Makuc v. American Honda Motor Co., Inc., 82-1725

• Citation: 692 F.2d 172
• Decision Date: 21 October 1982
• Docket Number: No. 82-1725,82-1725
• Parties: Anne M. MAKUC, et al., Plaintiffs, Appellants, v. AMERICAN HONDA MOTOR CO., INC., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 172

692 F.2d 172

Anne M. MAKUC, et al., Plaintiffs, Appellants, v. AMERICAN HONDA MOTOR CO., INC., et al., Defendants, Appellees.

No. 82-1725.

United States Court of Appeals, First Circuit.

Oct. 21, 1982.

Louis Kerlinsky, Springfield, Mass., for plaintiffs.

Karl L. Gollub, David H. Sempert, Cornell & Gallub, Boston, Mass., for appellees.

Before CAMPBELL, BOWNES and BREYER, Circuit Judges.

MEMORANDUM AND ORDER

Two notices of appeal have been filed seeking review of the district court's order dismissing one of the defendant's below. In addition the second notice of appeal seeks review of the district court's refusal to enter judgment under Rule 54(b) F.R.Civ.P. To the extent that the notices seek review of the dismissal they are premature because judgment has not yet been entered under Rule 54(b).

The question of review of the denial of a Rule 54(b) motion is more difficult. While Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 900, 100 L.Ed. 1297 (1956) suggests that the district court's actions with regard to a Rule 54(b) motion are reviewable for abuse of discretion we think that, in context, that holding is limited to cases in which the motion is granted. Indeed, we are unaware of any cases in which a court of appeals has reviewed the denial of a Rule 54(b) motion though there are a number of cases where the granting of such motions has been reviewed. See, e.g., Brunswick v. Sheriden, 582 F.2d 175 (2nd Cir.1978) and Zangardi v. Tobriner, 330 F.2d 224 (D.C.Cir.1964). Indeed, as we have previously noted, we are not aware of cases where mandamus powers have been applied to require the granting of a 54(b) motion. In re Bromley-Health Modernization Committee, 448 F.2d 1271 (1st Cir.1971).

Drawing a distinction between the appealability of granting such a motion and of denying the same does not create a contradiction. Indeed, it would seem wholly consistent with the purposes of the rule and the finality doctrine embodied in 28 U.S.C. Sec. 1291.

When a Rule 54(b) motion is granted the normal policy against piecemeal review is stretched. Were a district court to improvidently grant such a motion it would permit appellate jurisdiction where no jurisdiction was intended. Quite naturally the appellate courts will review such orders to determine their correctness for if they are erroneous the reviewing court lacks jurisdiction.

On the other hand, when the district court denies a 54(b) motion, the policy against piecemeal review is preserved. Indeed, allowing appellate review of the denial of a 54(b) motion would go a long way towards enshrining piecemeal review, the very opposite of the policy the rule is intended to support. See Notes of the Advisory Committee to the 1946 Amendment to Rule 54. To be...