United States District Court, D. Massachusetts
TOXICS ACTION CENTER, INC. et al, Plaintiffs,
CASELLA WASTE SYSTEMS, INC., SOUTHBRIDGE RECYCLING & DISPOSAL PARK, INC. and THE TOWN OF SOUTHBRIDGE Defendants
ORDER ON PLAINTIFFS' MOTION FOR CERTIFICATION OF
IMMEDIATE APPEAL UNDER FED. R. CIV. P. 54(B) OR, IN THE
ALTERNATIVE, FOR CERTIFICATION OF INTERLOCUTORY APPEAL UNDER
28 U.S.C. §1292(B)
TIMOTHY S. HILLMAN, U.S. DISTRICT JUDGE.
action is brought by two non-profit environmental
organizations, Toxics Action Center, Inc. (“Toxics
Action”) and Environment America, Inc. d/b/a
Environment Massachusetts (“Environment
Massachusetts”) (collectively, the “Group
Plaintiffs”) and ninety-nine individuals who reside or
recently resided near the Landfill in Charlton (the
“Individual Plaintiffs”). Plaintiffs brought the
action under the citizen suit provisions of two federal
environmental statutes, the Resource Conservation and
Recovery Act, 42 U.S.C. § 6901 et seq.
(“RCRA”), and the Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act,
” or “CWA”).
Casella Waste Systems, Inc. and Southbridge Recycling and
Disposal Park, Inc. (“SRDP Defendants”) and the
Town of Southbridge (“the Town”) (collectively,
“the Defendants”) moved to dismiss claims alleged
against them under the CWA (by Group Plaintiffs only) and the
RCRA (by Group Plaintiffs and Individual Plaintiffs)
contending that this Court lacks subject matter jurisdiction
pursuant to Fed.R.Civ.P. 12(b)(1) to adjudicate the CWA
(Count 1) and RCRA (Count 2) claims. Defendants also argued
that the allegations fail to state a claim upon which relief
can be granted pursuant to Fed.R.Civ.P. 12(b)(6). The
remaining claims, Counts III through VI, involve state and
common law claims of property damage, nuisance, trespass and
September 30, 2018, I granted those motions. See Mem. Of Dec.
and Order On Defs' Casella Waste Systems and Southbrige
Recycling and The Town of Southbridge's Mot. To Dismiss
(Docket No. 73) (“Memorandum of Decision and
Order”). On October 3, 2018, I amended my Memorandum of
Decision and Order to retain jurisdiction over
Plaintiffs' state law claims (Docket 74). Plaintiff then
moved for Entry of Judgment under Fed.R.Civ.P. 54(b), or in
the alternative, for Certification of Interlocutory Appeal
under 28 U.S.C. § 1292(b) and for a stay of proceedings
54(b) permits the entry of judgment, and thus an appeal, on
fewer than all the claims in a multi-claim action. Yet Rule
54(b) notwithstanding, there is a long-settled and prudential
policy against the scattershot disposition of litigation.
Spiegel v. Trustees of Tufts College, 843 F.2d 38
(1st Cir. 1988), citing Pahlavi v.
Palandjian, 744 F.2d 902, 903 (1st. Cir.
1984). In evaluating whether to enter a separate and final
judgment, a court must first determine that “the ruling
underlying the proposed judgment is final.” Nystedt
v. Nigro, 700 F.3d 25, 29 (1stCir. 2012).
Next, “Rule 54(b) requires the trial court to make an
express determination that there is ‘no just reason for
delay,' based on the circumstances of the case.
Id. at 30. In making such a determination, courts
examine “any interrelationship or overlap among the
various legal and factual issues involved” and
“any equities and efficiencies implicated by the
requested piecemeal review.” State Street Bank
& Trust Co. v. Brockrim, Inc., 87 F.3d 1487, 1489
(1st Cir. 1996). The First Circuit has stated that
Rule 54(b) certification should be used sparingly. Nystedt,
700 F.3d at 29. Assuming without deciding that the claims
have the requisite finality to allow an appeal, the analysis
turns to the parties and the relationship between the claims.
Notwithstanding a separate appeal, the action remains pending
in this Court for all parties. “It will be a rare case
where Rule 54(b) can appropriately be applied when the
contestants on appeal remain, simultaneously, contestants
below.” Spiegel, 843 F.2d at 44. Furthermore, the
factual underpinnings of the claims are intertwined; Count II
incorporates many of the factual averments of the previous
count, as do each of the successive four counts. Most of the
counts also have overlapping prayers for relief. Because the
claims are closely related to a sufficient degree and both
parties would remain involved at both levels of litigation, I
find there is “just reason for delay” in entering
judgment on Counts I and II.
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
the litigation.” The First Circuit has a long-held a
general rule prohibiting interlocutory appeals, particularly
in motions to dismiss. See Caraballo-Seda v. Municipality
of Hormigueros, 395 F.3d 7, 8 (1st Cir.
2005). “We wish to point out that we would not normally
allow an appeal from a denial of a motion to dismiss, and,
with the benefit of hindsight, we admit our error in doing so
in this case. We continue to adhere to the view that
interlocutory certification under 28 U.S.C. § 1292(b)
should be used sparingly and only in exceptional
circumstances […]. McGillicuddy v. Clements,
746 F.2d 76, 77 (1st Cir. 1984). Because this case
does not present exceptional circumstances, such an appeal
will not be granted.
foregoing reasons, the motion for entry of partial judgment
is DENIED or for certification of ...