USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1878
GEORGE E. KERSEY,
Plaintiff, Appellant,
v.
DENNISON MANUFACTURING COMPANY, ET AL.,
Defendants, Appellees.
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No. 92-1932
GEORGE E. KERSEY,
Plaintiff, Appellant,
v.
DENNISON MANUFACTURING COMPANY, ET AL.,
Defendants, Appellees.
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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Torruella, Cyr and Boudin,
Circuit Judges.
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George E. Kersey, pro se, for appellant.
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Alan D. Rose with whom James N. Boudreau, Marilee Denelle, and
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Nutter, McClennen & Fish were on brief for appellees.
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August 24, 1993
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CYR, Circuit Judge. Appellant George E. Kersey chal-
CYR, Circuit Judge.
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lenges a partial summary judgment, certified pursuant to Fed. R.
Civ. P. 54(b), dismissing various claims against Dennison Manu-
facturing Co., Inc. ("Dennison") and four of its officers ("the
individual defendants") for breach of contract, age discrimina-
tion, defamation, invasion of privacy, and interference with
contractual relations. We dismiss the appeal for lack of appel-
late jurisdiction.
I
I
BACKGROUND
BACKGROUND
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Appellant Kersey, a patent attorney, performed legal
services for Dennison from 1966 to 1989. The defendants contend
that Kersey acted as retained counsel, or as an independent legal
consultant, providing advice to Dennison on patent matters.
Kersey depicts himself as the de facto "manager" of the patent
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department, and a Dennison "employee." Whatever their legal
relationship, Kersey parted company with Dennison in 1989 under
less than amicable circumstances.1
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1The lawsuit arose out of Dennison's decision to reorganize
its patent department. In 1988, Dennison's general counsel asked
Arthur B. Moore, a former "patent attorney trainee" who was
appointed Dennison's chief patent counsel, to prepare a "white
paper" critiquing the organization and efficiency of the patent
department during Kersey's tenure. Preliminary and final drafts
of the Moore report contained criticism of Kersey's past perfor-
mance, which Kersey considered defamatory. In January 1989,
Dennison sent written notice to Kersey, offering to retain his
3
In September 1989, Kersey brought the present lawsuit
against Dennison for breach of an employment contract (Count 1),
quantum meruit (Count 7), and refusal to pay for services (Count
8); against Dennison and the individual defendants for age
discrimination (Counts 2 and 3), defamation (Count 4), and
invasion of privacy (Count 5); and against the individual defen-
dants for intentional interference with advantageous contractual
relations (Count 6). Dennison counterclaimed, alleging that
Kersey committed eight acts of legal malpractice while acting as
Dennison's attorney between 1973 and 1988. Kersey interposed
eleven "cross-claims"2 against Dennison and the individual
defendants, alleging malicious and retaliatory prosecution of the
malpractice counterclaims, as well as malicious interference with
Kersey's future employment prospects.
On March 5, 1992, the district court granted summary
judgment for defendants on Counts 1-6 of the complaint, leaving
Counts 7 and 8 for later adjudication. The court denied Kersey's
motion for summary judgment on Dennison's malpractice counter-
claims. In June 1992, after Kersey's eleven "cross-claims" were
dismissed for failure to prosecute, see Fed. R. Civ. P. 41(b),
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services at an increased hourly rate on the condition that he
decrease his billable hours. Kersey contends, and Dennison
denies, that this constituted a constructive "termination" of
Kersey's employment.
2Kersey incorrectly designated his eleven counterclaims as
"cross-claims"; technically speaking, a cross-claim can be
interposed only against co-parties. We nonetheless use Kersey's
designation for ease of reference; namely, to distinquish his
counterclaims from Dennison's malpractice counterclaims.
4
the district court certified defendants' partial summary judgment
pursuant to Fed. R. Civ. P. 54(b),3 denied Kersey's ensuing
postjudgment motions for reconsideration, and stayed further
trial court proceedings pending appeal.
II
II
DISCUSSION
DISCUSSION
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Kersey's appeal founders on two jurisdictional defects,
one advanced by the defendants, the other by Kersey; either
defect warrants dismissal of the present appeal. Nonetheless, we
address both jurisdictional challenges, since any future appeal
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by Kersey from the adverse partial summary judgment would be
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3Civil Rule 54(b) provides:
When more than one claim for relief is pre-
sented 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 was no just reason
for delay and upon an express direction for
the entry of judgment. In the absence of
such determination and direction, any order
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or other form of decision, however designat-
ed, which adjudicates fewer than all the
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claims or the rights and liabilities of fewer
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than all the parties shall not terminate the
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action as to any of the claims or parties,
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and the order or other form of decision is
subject to revision at any time before the
entry of judgment adjudicating all the claims
and the rights and liabilities of all the
parties.
Fed. R. Civ. P. 54(b) (emphasis added).
5
foreclosed were defendants' present jurisdictional challenge to
prevail.
A. Notices of Appeal
A. Notices of Appeal
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Defendants insist that Kersey's appeal, and with it his
challenge to the Rule 54(b) certification, is precluded by Fed.
R. App. P. 4(a)(4), which provides:
If a timely motion . . . is filed in the
district court by any party . . . under Rule
59 to alter or amend the judgment . . . the
time for appeal for all parties shall run
from the entry of the order denying a new
trial or granting or denying any other such
motion. A notice of appeal filed before the
_ ______ __ ______ _____ ______ ___
disposition of any of the above motions shall
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have no effect. A new notice of appeal must
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be filed within the prescribed time measured
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from the entry of the order disposing of the
motion as provided above.
Fed. R. App. P. 4(a)(4) (emphasis added).4 We agree.
Kersey's first motion for reconsideration was filed on
July 13, 1992. See Rodriguez v. Banco Central, 790 F.2d 172, 176
___ _________ _____________
(1st Cir. 1986) (for purposes of FRAP 4(a)(4), motion for recon-
sideration may be considered a motion to alter and amend). His
notices of appeal filed on July 13 and July 22 both preced-
ed the district court's August 5 order denying his motions for
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4Appellate Rule 4(a)(4), which has been described as a "trap
for the unwary," Averhart v. Arrendondo, 773 F.2d 919, 920 (7th
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Cir. 1985), was intended to prevent a would-be appellant from
spinning "wheels" in the court of appeals while the trial court's
"wheels" remain in motion, lest the trial court's reexamination
of its own ruling moot a ripened appeal, or the appellate court
be deprived of the benefit of the district court's reassessment
or narrowing of the issues to be confronted on appeal. See
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McCowan v. Sears, Roebuck & Co., 908 F.2d 1099, 1103 (2d Cir.),
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cert. denied, 498 U.S. 897 (1990).
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6
reconsideration. Accordingly, both notices of appeal were
ineffectual under Fed. R. App. P. 4(a). See Griggs v. Provident
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Consumer Discount Co., 459 U.S. 56, 61 (1982) (holding that a
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notice of appeal filed prior to the disposition of a Rule 59(e)
motion is "nullified"); Willhauck v. Halpin, 919 F.2d 788, 792
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(1st Cir. 1990) (absent compliance with FRAP 4(a)(4), premature
notice of appeal "simply self-destructs") (citations omitted);
see also Wagoner v. Wagoner, 938 F.2d 1120, 1121 (10th Cir. 1991)
___ ____ _______ _______
(dismissing appeal from summary judgment certified pursuant to
Rule 54(b), due to failure to replace premature notice of appeal
per FRAP 4(a)(4)).5
The defendants further insist that Kersey's unwitting
failure to replace the premature notice of appeal, as required by
Fed. R. App P. 4(a)(4), has cost him not only the battle but the
war, since the Rule 54(b)-certified judgment became final and
nonappealable thirty days from August 5, 1992, when the district
court denied his Rule 59(e) motions. See Willhauck, 919 F.2d at
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792 ("In short, it is as if no notice of appeal was filed at
all."). Fortunately for Kersey, two jurisdictional facts defeat
defendants' argument.
First, the Rule 54(b)-certified judgment of June 24,
1992 was never entered on the district court docket in accordance
with Fed. R. Civ. P. 58 and 79(a). See Willhauck v. Halpin, 953
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F.2d 689, 701 (1st Cir. 1991) (holding that the certifying "court
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5Fed. R. App. P. 2 does not empower a court of appeals to
give effect to a premature notice of appeal under Fed. R. App. P.
4(a)(4). See Griggs, 459 U.S. at 60.
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7
must make an 'express direction for the entry of judgment' in
conformity with Fed. R. Civ. P. 58 and 79(a)"). Second, notwith-
standing the fact that the district court "announced" its denial
of Kersey's Rule 59(e) motions in the August 5 margin order, see
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Acosta v. Louisiana Dep't of Health and Human Resources, 478 U.S.
______ _____________________________________________
251, 253-54 (1986) (rejecting view that Rule 59 motion is "dis-
posed of," for FRAP 4(a)(4) purposes, at the time the district
court "announces" its denial of the motion rather than upon
formal entry of the order of denial), the margin order was never
transposed to a separate document, as mandated by Rule 58. See
___
Fed. R. App. P. 4(a)(7) ("A judgment or order is entered within
the meaning of this Rule 4(a) when it is entered in compliance
with Rules 58 and 79(a) of the Federal Rules of Civil Proce-
dure."); Fiore v. Washington County Community Mental Health Ctr.,
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960 F.2d 229, 233 (1st Cir. 1992) (en banc) (postjudgment motions
are subject to "separate document" rule).
Accordingly, the time periods within which an appeal
could be taken from the June 24 certified judgment, and from the
August 5 margin order denying the Rule 59(e) postjudgment
motions,6 have never commenced. See Bankers Trust Co. v.
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Mallis, 435 U.S. 381, 386 (1978) (per curiam) (noting that the
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"separate document" rule should always be invoked "to prevent
loss of the right of appeal, not to facilitate loss [of that
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6See Fiore, 960 F.2d at 232-33 (noting that, in the First
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Circuit, "denials of . . . post-judgment motions challenging the
judgment are appealable separately from the appeal of the under-
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lying judgment") (emphasis added).
8
right]"); Fiore, 960 F.2d at 235. Thus, were we to order a pro
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forma remand, Kersey could attempt to persuade the district court
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to reconsider its Rule 54(b) certification or the underlying
summary judgment, see Fed. R. Civ. P. 54(b) ("the order or . . .
___
decision is subject to revision at any time . . . ."); failing
that, he could file a timely notice of appeal as soon as the
extant orders were entered on the docket.
One course of action in these circumstances would be
simply to dismiss the appeal and proceed no further.7 But since
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7FRAP 4(a)(4) applies only to a "timely" motion under Civil
Rule 59(e), which requires that a motion to alter or amend "shall
be served not later than 10 days after entry of judgment." Had
the certified judgment been entered in compliance with Rule 58 on
June 24, Kersey's Rule 59(e) motions would have been "untimely,"
see Feinstein v. Moses, 951 F.2d 16, 19 (1st Cir. 1991) (Rule
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59's ten-day deadline is "mandatory," and the district court has
no discretion to waive deadline), since Kersey apparently did not
serve them on defendants until July 13, 1992, more than ten days
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after the presumed date of entry of the judgment. Kersey's two
notices of appeal would have remained intact. See Boston Car Co.
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v. Acura Auto. Div., 971 F.2d 811, 814-15 (1st Cir. 1992) (an
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untimely Rule 59 motion should not trigger "nullification"
________
effects of FRAP 4(a)(4)); Britt v. Whitmire, 956 F.2d 509, 515
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(5th Cir. 1992) (same).
The delay in entering the Rule 54(b)-certified judgment and
the order denying the Rule 59(e) motions regenerates a FRAP
4(a)(4) problem. Because the June 24 judgment has not yet
entered, Kersey's Rule 59(e) motions, though decidedly premature,
were not "untimely" under Rule 59(e) that is, they were not
served later than 10 days after entry of judgment. See 11
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Charles Wright & Arthur Miller, Federal Practice and Procedure
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2812, at 81-82, 81 n.44 (1973 & Supp. 1993) (Rule 59(e) sets only
an outer-limit deadline, so that an early motion for reconsidera-
tion can still be characterized as a valid Rule 59(e) motion,
even if filed before formal entry of judgment). Moreover, FRAP
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4(a)(2), which normally gives reach-back effect to premature
notices of appeal filed between the announcement of a decision
and the entry of judgment, is expressly made inapplicable as a
cure for FRAP 4(a)(4) defects. See Fed. R. App. P. 4(a)(2)
___
("Except as otherwise provided in (a)(4) of this Rule 4 . . . ."-
); Acosta, 478 U.S. at 253-54.
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9
a pro forma remand, followed by a new notice of appeal, would
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advance neither the interests of the parties nor sound judicial
administration, we address the other jurisdictional flaw infect-
ing Kersey's appeal. See Fiore, 960 F.2d at 235 (noting that
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strict adherence to policy of remanding for correction of FRAP
4(a)(4) defect would compel parties to go through the motions by
refiling a timely notice of appeal on remand, but that "[c]ausing
wheels to spin for no practical purpose is . . . contrary to the
Supreme Court's handling of Rule 58.") (citing Bankers Trust, 435
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U.S. at 385).
B. Rule 54(b) Certification
B. Rule 54(b) Certification
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We lack appellate jurisdiction to review the partial
summary judgment absent a proper Rule 54(b) certification. See
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Pahlavi v. Palandjian, 744 F.2d 902, 903 n.2 (1st Cir. 1984)
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(citing Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)-
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). Even were we to assume arguendo that the dismissed claims
________
(Counts 1-6) in the present case qualified as "final," see
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Consolidated Rail Corp. v. Fore River Ry. Co., 861 F.2d 322, 325
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(1st Cir. 1988), the Rule 54(b) certification would falter on the
"interrelationship" prong of the discretionary test set out in
Spiegel v. Trustees of Tufts College, 843 F.2d 38, 44 (1st Cir.
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On the other hand, Griggs and Acosta offer only limited
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jurisdictional guidance, since appellants in those cases could no
longer file replacement notices of appeal because final judgments
had entered during their appeals and the time for filing an
effectual notice of appeal had long since elapsed. Accordingly,
despite the technical requirements of FRAP 4(a)(4), we are left
to fashion a course best suited to the interests of the parties
and the interests of judicial economy.
10
1988). The Spiegel test requires the court of appeals to scruti-
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nize (1) the district court's evaluation of any interrelationship
or overlap between the legal and factual issues raised by the
dismissed and pending claims, and (2) the district court's
assessment of the equities for and against an immediate appeal.
In cases where the district court has provided a written state-
ment of the grounds for certification, we normally accord its
discretionary decision "substantial deference," id., and will
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dismiss for lack of appellate jurisdiction only if the court's
certification was "clearly unreasonable." Curtiss-Wright Corp.
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v. General Elec. Co., 446 U.S. 1, 10 (1980).
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In conjunction with the district court's Rule 54(b)
certification, Kersey's "cross-claims" were dismissed for lack of
prosecution. The court based the dismissal on defendants'
allegation that Kersey neither conducted discovery on the "cross-
claims" nor complied with the pretrial order requiring that each
claim he intended to pursue at trial be specified in his "trial
document." Nevertheless, the record flatly contradicts defen-
dants' allegation that Kersey failed to identify the dismissed
"cross-claims" in his February 5, 1992 "trial document."8
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8In A-8 of the "trial document," Kersey fully described
his "cross-claims" for "malicious abuse of civil process,"
alleging that Dennison's eight counterclaims were brought in "bad
faith," and that Kersey had been "damaged in his ability to
obtain future legal and/or patent work." This language precisely
mirrors Kersey's dismissed "cross-claims," which alleged that
Dennison and the individual defendants asserted unfounded mal-
practice claims in retaliation for his lawsuit against them, and
to harm Kersey's future employment prospects. Kersey even listed
as a proposed trial exhibit a January 25, 1990 letter in
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which opposing counsel made the alleged threat to prosecute the
11
Involuntary dismissal of a claim pursuant to Fed. R.
Civ. P. 41(b) for failure to prosecute is reviewable only for
"abuse of discretion." See HMG Property Investors, Inc. v.
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Parque Indus. Rio Canas, Inc., 847 F.2d 908, 916 (1st Cir. 1988).
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Nonetheless, since dismissal is among the harsher sanctions and
contravenes the longstanding policy favoring dispositions on the
merits, it must be cautiously invoked. See Velazquez-Rivera v.
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Sea-Land Serv., Inc., 920 F.2d 1072, 1075 (1st Cir. 1990);
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Figueroa-Ruiz v. Alegria, 896 F.2d 645, 647 (1st Cir. 1990). As
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the central allegation underpinning the Rule 41(b) dismissal
order in this case was unfounded,9 the dismissals cannot stand
and, consequently, the district court's Rule 54(b) certification
is undermined. See Serrano-Perez v. FMC Corp., 985 F.2d 625, 628
___ _____________ _________
(1st Cir. 1993) ("abuse of discretion" occurs "when a relevant
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factor deserving of significant weight is overlooked, or when an
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improper factor is accorded significant weight, or when the court
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considers the appropriate mix of factors, but commits a palpable
error of judgment in calibrating the decisional scales.") (empha-
sis added).10
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retaliatory counterclaims.
9Without more, a mere failure to conduct discovery would not
signal abandonment of these "cross-claims," not only because of
their inherent nature, but in light of Kersey's stated intention
to try the "cross-claims." See supra note 8.
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10The record indicates that defendants never mentioned
Kersey's "cross-claims" in their initial motion for Rule 54(b)
certification, which the district court endorsed on June 11,
1992. Not until Kersey brought this omission to the district
court's attention did defendants include a "dismissal" clause in
the proposed form of judgment signed by the court on June 24.
12
In its critical role as the Rule 54(b) "dispatcher,"
Curtiss-Wright, 446 U.S. at 8, the district court is to consider
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the strong judicial policy disfavoring piecemeal appellate
review, see Spiegel, 843 F.2d at 42; Pahlavi, 744 F.2d at 903, by
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carefully comparing the dismissed and the unadjudicated claims
for indications of substantial overlap to ensure that the
appellate court is not confronted in successive appeals with
common issues of law or fact, to the detriment of judicial
efficiency. In the present case, exhumation of Kersey's "cross-
claims" effectively reinstates the dispute between Kersey and the
individual defendants. Rule 54(b) certification is particularly
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suspect "'when the contestants on appeal remain, simultaneously,
contestants below.'" Consolidated Rail, 861 F.2d at 326 (quoting
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Spiegel, 843 F.2d at 44); Shrader v. Granninger, 870 F.2d 874,
_______ _______ __________
878 (2d Cir. 1989).
Count 4 of the complaint alleges that the defendants
published or adopted defamatory statements about Kersey's perfor-
mance of legal services for Dennison; one such statement de-
scribes Kersey's "unfortunate habit of procrastination in patent
prosecution." Several malpractice counterclaims (e.g., Counts 2,
____
3, 7) also involve allegations that Kersey mismanaged Dennison's
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Appellees argue, nevertheless, that the Rule 54(b) certification
was proper even if the Rule 41(b) dismissals were improvident, on
the ground that the dismissed claims all involved events occur-
ring before Kersey's alleged discharge, while the dismissed
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"cross-claims" involved Dennison's alleged retaliatory decision
to institute its counterclaims after Kersey brought the present
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lawsuit. As pointed out below, however, defendants' contention
is untenable. See infra at pp. 13-15.
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13
patent prosecutions and appeals during the period from 1973 to
1988.11 In his "cross-claims," Kersey counters that Dennison's
malpractice counterclaims lacked a "basis in fact" and were
brought in "bad faith," presumably either as post hoc justifica-
__________ ____ ___
tions for terminating Kersey, or to coerce settlement of the
present lawsuit by impugning "his personal and professional
reputation." See, e.g., Beecy v. Pucciarelli, 387 Mass. 589,
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593, 441 N.E.2d 1035, 1038 (1982) ("malicious prosecution"
claimant must demonstrate damages resulting from defendant's
prosecution, "with malice and without probable cause," and that
defendant's action was resolved in claimant's favor).
On appeal, the defendants urge that their "procras-
tination" allegation against Kersey must be considered privileged
because it was made in furtherance of Dennison's legitimate
business requirements. Defendants concede, nonetheless, that the
privilege would be rendered inoperative under Massachusetts law
were Kersey to show that defendants recklessly or maliciously
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published the allegation. See Bratt v. IBM Corp., 392 Mass. 508,
___ _____ _________
513, 467 N.E.2d 126, 131 (1984). Thus, defendants' bad faith,
reckless disregard, and/or malice, form core allegations compris-
ing the dismissed defamation claim and the "cross-claims" for
malicious prosecution, all of which allege reputational harm.
These factual issues may well turn on the truth or falsity of the
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11For example, Dennison's second counterclaim alleges that
it lost a 1988 patent case when a federal district court denied
Kersey's "belated[]" motion to file proposed findings of fact,
since "the [filing] deadline had long since passed."
14
malpractice charges, the timing and extent of defendants' knowl-
edge of the facts underlying their malpractice charges, and any
evidence of ill motive. These factual determinations bid fair to
form the essential focus of successive appeals, one in connection
with the dismissed defamation claim, and another relating to the
"cross-claims" for malicious prosecution. See Spiegel, 843 F.2d
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at 45 (dismissing appeal from order certified under Rule 54(b)
where "[t]he factual underpinnings of the adjudicated and unadju-
dicated counts are . . . inextricably intertwined"); Pahlavi, 744
_______
F.2d at 904 (noting factual overlap between claims and counter-
claims, presenting "a conflict which seems destined to reappear"
in a succeeding appeal); see also Hogan v. Consolidated Rail
___ ____ _____ _________________
Corp., 961 F.2d 1021, 1026 (2d Cir. 1992) (abjuring, as contrary
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to sound judicial administration, "piecemeal appeals that require
two (or more) three-judge panels to familiarize themselves with a
given case, instead of having the trial judge, who sits alone and
is intimately familiar with the whole case, revisit a portion of
the case if he or she has erred in part"). So substantial a
prospect of contextual overlap between dismissed claims and
unadjudicated claims counsels strongly against Rule 54(b) certif-
ication. See Continental Airlines, Inc. v. Goodyear Tire and
___ ___________________________ __________________
Rubber Co., 819 F.2d 1519, 1525 (9th Cir. 1987) (factual overlap
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entails risk that Rule 54(b)-certified judgment may have unex-
pected res judicata effect on unadjudicated claims yet pending
___ ________
before trial court).
15
In these circumstances, given the interlocking factual
issues common to the improvidently dismissed "cross-claims" and
the dismissed defamation claim, the Rule 54(b) certification was
improper, especially since there is no compelling evidence that
the equities favor early appellate review of the certified
judgment. See Spiegel, 843 F.2d at 45 ("Where, as here, the dis-
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missed and surviving claims are interlocking, only 'unusual and
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compelling circumstances . . . [can] dictate[] entry of an early
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separate judgment' on the dismissed part of the case.") (emphasis
added) (citation omitted). Aside from noting the unrelatedness
of the dismissed and unadjudicated claims, the district court
determination that there was "no just reason for delay" was based
primarily on the ground that immediate appeal of the partial
summary judgment might avoid two separate trials should the
partial summary judgment later be vacated and remanded for new
trial. As noted, however, such a potential is rarely, if ever, a
self-sufficient basis for a Rule 54(b) certification, because
"[v]irtually any interlocutory appeal from a dispositive ruling
said to be erroneous contains the potential for requiring a
retrial." Id.
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The appeal is dismissed for lack of jurisdiction. The
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case is remanded to the district court for further proceedings
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consistent with this opinion; no costs.
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16