Schaefer v. First National Bank of Lincolnwood, 72-1146.

• Citation: 465 F.2d 234
• Decision Date: 07 July 1972
• Docket Number: No. 72-1146.,72-1146.
• Parties: Robert SCHAEFER and Sandra Schaefer et al., Plaintiffs-Appellants, v. FIRST NATIONAL BANK OF LINCOLNWOOD et al., Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

465 F.2d 234 (1972)

Robert SCHAEFER and Sandra Schaefer et al., Plaintiffs-Appellants, v. FIRST NATIONAL BANK OF LINCOLNWOOD et al., Defendants-Appellees.

No. 72-1146.

United States Court of Appeals, Seventh Circuit.

July 7, 1972.

Lawrence Walner, S. John Templeton, Jeffrey Schulman, Harris G. Nagorsky, Chicago, Ill., for plaintiffs-appellants.

Edward J. Wendrow, Douglas C. Moir, James E. S. Baker, Richard K. Decker, Joseph E. Coughlin, Robert Dunn Glick, Narcisse A. Brown, Howard L. Fink, Charles T. Martin, Chicago, Ill., for defendants-appellees.

Before SWYGERT, Chief Judge, and KILEY and FAIRCHILD Circuit Judges.

PER CURIAM.

This matter is before the court on certain defendants' motion to dismiss an appeal from an order entered by the district court on July 28, 1970, 326 F.Supp. 1186, which dismissed Robert and Sandra Schaefer as plaintiffs in a class action against multiple defendants and which also dismissed one count of a three-count complaint. The Schaefers and the other members of the plaintiff class separately appealed the order of July 28, 1970 on a previous occasion without first obtaining from the district court the requisite "express determination that there is no just reason for delay and . . . an express direction for the entry of judgment." Fed.R.Civ. P. 54(b). Certain of the defendants-appellees in those appeals moved in this court that the appeals be dismissed on the ground that the order appealed from was interlocutory absent compliance with Fed.R.Civ.P. 54(b) and also on the grounds that the plaintiffs-appellants had not complied with Rules 30(a) and 10(a), Fed.R.App.P. We granted the motion to dismiss the appeal on December 9, 1970, and the cause was returned to the trial court. The plaintiffs, however, made no attempt to obtain an order pursuant to Rule 54(b) from the district judge until March 3, 1971, when they filed a motion in the trial court requesting the entry of such an order. The motion lay fallow through a change in judges, which took place on May 21, 1971, until December 21, 1971. On that date, the trial court entered its order in accordance with plaintiffs' Rule 54(b) motion. We reverse the determination of the district court pursuant to Rule 54(b) and dismiss the appeal.

There is no question that this court may review the propriety of the granting by the district court of the plaintiffs' motion for a Rule 54(b) determination. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). As the Third Circuit aptly said in Panichella v. Pennsylvania R.R., 252 F.2d 452, 455 (3d Cir. 1958):

Ordinarily an application for a 54(b) order requires the trial judge to exercise considered discretion, weighing the overall policy against piecemeal appeals against whatever exigencies the case at hand may present. Indeed, the draftsmen of this Rule have made explicit their thought that it would serve only to authorize "the exercise of a discretionary power to afford a remedy in the infrequent harsh case * * *." 28 U.S.C.A., Federal Rules of Civil Procedure, 118-119 note. It follows that 54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. The power which this Rule confers upon the trial judge should be used only "in the infrequent harsh case" as an instrument for the improved administration of justice and the more satisfactory disposition of litigation in the light of public policy indicated by statute and rule.

We note that the plaintiffs here did not act to obtain a Rule 54(b) order from the district court until nearly three months after the dismissal of their previous appeal for their failure to have previously obtained such an order. Moreover, when the district court issued the Rule 54(b) order slightly more than a year had passed since our dismissal of the previous appeal. We believe that the lack of diligence on the part of the plaintiffs in seeking the Rule 54(b) order they eventually obtained, together with the passage of such a substantial expanse of time between our dismissal and the district court's order, is sufficient, without more, to warrant our dismissal of the present appeal. We reach that conclusion on two grounds. First, a determination by the district court made more than a year after the entry of an otherwise interlocutory order that there was "no just reason for delay" of its appeal would require a substantial factual basis as justification therefor. We can find no substantial factual basis here, and the district court's order states none. More importantly, however, we believe that validating the district court's Rule 54(b) determination here would derogate from the policy against piecemeal appeals while, at the...