Garden v. Central Nebraska Housing Corp. et al
MEMORANDUM AND ORDER - Defendant Central Nebraska Housing Corp.'s Motion to Amend Order on Motion for Partial Summary Judgment (Filing No. 40 ), is denied. Ordered by Chief Judge Laurie Smith Camp. (GJG)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RICHARD P. GARDEN, JR., Trustee,
CENTRAL NEBRASKA HOUSING
CORP.; PINNACLE BANK OF
NEWCASTLE WYOMING; SECURITY
FIRST BANK; RICK ROBERTS;
LORETTA SUE ROBERTS; JOHN
ZAPATA; COLJO INVESTMENTS,
LLC; PINNACLE BANK; and
UNVERZAGT FEED LOT,
CASE NO. 8:11CV292
This matter is before the Court on the Motion to Amend Order on Motion for Partial
Summary Judgment (Filing No. 40) filed by Defendant Central Nebraska Housing Corp.
(“CNH”) . For the reasons discussed below, the Motion will be denied.
CNH seeks a final judgment under Federal Rule of Civil Procedure 54(b) with
respect to the Court’s Order (Filing No. 27), entered on October 5, 2011, denying CNH’s
Motion for Partial Summary Judgment (Filing No. 12) and granting the cross Motion for
Partial Summary Judgment (Filing No. 13) filed by Defendants Rick Roberts and Loretta
Sue Roberts. In that Order, the Court found that a material issue of fact existed regarding
whether a valid contract was formed at a real estate auction under which CNH agreed to
purchase certain real estate for $113,500.00, and also found that the Robertses were
entitled to judgment as a matter of law on the issue of whether CNH could set aside the
sale of the same real estate at that same auction to a party other than CNH for
$166,500.00. On October 13, 2011, the Court directed Plaintiff Richard P. Gardner, trustee
of the auction sale, to deposit the $166,500.00 sale proceeds with the Clerk of the Court.
(Filing No. 37.) No final order of judgment has been entered because there has been no
determination as to whom, and in what amounts, the $166,500.00 in disputed funds should
Rule 54(b) states:
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
judgment adjudicating all the claims and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b). “The sole purpose of a Rule 54(b) order is to provide an opportunity
to appeal claims affecting some but not all of the parties or some but not all of the issues.”
Orion Fin. Corp. of S.D. v. Am. Foods Grp., Inc., 201 F.3d 1047, 1049 (8th Cir. 2000).
The Supreme Court has “outlined the steps to be followed in making determinations
under Rule 54(b).” Curtiss-Wright Corp. v. Gen. Electric Co., 446 U.S. 1, 7 (1980) (citing
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436-37 (1956)). First, the Court must
“determine that it is dealing with a ‘final judgment.’ It 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.’” Curtiss-Wright, 446 U.S. at 7 (quoting
Sears, Roebuck & Co., 351 U.S. at 436); accord Outdoor Cent., Inc. v. GreatLodge.com,
At this tim e, only one party has asserted its rights to any portion of the funds. The Robertses have
filed a Motion for Partial Sum m ary Judgm ent (Filing No. 43) arguing that they are entitled to a certain am ount
of the disputed funds. The Robertses’ argum ent is based on the Court’s determ ination that the trustee sale
of the property at auction for $166,500.00 was valid. (Filing No. 46, at 3 ¶¶ 12-15.)
Inc., 643 F.3d 1115, 1118 (8th Cir. 2011). “[A]t least one claim or the rights and liabilities
of at least one party must be finally decided.” 10 Charles Alan Wright, Federal Practice
and Procedure § 2656 (3d ed. 2011). “[F]inality under [Rule 54(b)] is the same as that
utilized in single claim cases and is found in Section 1291 of Title 28.” Id. “The finality
requirement of 28 U.S.C. [§] 1291 embodies a strong congressional policy against
piecemeal reviews, and against obstructing or impeding an ongoing judicial proceeding by
interlocutory appeals.” U.S. v. Nixon, 418 U.S. 683, 690 (1974). Under § 1291, a “final
decision” is one “that ‘ends the litigation on the merits and leaves nothing for the court to
do but execute the judgment.’” Langford v. Norris, 614 F.3d 445, 454-55 (8th Cir. 2010)
(quoting Davis v. Streekstra, 227 F.3d 759, 762 (7th Cir. 2000)) (internal quotations
omitted). Decisions in which “assessment of damages or awarding of other relief remains
to be resolved have never been considered to be ‘final’ within the meaning of 28 U.S.C.
[§] 1291.” Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 744 (1976) (citations omitted).
Second, after having made a finding of “finality,” “the [Court] must go on to
determine whether there is any just reason for delay.” Curtiss-Wright, 446 U.S. at 8;
accord Outdoor Cent., 643 F.3d at 1118. “‘In determining that there is no just reason for
delay, the district court must consider both the equities of the situation and judicial
administrative interests, particularly the interest in preventing piecemeal appeals.’”
Shurgard Storage Ctrs. v. Lipton-U City, LLC, 394 F.3d 1041, 1046 (8th Cir. 2005) (quoting
Interstate Power Co. v. Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993).
There must be “‘some danger of hardship or injustice which an immediate appeal would
alleviate.’” Clark v. Baka, 593 F.3d 712, 715 (8th 2010) (quoting Taco John’s of Huron, Inc.
v. Bix Produce Co., LLC, 569 F.3d 401, 402 (8th Cir. 2009)).
In support of its Rule 54(b) Motion, CNH contends that by denying its Partial
Summary Judgment Motion and granting the Robertses’ cross Partial Summary Judgment
Motion, the Court determined the sale price at the trustee sale. CNH asserts that delaying
the finality of the cross Motions for Partial Summary Judgment would serve no useful
purpose. CNH also asserts that it “ought to have the right to appeal, and [that the
Robertses] ought to have finality should there be no successful appeal.” (Filing No. 41.)
Although CNH’s Rule 54(b) Motion is unopposed, “Rule 54(b) certifications ‘should
not be entered routinely or as a courtesy or accommodation to counsel.’” Huggins v.
FedEx Ground Package Sys., Inc., 566 F.3d 771, 774 (8th Cir. 2009) (quoting Guerrero
v. J.W. Hutton, Inc., 458 F.3d 830, 833 (8th Cir. 2006)); see also Outdoor Ctr., 643 F.3d
at 1118 (quoting Ark. Blue Cross & Blue Shield v. Little Rock Cardiology Clinic, P.A., 551
F.3d 812, 816 (8th Cir. 2009)) (“Though the parties agree that the case is properly before
this court, they may not create jurisdiction ‘by waiver or consent.’”) The Court may have
determined the sale price at the trustee sale, however, CNH has not presented more than
one claim for relief in this action, and its rights and liabilities with respect to the disputed
funds have not been decided. The proper distribution of the funds deposited with the Clerk
of Court remains to be resolved. As a result, there has not been an ultimate disposition
of CNH’s claim. Nor has CNH asserted that it will suffer any hardship or injustice that an
immediate appeal would alleviate, and the Court is unable to discern how or why CNH will
face injustice or hardship unless it can file an immediate appeal of the Court’s Order on the
cross Motions for Partial Summary Judgment. As a result, the Court finds that CNH’s
Motion to Amend Order on Motion for Partial Summary Judgment, brought under Rule
54(b), should be denied. See Wright, supra, § 2656 (“‘A final decision is one which ends
the litigation on the merits and leaves nothing for the court to do but execute the judgment.’
Therefore, a partial summary judgment that decides some of the issues . . . is interlocutory
and not within the scope of [Rule 54(b)]”); see also Id. § 1720 (“Rule 54(b) does not give
the district court the power to make clearly unappealable elements of the case
IT IS ORDERED that Defendant Central Nebraska Housing Corp.’s Motion to
Amend Order on Motion for Partial Summary Judgment (Filing No. 40), is denied.
DATED this 20th day of December, 2011.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets were retrieved from PACER, and should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.