Kapossy v. McGraw-Hill, Inc.

• Decision Date: 04 October 1996
• Docket Number: Civil Action No. 93-5277.
• Citation: 942 F.Supp. 996
• Parties: Stephen KAPOSSY, Plaintiff, v. McGRAW-HILL, INC., Defendant.
• Court: U.S. District Court — District of New Jersey

942 F.Supp. 996

Stephen KAPOSSY, Plaintiff, v. McGRAW-HILL, INC., Defendant.

Civil Action No. 93-5277.

United States District Court, D. New Jersey.

October 4, 1996.

COPYRIGHT MATERIAL OMITTED

Gregory S. Schaer, Law Offices of Linda B. Kenney, Red Bank, NJ, for Plaintiff.

Kerry M. Parker, Crummy, Del Deo, Dolan, Griffinger & Vecchione, Newark, NJ, for Defendant.

OPINION

ORLOFSKY, District Judge:

In this employment discrimination case, plaintiff seeks entry of final judgment under Fed.R.Civ.P. 54(b) of certain issues resolved by this court's Opinion and Order on Defendant's Motion for Summary Judgment, filed March 21, 1996. See Kapossy v. McGraw-Hill, Inc., 921 F.Supp. 234 (D.N.J.1996). Plaintiff also seeks certification of several in limine rulings under 28 U.S.C. § 1292(b), and a stay of this action pending interlocutory appeal. The challenged evidentiary rulings were announced in a Bench Opinion read into the record on August 7, 1996, and were memorialized in an Order filed on August 8, 1996.¹ The facts of this case are fully set forth in this court's Opinion on summary judgment and will not be reiterated here. See Kapossy, 921 F.Supp. at 238-39.

While plaintiff's motion for certification under § 1292(b) presents no novel issue of law his motion seeking a Rule 54(b) Certification requires this court to traverse the admittedly uncertain terrain of the Rule's "multiple claim" requirement. For the reasons set forth below, plaintiff's motions will be denied.

I. Rule 54(b) Certification

Federal Rule of Civil Procedure 54(b) provides one avenue for immediate appeal to a Circuit Court of Appeals, subject only to that court's deferential scrutiny of the district court's decision to enter final judgment. The Rule provides, in pertinent part:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.

Fed.R.Civ.P. 54(b).

This court is required to undertake a two-step analysis in deciding whether to direct the entry of final judgment pursuant to Rule 54(b). First, "finality" must be satisfied, "in the sense that [the judgment] is `an ultimate disposition of an individual claim entered in the course of a multiple claims action.'" Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980) (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956)). If this initial hurdle is cleared, the court must determine that the matter is "ready for appeal ... tak[ing] into account judicial administrative interests as well as the equities involved." Id., 446 U.S. at 8, 100 S.Ct. at 1465. In making this latter determination, the district court is obligated to explain the exercise of its discretion. See Cemar, Inc. v. Nissan Motor Corp., 897 F.2d 120 (3d Cir. 1990) (dismissing appeal, vacating order, and remanding when the district court failed to explain its reason for the Rule 54(b) certification).

In the present case, this court need not, indeed, may not even exercise the discretion implicit in the second prong of the Rule 54(b) analysis, because Kapossy cannot demonstrate that his is a "multiple claim" action, and "Rule 54(b) `does not' apply to a single claim action." Liberty Mutual v. Wetzel, 424 U.S. 737, 742-43, 96 S.Ct. 1202, 1205-06, 47 L.Ed.2d 435 (1976) (quoting Sears, Roebuck, 351 U.S. at 435, 76 S.Ct. at 899).

A determination that the action involves "multiple claims" is a jurisdictional prerequisite to the court of appeals' consideration of an interlocutory appeal pursuant to Fed.R.Civ.P. 54(b). Allegheny County Sanitary Auth. v. United States EPA, 732 F.2d 1167, 1172 (3d Cir.1984). Admittedly, the question of what constitutes a "claim" for purposes of Rule 54(b) is nowhere precisely defined. See Sussex Drug Products v. Kanasco, Ltd., 920 F.2d 1150 (3d Cir.1990). The Third Circuit has even declared that "uncertainty is the rule." Id. at 1154.

Be that as it may, a useful starting point in seeking a definition of what constitutes a "single claim" for purposes of Fed.R.Civ.P. 54(b) is, as always, the decisions of the United States Supreme Court. Although the High Court has declined to "attempt any definitive resolution of the meaning of what constitutes a claim for relief," it, nevertheless, has stated that, "a complaint asserting only one legal right, even if seeking multiple remedies for the alleged violation of that right, states a single claim for relief." Liberty Mutual, 424 U.S. at 743 n. 4, 96 S.Ct. at 1206 n. 4.

In his complaint, Kapossy asserted several theories of recovery based upon his allegations that the termination of his employment by McGraw-Hill was wrongful. In his present motion, Kapossy seeks entry of final judgment pursuant to Rule 54(b) of this court's Order entering partial summary judgment in favor of defendant on: (1) Kapossy's claim for breach of an implied covenant of good faith and fair dealing; and, (2) Kapossy's claim for breach of an implied contract by termination without cause.

As if to highlight the "uncertainty" surrounding the "multiple claim" requirement of Fed.R.Civ. 54(b), plaintiff simply assumes, without any discussion whatsoever, that his is an action involving "multiple claims." Brief on Behalf of Plaintiff at 3. It is not.

To understand why this action involves only a "single claim," it is useful to review what are not "multiple claims." Claims cannot be "multiple claims," within the meaning of Rule 54(b), "if they are `so closely related that they would fall afoul of the rule against splitting claims if brought separately.'" Sussex Drug, 920 F.2d at 1154 (quoting Local P-171, Amalgamated Meat Cutters & Butcher Workmen v. Thompson Farms Co., 642 F.2d 1065, 1070-71 (7th Cir. 1981)); see also CMAX, Inc. v. Drewry Photocolor Corp., 295 F.2d 695, 697 (9th Cir. 1961) ("The word `claim' in Rule 54(b) refers to a set of facts giving rise to legal rights in the claimant, not to legal theories of recovery based upon those facts."). Nor are there "multiple claims" unless "the claimant could ... recover separately on each claim." Minority Police Officers Ass'n of South Bend v. City of South Bend, Ind., 721 F.2d 197, 199 (7th Cir.1983).

Where, as here, a plaintiff seeks interlocutory appeal of an order granting summary judgment to the defendant, the appropriate inquiry is whether the remaining counts of the complaint will require proof of the same facts as those counts which were dismissed on summary judgment, in other words, whether these counts share a common "`core of operative facts,'" Sussex Drug, 920 F.2d at 1155 (quoting, with approval, Oyster v. Johns-Manville Corp., 568 F.Supp. 83, 86 (E.D.Pa.1983), appeal dismissed, 770 F.2d 1066 (3d Cir.1985)). The Third Circuit, therefore, requires district courts to focus on the factual commonality between the issues for which Rule 54(b) appeal is sought and those remaining before the district court. Id. Naturally, this inquiry subsumes within it the rule that a plaintiff who sets forth numerous legal theories in support of only one possible recovery states only one claim for relief. Indiana Harbor Belt R. Co. v. American Cyanamid Co., 860 F.2d 1441, 1445 (7th Cir.1988). Put another way, a single set of interrelated facts, even though it supports several causes of action, will usually constitute only a single "claim."

Furthermore, even if this court were not convinced that Kapossy's "multi-count" complaint presents only a "single claim" within the meaning of Rule 54(b), it still would not choose to certify as "final" any portion of the summary judgment order of March 21, 1996. There are sound prudential reasons for declining certification in this case.

The Third Circuit counsels against certification where "the entire recovery the plaintiff originally sought still [can be] awarded under the remaining count[s]." Gerardi v. Pelullo, 16 F.3d 1363, 1371 (3d Cir.1994). Kapossy does not contest that his damages, if any, for a violation of the NJLAD are the same as his damages for the alleged breach of the "implied covenant of good faith and fair dealing." If Kapossy succeeds on his remaining "Woolley" implied contract count, he will recover all that he would recover under his "termination for cause only" implied contract count.² It is axiomatic that, when the remaining counts share the same factual basis as those on which appeal is sought under Rule 54(b), the risk is highest that the plaintiff will present those same factual issues on a subsequent appeal. Id. Certification under Rule 54(b), in such circumstances, invites a waste of judicial resources, in part, by requiring the court of appeals to rule in the absence of a factual record which will only later be developed by the district court. Id. at 1372. See also Minority Police Officers, 721 F.2d at 201 (noting that the "burdens of multiple appeals are greatest in a case where the successive appeals bring up the same facts"). Because Kapossy's complaint, although alleging numerous legal theories, presents only a "single claim" within the meaning of Fed. R.Civ.P. 54(b), certification will be denied.

II. Certification Pursuant to 28 U.S.C. § 1292(b)

Section 1292(b) of Title 28 provides for immediate appeal of interlocutory decisions of the district court under the following circumstances:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the...