a claim under Rule 54(b).”). “Since the

12   appellate court may review the Rule 54(b) certification for abuse of discretion, it does not suffice

13   for the district court to announce its determination that ‘there is no just cause for delay’ in

14   conclusory form,” and instead “its certification must be accompanied by a reasoned, even if brief,

15   explanation of its conclusion.” Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir. 1987). The absence

16   of such an explanation justifies dismissal of the appeal for lack of jurisdiction. See, e.g., O’Bert ex.

17   rel. Estate of O’Bert v. Vargo, 331 F.3d 29, 41 (2d Cir. 2003) (“[W]e have frequently dismissed

18   appeals where no reasoned explanation for the Rule 54(b) judgment was given.”) (citing cases).

19            Here, the district court’s order directing entry of partial final judgment was clearly

20   inadequate. The order simply states, “[u]pon consideration of the Bay Harbour and York Capital

21   Defendants’ Motion For Entry of Partial Final Judgment, it is hereby ORDERED that . . . The

22   Motion is GRANTED.” The district court made no statement – let alone a conclusory one – as to


                                                        4
 1   why there was “no just reason for delay.” Cf. Smith ex rel. Smith v. Half Hollows Hills Cent. Sch.

 2   Dist., 298 F.3d 168, 171 (2d Cir. 2002) (“Although the district court made a conclusory statement

 3   ‘finding that there is no just reason for delay,’ that statement was clearly inadequate.”). In fact, the

 4   district court’s order does not even mention Rule 54(b). Moreover, given the overlapping factual

 5   and legal issues in this case, the reasons for entry of partial final judgment are not so “obvious” that

 6   a reasoned explanation “would result only in unnecessary delay in the appeal process.” Fletcher v.

 7   Marino, 882 F.2d 605, 609 (2d Cir. 1989) (excusing inadequate explanation because need for

 8   expedition and nature of public concern were obvious); see also St. Paul Fire & Marine Ins. Co. v.

 9   PepsiCo, Inc., 884 F.2d 688, 693-94 (2d Cir. 1989) (excusing inadequate explanation because, inter

10   alia, reason for certification was “readily apparent from the record” and appeal presented “a distinct

11   and separable part of the suit”). Consequently, the district court’s Rule 54(b) certification was

12   improper in this case.2

13          Defendants-Appellees contend, however, that the entry of partial final judgment was proper

14   pursuant to Vona v. Cnty. of Niagara, 119 F.3d 201 (2d Cir. 1997). Defendants-Appellees’ reliance

15   on Vona is misplaced. In Vona, although the district court failed to expressly determine that there

16   was “no just reason for delay” as required by Rule 54(b), we concluded that there was a final

17   judgment pursuant to 28 U.S.C. § 1291, because the case was marked “closed,” making clear that

18   the district court intended to take no further action in adjudicating the case. See Vona, 119 F.3d at

19   205-06; see also Houbigant, Inc. v. IMG Fragrance Brands, LLC, 627 F.3d 497 (2d Cir. 2010) (per

20   curiam) (“[I]t was clear to us in Vona that the district court intended to take no further action in



            2
              In reaching this conclusion, we note our receipt and full consideration of Appellees’ most
     recent letter, filed after oral argument and pursuant to Fed. R. App. P. 28(j).

                                                        5
1   adjudicating the case.”). Here, in addition to its failure to offer a reasoned explanation for directing

2   entry of partial final judgment, the district court never closed – nor gave any indication that it

3   intended to cease adjudicating – the present case. In fact, proceedings in this action have been

4   ongoing since Guippone filed his notice of appeal. Defendants-Appellees’ argument is therefore

5   without merit.

6          For the foregoing reasons, this appeal is DISMISSED for lack of appellate jurisdiction.

7                                                          FOR THE COURT:
8                                                          Catherine O’Hagan Wolfe, Clerk
9




                                                       6
