
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1777               SARGENT D. NICHOLS, INDIVIDUALLY AND AS HE IS TRUSTEE OF                        ANDOVER NORTHWAY REALTY TRUST, ET AL.,                               Plaintiffs, Appellants,                                          v.                                    THE CADLE CO.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Gilbert R. Hoy, Jr. for appellants.               ___________________               Alvin  S. Nathanson,  with whom  Shannon M.  Fitzpatrick and               ___________________              _______________________          Nathanson & Goldberg, PC were on brief, for appellee.          ________________________                              _________________________                                  December 19, 1996                              _________________________                    Per Curiam.   This  appeal illustrates once  again that                    Per Curiam.                    __________          the  overly generous  use of  Fed. R.  Civ. P.  54(b) by  a well-          intentioned district  judge can create a  minefield for litigants          and  appellate courts alike.  Though the appeal itself amounts to          an exercise in futility, see infra, it should serve as a reminder                                   ___ _____          that haste  makes waste.   There are often  untoward consequences          when  judges  too readily  acquiesce  in the  suggested  entry of          "partial" final judgments.                    The  basic  procedural  facts   are  undisputed.    The          plaintiffs  owned  valuable  commercial  real estate  located  in          Peabody,  Massachusetts.  After  their original  lender plummeted          into receivership,  the defendant Cadle Co.  (Cadle) acquired the          mortgage  on  the property  from  the  Federal Deposit  Insurance          Corporation.  Inasmuch as the mortgage note was in arrears, Cadle          foreclosed on the property and took possession of it.                    The plaintiffs  sued, claiming inter alia  breach of an                                                   _____ ____          agreement  to  forbear  (count  1),  wrongful  interference  with          economic  relationships (count  2), fraud  (count 3),  and unfair          trade  practices in  violation of  Mass. Gen.  L. ch.  93A,    11          (count 5).   The plaintiffs  also sought specific  performance of          the  supposed  forbearance  agreement (count  4)  and declaratory          relief (count 6).   All six counts implicated the  mortgage note,          the foreclosure, and Cadle's conduct  in respect thereto.   Cadle          denied the plaintiffs' allegations, pointed to the relatively low          price   that   the  property   had   brought   at  auction,   and          counterclaimed  for the deficiency that it thought was due on the                                          2          mortgage note.                    After discovery had been  conducted, the district court          granted  partial summary judgment in Cadle's  favor.  This ruling          dispatched counts  1, 2, 3,  4, and 6  of the complaint,  leaving          count  5  and  Cadle's   counterclaims  unaffected.    The  court          thereafter  certified the  judgment as  final under  Rule 54(b).1          Although the  court made a rote recitation that there was no just          reason  to delay the entry of judgment, it failed to substantiate          that  conclusion.     Using  the  district   court's  Rule  54(b)          certificate  as  a springboard,  the  plaintiffs  prosecuted this          appeal.                    It is trite, but  true, that piecemeal appellate review          invites  mischief.   Because  the    practice  poses  a  host  of          potential problems  we  have warned,  time and  again, that  Rule          54(b)  should be  used sparingly.   See, e.g.,  Consolidated Rail                                              ___  ____   _________________          Corp.  v. Fore River Ry. Co., 861  F.2d 322, 325 (1st Cir. 1988);          _____     __________________          Spiegel v.  Trustees of Tufts  Coll., 843 F.2d  38, 43  (1st Cir.          _______     ________________________          1988);  Santa Maria v. Owens-Ill.,  Inc., 808 F.2d  848, 854 (1st                  ___________    _________________          Cir. 1986).  We have also admonished that a district court intent                                        ____________________               1Ordinarily,  a  judgment is  final  (and,  thus, appealable          under  28 U.S.C.   1291)  only if it  conclusively determines all          claims of  all parties to  the action.   See generally  Catlin v.                                                   ___ _________  ______          United States, 324  U.S. 229,  233 (1945) (stating  that a  final          _____________          decision  generally is  one  which "ends  the  litigation on  the          merits  and leaves nothing  for the court  to do but  execute the          judgment").  Rule 54(b) limns an exception to this principle.  It          provides in relevant part:   "When more than one claim for relief          is presented in an action . . . the court may direct the entry of          a final  judgment as to  one or  more but fewer  than all of  the          claims or parties . . . upon an express determination  that there          is no just reason for delay and upon an express direction for the          entry of [such a] judgment. . . ."                                          3          upon setting the stage for the fragmentation of appellate  review          must explain the need for entering an earlier-than-usual judgment            at least in cases where the explanation is not obvious from the          record.  See Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39                   ___ _________    ______________________          (1st  Cir. 1991);  Spiegel,  843 F.2d  at 43  &  n.4; Pahlavi  v.                             _______                            _______          Palandjian, 744 F.2d 902, 905 (1st Cir. 1984).          __________                    In  this  instance  the district  court  volunteered no          meaningful  explanation for  its  determination  that a  judgment          should  enter even though a substantial part of the case remained          untried,2 and  no good reason for the  certification is apparent.          The  claims adjudicated  on  summary judgment  and certified  for          appeal are inextricably intertwined  with the claims left pending          in the district court, and the parties to both sets of claims are          precisely the  same.  As we predicted in Spiegel, 843 F.2d at 44,                                                   _______          "[i]t will be a  rare case where Rule 54(b)  can appropriately be          applied when  the contestants  on appeal  remain, simultaneously,          contestants below."   This  case falls within  the generality  of          that  prediction,  not within  the  long-odds  exception to  it.3                                        ____________________               2The district court did note in its certificate that all the          counts  on  which  it   granted  summary  judgment  involved  the          propriety of the foreclosure.   But that tells us  very little as          the  claims that remained likewise involved  the propriety of the          foreclosure.     The  court   also  noted  the   desirability  of          discharging the lis  pendens that the  plaintiffs had filed,  but                          ___  _______          gave no  reason to suspect  that any particular  urgency attended          this discharge.               3This case offers a testimonial to the wisdom that underlies          the Spiegel doctrine.   After the appeal had been  fully briefed,              _______          the  district court conducted a trial on the remaining claims and          counterclaims.   Cadle prevailed  across the board.   Immediately          thereafter  it  moved to  dismiss the  appeal  on grounds  of res          judicata and collateral  estoppel.   We do not  reach the  issues                                          4          Finally,  the   record  reflects  no  special   circumstances  or          overriding equities that might counsel  in favor of permitting an          immediate appeal from a plainly interlocutory order.                    We   need  go  no  further.     Since  the  Rule  54(b)          certificate  in  this case  was  improvidently  granted, we  lack          appellate jurisdiction.   See Consolidated Rail, 861 F.2d at 326;                                    ___ _________________          Spiegel, 843 F.2d at 46.          _______                    The appeal  is dismissed without prejudice  for want of                    _______________________________________________________          appellate jurisdiction.  All parties shall bear their own costs.          ______________________   ______________________________________                                        ____________________          raised  in the motion to dismiss, but its content illuminates the          Serbonian  bog into  which  appellate courts  can  be plunged  by          relaxed  application of the  rigorous standards that  ought to be          associated with Rule 54(b) certifications.                                          5
