U.S. Bank National Association et al v. Londrigan, Potter & Randle, P.C. et al

Filing 260

OPINION: Plaintiffs' Motion for Reconsideration and for Certification of Judgment for Appeal under Rule 54(b) [d/e 257] is GRANTED. Because there is no just reason to delay entry of a final judgment as to fewer than all claims or parties, the Court's Final Opinion and Judgment is hereby certified as a final order pursuant to Rule 54(b). SEE WRITTEN OPINION. Entered by Judge Richard Mills on 7/7/2021. (ME)

E-FILED

Thursday, 08 July, 2021 11:41:15 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION

CSMC 2007-C4 EGIZII PORTFOLIO LLC,

)
)
and
)
)
U.S. BANK NATIONAL ASSOCIATION,
)
as Trustee for the Registered Holders of
)
the MEZZ CAP COMMERCIAL
)
MORTGAGE TRUST 2007 C-5,
)
COMMERCIAL MORTGAGE PASS)
THROUGH CERTIFICATES, SERIES
)
2007-C5,
)
)
Plaintiffs,
)
)
v.
)
)
LONDRIGAN, POTTER & RANDLE; P.C.; )
PERKINS COIE LLP; SCOTT & SCOTT, P.C. )
SGRO HANRAHAN DURR & RABIN LLP; )
SPRINGFIELD PRAIRIE PROPERTIES,
)
LLC, an Illinois limited liability company;
)
ROBERT W. EGIZII; THOMAS EGIZII;
)
MICHAEL EGIZII; RODNEY EGIZII;
)
JODI BAPTIST; JOHN PRUITT; PAMELA )
JOHNSON, EXECUTOR OF THE ESTATE )
OF CLYDE BEIMFOHR; EEI HOLDING
)
CORPORATION; and EGIZII PROPERTY
)
MANAGERS, LLC,
)
)
Defendants.
)

OPINION
RICHARD MILLS, United States District Judge:

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Case No. 15-3195
(consolidated)

I.
In an Opinion and Order entered on June 2, 2021, the
Court denied the Plaintiffs’ motion for certification of
Judgment for appeal pursuant to Federal Rule of Civil
Procedure 54(b).
The Plaintiffs sought certification of the final Opinion
and Judgment which did not dispose of all claims because
of a bankruptcy stay as to Defendant Robert W. Egizii. The
Plaintiffs claimed that because the Opinion set forth final
judgment as to all counts except for Counts III and IV, no
just reason existed to delay enforcement of the Court’s
final Opinion. The Plaintiffs asked the Court to certify the
Judgment for appeal as to all Defendants except for Robert
W. Egizii. In its Order denying certification, the Court
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found that pursuant to Hall v. Hall, 138 S. Ct. 1118 (2018),
the March 17, 2021 Judgment dismissing the Law Firm
Defendants with prejudice was instantly appealable
because the Court had rendered a final judgment in Case
Number 15-3195 in favor of the Law Firms.
The Plaintiffs seek reconsideration of the denial of
certification for appeal.
The Plaintiffs filed two cases in 2015: one against the
Law Firm Defendants (Case No. 15-3195) and one against
the Borrower, Guarantor and other individuals and entities
(Case No. 15-3199).

The cases were eventually

consolidated.
In 2016, the Court granted the Law Firm Defendants’
motion to dismiss and denied the motion to dismiss of the
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other Defendants. The Court also denied the Plaintiffs’
motion to certify the Order for immediate appeal. In 2019,
the Court denied the Plaintiffs’ motion for entry of an
Order dismissing the Law Firm Defendants with prejudice.
Following the Court’s March 16, 2021 Opinion and
Order, one Judgment was entered which resolved all of the
claims except for those asserted against Robert W. Egizii.
This included the claims originally alleged in Case Number
15-3195 and those in Case Number 15-3199. The March
17, 2021 Judgment stated in part: “Defendants Londrigan
Potter & Randle PC, Perkins Coie, Scott & Scott PC and
Sgro Hanrahan Durr & Rabin LLP were dismissed with
prejudice.”

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On April 15, 2021, the Plaintiffs filed a timely notice
of appeal. After the Seventh Circuit questioned whether it
had jurisdiction because Judgment was not entered as to the
counts asserted against Egizii, the Plaintiffs voluntarily
dismissed their appeal and asked the Court to certify their
appeal as to all Defendants except Egizii. The Court denied
the motion for certification on the basis that Plaintiffs were
already able to pursue an appeal against the Law Firm
Defendants following entry of Judgment.
II.
In Hall, the Supreme Court noted that cases do not lose
their separate identity after consolidation. See Hall, 138 S.
Ct. at 1130. The Court explained this was true prior to the

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enactment of Federal Rule of Civil Procedure 42(a)
addressing consolidation:
We made clear, for example, that each constituent case
must be analyzed individually on appeal to ascertain
jurisdiction and to decide its disposition—a
compartmentalized analysis that would be gratuitous
if the cases had merged into a single case subject to a
single appeal. We emphasized that constituent cases
should end in separate decrees or judgments—the
traditional trigger for the right to appeal, for which
there would be no need if an appeal could arise only
from the resolution of the of the consolidated cases as
a whole. We explained that the parties to one case did
not become parties to the other by virtue of
consolidation—indicating that the right of each to
pursue his individual case on appeal should not be
compromised by the litigation conduct of the other.
And, finally, we held that consolidation could not
prejudice rights to which the parties would have been
due had consolidation never occurred. Forcing an
aggrieved party to wait for other cases to conclude
would substantially impair his ability to appeal from a
final decision fully resolving his own case—a “matter
of right” to which he was “entitled.”

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Id. at 1128 (internal citations omitted). The Court noted
that the enactment of Rule 42(a) did not alter “the settled
understanding of consolidation.” Id. at 1130.
As a leading treatise explained at the time, through
consolidation under Rule 42(a) “one or many or all of
the phases of the several actions may be merged. But
merger is never so complete in consolidation as to
deprive any party of any substantial rights which he
may have possessed had the actions proceeded
separately.” 3 J. Moore & J. Friedman, Moore’s
Federal Practice § 42.01, pp. 3050-3051 (1938). Thus,
“separate verdicts and judgments are normally
necessary.” Id. at 3051, n.12.
Id. The Court further stated that its relatively few decisions
addressing consolidation since adoption of Rule 42(a)
confirms the traditional understanding of cases retaining
their separate identity. See id.
Consistent with Hall, this Court should have directed
entry of two separate Judgments—one for the case that
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began as No. 15-3195 and the other for the case that began
as No. 15-3199. If separate judgments had been entered, it
would have been abundantly clear that the case involving
the Law Firms was ripe for appeal. As for the other case,
any party seeking to appeal could have sought certification
under Rule 54(b) or waited for resolution of the bankruptcy
proceeding.
The Plaintiffs could have pursued an appeal as to the
Law Firm Defendants after the dismissal with prejudice.
However, the fact that a single Judgment was entered
appears to have created confusion as to which claims were
ripe for appeal in light of the bankruptcy proceeding. A
party has a right to pursue an appeal. A separate judgment
is “normally necessary” in part to ensure that a party is not
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deprived of “any substantial rights.” See Hall, 138 S. Ct.
at 1130.
Under the circumstances here, denying relief would
effectively deprive a party of a substantial right it
possessed--which should not happen as a result of
consolidating cases. See id. Because separate judgments
should have been entered which would have prevented
such confusion, the Court will grant the Plaintiffs’
requested relief and certify the judgment for appeal.
This action involves multiple claims for relief and
multiple parties. The Court’s Opinion was intended to
resolve all pending claims and provide finality to the
parties. However, there could be no judgment on all of the
claims because of a bankruptcy stay as to one of the parties.
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Pursuant to Rule 54(b), the Court hereby finds there is
no just reason to delay the enforcement of the portion of
the Opinion and Order granting dismissal.
Ergo, the Plaintiffs’ Motion for Reconsideration and
for Certification of Judgment for Appeal under Rule 54(b)
[d/e 257] is GRANTED.
Because there is no just reason to delay entry of a final
judgment as to fewer than all claims or parties, the Court’s
Final Opinion and Judgment is hereby certified as a final
order pursuant to Rule 54(b).
ENTER: July 7, 2021

FOR THE COURT:
/s/ Richard Mills
Richard Mills
United States District Judge

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