RS-ANB Fund, LP v. KMS SPE LLC et al

Filing 179

MEMORANDUM DECISION AND ORDER granting 171 Motion for Entry of Judgment under Rule 54(b). Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (krb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RS-ANB FUND, LP,

Lead Case No. 4:11-cv-00175-BLW

Plaintiff/Counterdefendant,
v.
KMS SPE LLC, LIZ AIR 6 L.L.C.,
JERALD M. SPILSBURY, KINGSTON
PROPERTIES L.P., MIKE KINGSTON,
PAUL E. AVERY, BERT BOECKMANN
AND JANE BOECKMANN, TRUSTEES
OF THE BOECKMANN FAMILY
REVOCABLE TRUST, ANDARY
INVESTMENTS 2 LLC and RGRCM LLC,

MEMORANDUM DECISION AND
ORDER

Defendants/Counterclaimants.

KMS SPE, LLC
Plaintiff/Counterdefendant,
v.
RS-ANB Funds, LP,
Defendant/Counterclaimant.

MEMORANDUM DECISION AND ORDER - 1

Consolidated Case No. 4:11-cv-00179BLW

RS-ANB Fund, LP,

Consolidated Case No. 4:11-cv-00179BLW

Plaintiff,
v.
DAVID ORVILLE KINGSTON,
Defendant.

INTRODUCTION
Before the Court is David Orville Kingston’s Motion for Rule 54(b) Final
Judgment (Dkt. 171). Kingston asks the Court to enter a final judgment of dismissal with
respect to with respect to Case No. 4:11-mc-07113-BLW – the adversary proceeding
brought against him by Plaintiff RS-ANB Fund, LP (“RS”). For the reasons set forth
below the Court will grant the Motion.
ANALYSIS
RS’s adversary proceeding against Kingston came to an end on April 16, 2012,
when the Court dismissed with prejudice what was left of it. Its consolidation with two
other cases, however, means the dismissal is not final for appeal purposes. Kingston asks
the Court to enter final judgment on the grounds that it would aid in the administration of
Kingston’s ongoing Chapter 11 bankruptcy case.

MEMORANDUM DECISION AND ORDER - 2

When more than one claim for relief is presented to a court, Rule 54(b) allows that
court to “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.” Fed. R. Civ. Pro. 54(b). The
Court must first determine whether it has “rendered a final judgment, that is, a judgment
that is an ultimate disposition of an individual claim entered in the course of a multiple
claims action.” Wood v. GCC Bend, LLC, 422 F.3d 873, 878 (9th Cir. 2005). Here, all
claims against David Kingston have been finally and completely resolved. By finding RS
failed to state a claim against Kingston, the Court has rendered a final disposition of
RS’s claims against Kingston.
The Court must next decide whether “there is any just reason for delay.” Id. This
inquiry requires the Court to consider “the interest of sound judicial administration” and a
weighing of the equities at stake. Id.As Kingston acknowledges, the interest of sound
judicial administration usually seeks to preserve the federal policy against piecemeal
appeals. “A Rule 54(b) request should not be granted when ‘the facts on all claims and
issues entirely overlap, and successive appeals are essentially inevitable.’ ” Hansen-Rice,
Inc. v. Celotex Corp., CV-04-101-S-BLW, 2006 WL 1660797, *3 (D.Idaho 2006)
(quoting Wood, LLC, 422 F.3d at 883). But that is not the case here. Kingston was not a
party to the Participation Agreement, which lies at the heart of RS’s claims against the

MEMORANDUM DECISION AND ORDER - 3

remaining parties. Thus, Kingston’s claims are sufficiently distinct from the other claims
to stave off the potential for wasteful piecemeal appeals.
It is also important to note that RS never objected to Kingston’s request. The
Ninth Circuit has held that pursuant to a local rule a district court may properly grant a
motion based upon a party's failure to respond. See generally, Ghazali v. Moran, 46 F.3d
52, 53 (9th Cir.1995); accord Martinez v. Stanford, 323 F.3d 1178, 1183 (9th Cir.2003)
(affirming Ghazali's applicability to Rule 12(b) motions). Moreover, Local Civil Rule
7.1(e) expressly provides that a party's failure to file either a notice of non-opposition, or
a memorandum in opposition to a motion, may be deemed as a consent to the relief
requested. D. Id. L. Civ. R. 7.1(e). RS’s failure to respond to the motion also justifies
acceding to Kingston’s request.
ORDER
IT IS ORDERED that David Orville Kingston’s Motion for Rule 54(b) Final
Judgment (Dkt. 171) is GRANTED.

DATED: June 27, 2012

_________________________
B. Lynn Winmill
Chief Judge
United States District Court
MEMORANDUM DECISION AND ORDER - 4