CBD & Sons, Ltd. v. Setteducati
| Decision Date | 31 March 2020 |
| Docket Number | Case No. 3:18-cv-4276-BRM-DEA |
| Parties | CBD & SONS, LTD., Plaintiff, v. RICHARD SETTEDUCATI, SHORE LENDING GROUP, LLC, GMH MORTGAGE SERVICES, LLC, CHARLES A. LIBERTI, RAYMOND R. MILLER, SR., and BLUE RIBBON APPRAISALS, LLC, Defendants. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
Before this Court is Plaintiff CBD & Sons, Ltd.'s ("Plaintiff" or "CBD") Motion for a Certificate of Appealability pursuant to Federal Rule of Civil Procedure 54(b) to certify as a final judgment the portion of this Court's Opinion and Order dated January 31, 2019 (the "Order") dismissing this action against Defendants Charles A. Liberti ("Liberti"), Raymond R. Miller, Sr. ("Miller") and Blue Ribbon Appraisals, LLC ("Blue Ribbon," and, together with Liberti and Miller, the "Blue Ribbon Defendants") or, in the alternative, to sever the claims against the Blue Ribbon Defendants and transfer them to the U.S. District Court for the District of Connecticut, pursuant to Fed. R. Civ. P. 21 and 28 U.S.C. § 1631. (ECF No. 46.) The Blue Ribbon Defendants oppose the Motion. (ECF No. 47.) CBD filed a Reply. (ECF No. 48.) Having reviewed the submissions filed in connection with the motion and having declined to hold oral argument pursuant to Federal Rule of Civil Procedure 78(b), for the reasons set forth below and for good cause shown, CBD's Motion for a Certificate of Appealability is GRANTED.
Because the Court writes for the parties, the Court refers to and adopts the complete recitation of the facts of this matter contained in this Court's Opinion of January 31, 2019. (ECF No. 30 at 3-7.)
On March 27, 2018, CBD filed a Complaint (the "Complaint") before this Court asserting fraud against Defendant Richard Setteducati ("Setteducati"), GMH Mortgage Services, LLC, ("GMH") and Shore Lending Group, LLC ("Shore Lending") (collectively, the "GMH Defendants") (Count One), breach of fiduciary duty against the GMH Defendants and the Blue Ribbon Defendants (Count Two), unjust enrichment against all Defendants (Count Three), breach of contract against all Defendants (Count Four), a violation of the New Jersey Consumer Fraud Act ("NJCFA") against all Defendants (Count Five), negligence against the Blue Ribbon Defendants (Count Six), and professional malpractice against the Blue Ribbon Defendants (Count Seven). (See Complaint (ECF No. 1).)1
On June 4, 2018, the Blue Ribbon Defendants filed a Motion to Dismiss each cause of action asserted against them, arguing the Court lacked personal jurisdiction over them and thatvenue in New Jersey was improper. (ECF No. 20.) Concurrently, the GMH Defendants filed a Motion to Dismiss asserting a lack of subject-matter jurisdiction and that the Complaint failed to state a cause of action upon which relief can be granted. (ECF No. 21.) On June 5, 2018, Defendant Setteducati filed an Answer to the Complaint. (ECF No. 22.)
In its January 2019 Opinion, this Court granted the Motion to Dismiss the Blue Ribbon Defendants for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 4(k), while granting in part and denying in part the GMH Defendants' Motion to Dismiss. (ECF No. 30.) As a result of that Opinion, Counts Two (Breach of Fiduciary Duty) and Three (Unjust Enrichment) were dismissed as to all defendants, while Counts Six (Negligence) and Seven (Malpractice) were dismissed against the Blue Ribbon Defendants, leaving only Counts One (Fraud), Four (Breach of Contract), and Five (Consumer Fraud Act) remaining and the GMH Defendants as the only defendants extent. (See Order (ECF No. 31).)
On February 28, 2019, CBD filed a Notice of Appeal of that decision to the United States Court of Appeals for the Third Circuit. (ECF No. 34.) CBD represents in its Brief in Support of the Motion that the Third Circuit issued an order on March 6, 2019 noting that the Order appealed from "does not dismiss all claims as to all parties and has not been certified under Fed. R. Civ. P. 54(b)." (ECF No. 46-1 at 4.) The Third Circuit dismissed the appeal in late May 2019 citing CBD's "failure to file case-opening forms." (ECF No. 39.) This Motion followed in August 2019. (ECF No. 46.)
A. Federal Rule of Civil Procedure 54(b)
Generally, an Order terminating fewer than all claims or all defendants "does not constitute a 'final' order" required to confer jurisdiction over the matter on a United States Court of Appeal.Elliott v. Archdiocese of New York, 682 F. 3d 213, 219 (3d. Cir. 2012) (citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 431-32, 76 S. Ct. 895, 897-98, 100 L.Ed. 1297 (1956); Carter v. City of Phila., 181 F. 3d 339, 343 (3d Cir. 1999). But, pursuant to Federal Rule of Civil Procedure 54, "a district court may convert an order adjudicating less than an entire action to the end that it becomes a 'final' decision over which a court of appeals may exercise jurisdiction under 28 U.S.C. § 1291." Id.
Rule 54 provides, in pertinent part:
When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—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. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
The Supreme Court has set out a two-step process for district courts to follow in making determinations pursuant to Rule 54. First, a "district court must determine that it is dealing with a 'final judgment.'" Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S. Ct. 1460, 64 L.Ed.2d 1 (1980). By final judgment, the Supreme Court means "[i]t must be a 'judgment' in the sense that it is a decision upon a cognizable claim for relief, and it must be 'final' in the sense that it is 'an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 76 S. Ct. 895, 100 L.Ed. 1297 (1956)). Upon a finding of finality, "the district court must then determine whether there is 'any just reason for delay.'" Id. at 8. An order that "purports to certify a judgment as finalunder Rule 54(b)" but lacks this express determination about the "just reason for delay" prong required by the Rule will deprive a court of appeal of jurisdiction "because it is not a 'final' judgment under either Rule 54(b) or under the traditional standards of 28 U.S.C. § 1291." Archdiocese of New York, 682 F. 3d at 221.
In the Third Circuit, "Rule 54(b) does not require that a district court use the talismanic phrase 'there is no just reason for delay.'" Archdiocese of New York, 682 F. 3d at 225. Rather, a district court "may state that it has determined expressly that 'there is no just reason for delay' using those precise words, or it may paraphrase or use language 'of an indisputably similar effect,' so long as the district court's order clearly contains the "express" determination Rule 54(b) requires." Id. (quoting Berckeley Inv. Group, Ltd. v. Colkitt, 259 F. 3d 135, 141 (3d Cir. 2001).)
The Supreme Court cautions that "[n]ot all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims." Id. Indeed, final-judgment certification under Rule 54(b) is the exception, not the rule, to the usual course of proceedings in a district court. Archdiocese of New York, 682 F.3d at 220. "It is left to the sound judicial discretion of the district court to determine the 'appropriate time' when each final decision in a multiple claims action is ready for appeal. Id. The guiding principal for district courts to consider is "the interest of sound judicial administration." Id.
The Third Circuit has held that the "classic definition of a 'final decision' is one that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Eisai Inc. v. Zurich American Ins. Co., No. 12-7208, 2015 WL 113372, at *4 (D.N.J. 2015) (citing Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 460 F. 3d 470, 476 (3d Cir. 2006) (quoting Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S. Ct. 1712, 135 L.Ed.2d 1 (1996)). This finality requirement "is often described as serving 'the important purpose of promoting efficient judicialadministration.'" Weber v. McGrogan, 939 F. 3d 232, 236 (3d. Cir. 2019) (citing Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S. Ct. 669, 66 L.Ed.2d 571 (1981).
However, "the question of what constitutes a 'claim' for purposes of Rule 54(b) is nowhere precisely defined." Kapossy v. McGraw-Hill, Inc., 942 F. Supp. 996, 999 (D.N.J. 1996)
For example, "an order dismissing a complaint without prejudice is not a final and appealable order, unless the plaintiff no longer can amend the complaint because, for example, the statute of limitations has run, or the plaintiff has elected to stand on the...
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