United States District Court, D. Massachusetts
ORDER ON PLAINTIFF'S RULE 54(b) MOTION OR FOR
CERTIFICATION FOR APPEAL
Dennis Saylor IV United States District Judge.
a case arising out of an employment dispute. Plaintiff Elson
DeBarros has moved pursuant to Fed.R.Civ.P. 54(b) for entry
of partial judgment in order to take an interlocutory appeal
of an order of the Court. In the alternative, plaintiff seeks
a certification pursuant to 28 U.S.C. § 1292(b) to
permit him to take such an appeal.
seeks to appeal a Memorandum and Order issued on April 20,
2018. At the time, he was proceeding pro se,
although he is now represented by counsel. In its April 20
order, the Court dismissed the claims against defendants
Sergio Rodriguez and Margarita Nunez for lack of personal
jurisdiction and some (but not all) of the claims against
defendant Areas USA Boston, LLC for failure to state a claim
upon which relief can be granted. Plaintiff now seeks, in
substance, to appeal that decision.
Civ. P. 54(b) states as follows: “When an action
presents more than one claim for relief . . . or when
multiple parties are involved, the court may direct entry of
a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that
there is no just reason for delay.” The rule reflects
the “long-settled and prudential policy against the
scattershot disposition of litigation.” Spiegel v.
Trustees of Tufts Coll., 843 F.2d 38, 42 (1st Cir.
1988). In keeping with that policy, “entry of judgment
under the rule should not be indulged as a matter of routine
or as a magnanimous accommodation to lawyers or
litigants.” Id. Rather, “Rule 54(b)
should be employed with great circumspection.”
Gonzalez Figueroa v. J.C. Penney Puerto Rico, Inc.,
568 F.3d 313, 318 n.3 (1st Cir. 2009); see Nystedt v.
Nigro, 700 F.3d 25, 29 (1st Cir. 2012) (“Rule
54(b) should be applied sparingly.”). It is
“designed to be used where the problem and
circumstances are of an exceptional nature, . . . in order to
avoid some perceptible danger of hardship or injustice
through delay which would be alleviated by immediate
appeal.” Village West Assocs. v. Rhode Island
Housing & Mortg. Finance Corp., 641 F.Supp.2d 135,
137 (D.R.I. 2009) (internal quotation marks omitted) (quoting
Walden v. City of Providence, 450 F.Supp.2d 172, 174
plaintiff has not attempted to demonstrate any unusual danger
of hardship or injustice if separate judgment does not issue,
and no such danger is manifestly evident. Accordingly, the
Court will follow the normal practice of withholding final
judgment until all claims have been resolved. The Court will
deny plaintiff's motion without prejudice, and judgment
shall not enter against defendants on any claims until the
case has been adjudicated as to the remaining defendant.
See Frow v. De La Vega, 82 U.S. 552, 554 (1872);
see also Fed. R. Civ. P. 54(b).
has also requested an interlocutory appeal pursuant to 28
U.S.C. § 1292(b). Under § 1292(b), otherwise
unappealable district court orders may be certified for
interlocutory appeal, subject to the court's discretion,
if (1) the order sought to be appealed “involves a
controlling question of law”; (2) “there is
substantial ground for difference of opinion” regarding
that question of law; and (3) “an immediate appeal from
the order may materially advance the ultimate termination of
interlocutory appeal requires “exceptional
circumstances.” McGillicuddy v. Clements, 746
F.2d 76, 76 n.1 (1st Cir. 1984); see also 16 Wright
& Miller, Fed. Prac. and Proc. § 3929 at 435 and
n.16 (2012) (stating that interlocutory appeal is normally
reserved for complex cases to avoid protracted and expensive
litigation, such as antitrust matters). Even assuming that
the Court's April 20, 2018 order involved a controlling
question of law, plaintiff has not shown a “substantial
ground” for difference of opinion regarding that
question. A substantial ground for difference of opinion
exists “about an issue when the matter involves
‘one or more difficult and pivotal questions of law not
settled by controlling authority.'” Philip
Morris Inc. v. Harshbarger, 957 F.Supp. 327, 330 (D.
Mass. 1997) (quoting McGillicuddy, 746 F.2d at 76
n.1). Here, plaintiff has not even suggested that a
difference of opinion exists.
foregoing reasons, the motion for entry of partial judgment
is DENIED without prejudice to its renewal at an appropriate
time, and the motion for certification of an interlocutory
appeal is DENIED.