Paskenta Band of Nomlaki Indians et al v. Crosby et al

Filing 359

MEMORANDUM AND ORDER signed by District Judge Morrison C. England, Jr. on 1/24/2017 DENYING 300 Motion for Entry of Final Judgment. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PASKENTA BAND OF NOMLAKI
INDIANS; and PASKENTA
ENTERPRISES CORPORATION,

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Plaintiffs,

No. 2:15-cv-00538-MCE-CMK

MEMORANDUM AND ORDER

v.
INES CROSBY; JOHN CROSBY;
LESLIE LOHSE; LARRY LOHSE; TED
PATA; JUAN PATA; CHRIS PATA;
SHERRY MYERS; FRANK JAMES;
UMPQUA BANK; UMPQUA
HOLDINGS CORPORATION;
CORNERSTONE COMMUNITY BANK;
CORNERSTONE COMMUNITY
BANCORP; JEFFERY FINCK; GARTH
MOORE; GARTH MOORE
INSURANCE AND FINANCIAL
SERVICES, INC.; ASSOCIATED
PENSION CONSULTANTS, INC.; THE
PATRIOT GOLD & SILVER
EXCHANGE, INC.; GDK
CONSULTING LLC; and GREG
KESNER,
Defendants.

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Defendants Garth Moore and Garth Moore Insurance (collectively, “Moore”)

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previously moved under Federal Rule of Civil Procedure (“Rule”) 12(c) to dismiss the

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claims made against them. ECF No. 275. This Court granted the motion, dismissing the
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claims with prejudice. ECF No. 299. Moore now moves for the entry of final judgment

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under Rule 54(b) on the order dismissing the claims. ECF No. 300. For the reasons that

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follow, Moore’s Motion for Judgment is DENIED.1

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BACKGROUND2

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The Paskenta Band of Nomlaki Indians (“the Tribe”) employed Ines Crosby, John

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Crosby, Leslie Lohse, and Larry Lohse (collectively, the “Employee Defendants”) in

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executive positions for more than a decade. Plaintiffs contend that the Employee

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Defendants used their positions to embezzle millions of dollars from the Tribe and its

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principal business entity, the Paskenta Enterprises Corporation (“PEC”). As part of their

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scheme, Plaintiffs allege that the Employee Defendants caused the Tribe to invest in two

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unauthorized retirement plans for the Employee Defendants’ personal benefit: a defined

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benefit plan and a 401(k) (collectively, “Tribal Retirement Plans”). The Employee

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Defendants allegedly kept their activities hidden from Plaintiffs by various means

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including harassment, intimidation, and cyber-attacks on the Tribe’s computers.

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Plaintiffs go on to assert that Moore, among others, knowingly assisted the

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Employee Defendants in aspects of their scheme. According to Plaintiffs, Moore, as the

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Tribe’s financial advisor, assisted the Employee Defendants in setting up and

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administering the unauthorized Tribal Retirement Plans.

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After filing an answer, Moore moved to dismiss the third-party claims against it

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under Rule 12(c), and on October 19, 2016, the Court granted the motion. The claims

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against Moore were dismissed with prejudice. Moore now seeks entry of final judgment

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on that order, pursuant to Rule 54(b).

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Because oral argument would not have been of material assistance, the Court ordered this
matter submitted on the briefs in accordance with Local Rule 230(g).
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Unless otherwise noted, the allegations in this section are drawn directly from the allegations of
Plaintiffs’ Complaint.

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LEGAL STANDARD

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Rule 54(b) allows courts to “direct entry of a final judgment as to one or more, but

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fewer than all, claims or parties only if the court expressly determines that there is no just

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reason for delay.” The original purpose of Rule 54(b) was, given the modern practice of

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joining multiple parties and claims into a single action, to reduce uncertainty as to what

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constituted a final judgment that was ripe for appeal. Dickinson v. Petroleum Conversion

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Corp., 338 U.S. 507, 511–12 (1950); see also Gelboim v. Bank of Am. Corp., 135 S. Ct.

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897, 902 (2015) (“Rule 54(b) permits district courts to authorize immediate appeal of

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dispositive rulings on separate claims in a civil action raising multiple claims . . . .”).

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In determining whether to direct entry of a final judgment under Rule 54(b), courts

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must consider (1) whether it has rendered a “final judgment,” and then (2) “whether there

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is any just reason for delay.” Wood v. GCC Bend, LLC, 422 F.3d 873, 878 (9th Cir.

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2005) (quoting Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980)). While

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“[t]he Court has eschewed setting narrow guidelines for district courts to follow,” id. at

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878 n.2, its “discretion is to be exercised ‘in the interest of sound judicial administration,’”

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Curtiss-Wright, 446 U.S. at 8 (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,

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437 (1956)).

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ANALYSIS

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There is no doubt that the dismissal of the claims against Moore constitutes a final

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judgment. By dismissing the claims against Moore, this Court’s order was “an ultimate

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disposition of an individual claim entered in the course of a multiple claims litigation.”

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Wood, 422 F.3d at 878 (quoting Curtiss-Wright, 466 U.S. at 7). The Court dismissed all

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claims against Moore with prejudice after the close of the pleadings. The analysis does

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not end there, however, as Rule 54(b) also requires the Court to make an express

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finding that there is no “just reason for delay” in actually entering a judgment as to less

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than all claims.

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Moore here does not move for entry of final judgment so that it can file an

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appeal—its motion to dismiss was successful—but instead so that it will not “be required

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to expend more time and resources in monitoring the activity of this case, and of

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potentially preventing any party from circumventing the Court’s Order.” Defs.’ Mot. for J.

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at 3.

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While Moore’s motion would not serve the original purposes of Rule 54(b), the
Ninth Circuit has not precluded such considerations from being considered by a district

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court when ruling on a Rule 54(b) motion. See Continental Airlines, Inc. v. Goodyear Tire

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& Rubber Co., 819 F.2d 1519, 1525 (9th Cir. 1987); cf. Bank of Lincolnwood v. Fed.

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Leasing, Inc., 622 F.2d 944, 949 n.7 (7th Cir. 1980) (“The requirement that there be ‘no

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just reason for delay’ is frequently referred to as a requirement that there be no just

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reason to delay an appeal. This, however, is too narrow a reading of the Rule.”).

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Moore, however, has not made clear why there would be any costs incurred

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absent an entry of judgment under Rule 54(b). Furthermore, granting the 54(b) motion

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would likely work to undermine “the historic federal policy against piecemeal appeals.”

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Wood, 422 F.3d at 878 (quoting Curtiss-Wright, 466 U.S. at 7). If the Court were to grant

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Moore’s motion, Plaintiffs would be obligated to seek an appeal immediately or else

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forfeit the right to an appeal. An immediate appeal, though, would likely be

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inappropriate. Plaintiffs have alleged many parallel claims against various defendants

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and they should be analyzed on appeal as a single unit. See Jewel v. Nat’l Sec.

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Agency, 810 F.3d 622, 625 (9th Cir. 2015) (finding that a Rule 54(b) motion should be

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analyzed with regard to “the interrelationship of the claims so as to prevent piecemeal

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appeals in cases which should be reviewed only as single units” (quoting Curtiss-Wright,

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466 U.S. at 10)).

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CONCLUSION

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For the reasons above, Moore’s Motion for Judgment under Rule 54(b) is
DENIED.
IT IS SO ORDERED.
Dated: January 24, 2017

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