CBS Outdoor, Inc. v. 800 Lincoln LLC
ORDER. ORDERED that Defendants Motion for Certification of Final Judgment Pursuant to F.R.C.P. 54(b) and for Stay 52 is DENIED. ORDERED that the parties shall jointly contact my Chambers on or before Friday, January 18, 2013, to schedule a status conference by Judge Wiley Y. Daniel on 01/10/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-02233-WYD-MJW
CBS OUTDOOR, INC., a Delaware Corporation,
800 LINCOLN LLC, a Colorado Limited Liability Company,
THIS MATTER is before the Court on Defendant’s Motion for Certification of
Final Judgment Pursuant to F.R.C.P. 54(b) and for Stay filed November 8, 2012.
Plaintiff filed a response in opposition to the motion on November 30, 2012, and a reply
was filed on December 14, 2012.
Defendant asserts in its motion that the Order on Summary Judgment Motions
filed September 24, 2012, constitutes a final order and that there is no just reason to
delay its entry as a final judgment. For the reasons stated below, Defendant’s Motion
for Certification of Final Judgment Pursuant to F.R.C.P. 54(b) and for Stay is denied.
Rule 54(b) of the Federal Rules of Civil Procedure provides in relevant part:
When more than one claim for relief is presented 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 is no just reason for delay and upon an
express direction for the entry of judgment.
The Tenth Circuit has made clear that “‘Rule 54(b) entries are not to be made routinely
. . . .’” Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) (quotation
Thus, certification under Rule 54(b) “is appropriate only when the district court
‘adheres strictly to the rule's requirement that a court make two express
determinations.’” Stockman’s Water Co., LLC v. Vaca Partners, L.P., 425 F.3d 1263,
1265 (10th Cir. 2005) (quotation omitted). “First, the district court must determine that
its judgment is final.” Id. (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7
(1980)). “Second, the district court must determine that no just reason for delay of entry
of its judgment exists.” Id. (citing Curtiss-Wright, 446 U.S. at 8).
In the case at hand, Plaintiff asserts claims for declaratory judgment, breach of
contract and breach of the duty of good faith and fair dealing. Plaintiff’s first claim for
relief is for a declaratory judgment that (a) Plaintiff “is the legal owner” of an outdoor
advertising sign (“the Sign”), “which consists of the entire metal structure or framework
above the Roofline of the Building” (“the ownership issue”) and (b) Plaintiff “could
remove the Sign and its framework from the building (“the removal issue”). (Compl.
¶ 62.) Plaintiff’s second claim, also for declaratory relief, seeks a declaration that
“regardless of what entity is determined to be the ownership of the existing Sign, no
party, other than [Plaintiff], can maintain or operate any off-site commercial advertising
on the Building until January 2, 2016” (“the advertising issue”). (Compl. ¶ 67.) The third
and fourth claims are for breach of contract and breach of good faith and fair dealing
claims (the “contract claims”), and are based upon Defendant’s termination of a Lease
related to the Sign. Defendant’s counterclaim for declaratory judgment requests a
declaration that it is the owner of the framework of the Sign and the advertising rights
related thereto. (Counterclaim ¶ 42.)
The Order on Summary Judgment did not dispose of all claims. While it resolved
the portion of Plaintiff’s declaratory judgment claims relating to ownership and
advertising as well as Defendant’s declaratory judgment counterclaim, Plaintiff’s
declaratory judgment claim was resolved only partially as to the issue of removal of the
Sign. Specifically, I found in that Order “that in executing the Lease, whatever legal
rights either of the parties might otherwise have had regarding the Sign and/or its
Framework or however the Sign might otherwise be characterized (an improvement,
appurtenance, trade fixture, etc.), the parties unambiguously agreed that the Sign and
its Framework was and would remain the property of CBS and was subject to removal
by it.” (Order on Summ. J. Mots. at 26.) Thus, while I found that Plaintiff was entitled to
remove the Sign as its owner, I found that there were genuine issues of material fact as
to whether the Framework of the Sign could be removed by Plaintiff without material
damage to the building. (Id. at 27.) Accordingly, the removal issue was not fully
resolved. Plaintiff’s claims for breach of contract and breach of duty of good faith and
fair dealing also remain pending, and were not the subject of the summary judgment
motions. Thus, I must determine whether the requirements of Rule 54(b) are met for
“To be considered ‘final,’ an order must be ‘final’ in the sense that it is an ultimate
disposition of an individual claim entered in the course of a multiple claims action.’”
Okla. Turnpike Auth., 259 F.3d at 1242 (quotation omitted). “While the exact definition
of ‘claim’ for purposes of Rule 54(b) is unsettled, . . .a ‘claim’ is generally understood to
include all factually or legally connected elements of a case.” Id. “Thus, a judgment is
not final for the purposes of Rule 54(b) unless the claims resolved are distinct and
separable from the claims left unresolved.” Id. “In determining whether claims are
separable, courts should ‘consider whether the allegedly separate claims turn on the
same factual questions, whether they involve common legal issues, and whether
separate recovery is possible.’” Inola Drug, Inc. v. Express Scripts, Inc., 390 F. App’x
774 (10th Cir. 2010) (quoting Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005)).
In the case at hand, Defendant argues that the remaining declaratory judgment
claim relating to removal and the contract claims are distinct and separable from the
claims resolved in the summary judgment order because they are predicated upon
independent factual bases. According to Defendant, the removal claim involves
whether the Framework can be removed without causing material injury to the building,
and the contract claims involve the propriety of Defendant’s termination of the Lease.
I disagree and find that the summary judgment order was not final for purposes
of Rule 54(b). I agree with Plaintiff that the ownership issue of the Sign that has been
resolved is integrally related to the removal issue that remains. Both the ownership and
removal issue were asserted in a single claim for relief seeking a declaration that
Plaintiff owns the Sign and, as the owner, is entitled to remove the Sign. The ownership
and removal issues also turn on the same provision of the parties’ lease; thus, they
involve a common legal issue and are not separable. Indeed, I found in favor of Plaintiff
on both the removal and ownership issue based on the language of the lease. The only
issue remaining on the removal issue relates to factual issues regarding whether the
Sign can be removed without material damage. I also note that Defendant’s argument
on ownership in its summary judgment briefing was based in large part on issues of
removability and mobility.
Defendant apparently would have two appellate panels (one focusing solely on
ownership and one solely on removal) interpreting the same provisions of the Lease
and the impact of that contractual language on common law doctrines raised by it. Both
appeals would also require that the appellate panels become familiar with the same
factual details of the structure of the Sign and the Building. This shows the
interrelatedness of the claims, and also shows that certification would promote
piecemeal appeals. See, e.g., McAdams v. McCord, 533 F.3d 924, 929 (8th Cir. 2008)
(rejecting Rule 54(b) certification that would result in piecemeal appeals arising out of
the same factual allegations and would require a future court to “refamiliarize itself with
this same complex set of facts”); see also Stewart v. Gates, 277 F.R.D. 33, 37 (D.D.C.
2011) (denying certification of claims that involved the same “nucleus of facts” for the
I also find that the second element required for certification is not met.
Defendant has not shown that there is no just reason for delay of entry of judgment.
Indeed, as discussed in the previous paragraph, a second appeal of the removal issue
would require the court of appeals to revisit the same issues decided in the first appeal.
Certification is not appropriate under those circumstances. See Jordan, 425 F.3d at
827. Indeed, in making a certification determination under Rule 54(b) I must take into
account “judicial administrative interests as well as the equities involved.” CurtissWright Corp., 446 U.S. at 7.
I also note on the judicial efficiency issue that I disagree with Defendant’s
argument that if it were determined the owner of the Framework of the Sign on appeal,
Plaintiff’s contract claims would be rendered moot. Even if Defendant was declared the
owner of the Sign, Plaintiff’s claims that it suffered damages by Defendant’s wrongful
termination of the Lease and prevention of the collection of advertising revenues
through the term of the Lease would still be viable. Finally, I find on the judicial
efficiency issue that certification of the removal issue is not appropriate as the only
remaining issue regarding removal should be able to be resolved promptly as there is
only a small portion of the Sign that remains in dispute.
Based upon the foregoing, it is
ORDERED that Defendant’s Motion for Certification of Final Judgment Pursuant
to F.R.C.P. 54(b) and for Stay (ECF No. 52) is DENIED. It is
FURTHER ORDERED that the parties shall jointly contact my Chambers at
(303) 844-2170 on or before Friday, January 18, 2013, to schedule a status
Dated: January 10, 2013
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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