Threadgill, et al v. Orleans Parish Sch, et al

Filing 256

ORDER AND REASONS granting 255 Motion for Entry of Judgment under Rule 54(b). Signed by Chief Judge Sarah S. Vance on 10/31/13. (Reference: ALL CASES)(jjs, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BUTCH THREADGILL, ET AL.

CIVIL ACTION

VERSUS

NO: 02-1122

CITY OF NEW ORLEANS, ET AL.

SECTION: R

ORDER AND REASONS
Defendants, the City of New Orleans and the Orleans Parish
School Board, along with defendant-in-cross-claim Mitchell
Crusto, have filed this joint motion for Rule 54(b) entry of
final judgment against plaintiffs Charles "Butch" Threadgill, Tom
Weems, and General Contracting and Consulting Services, LLC.
Plaintiffs do not oppose this motion.

For the following reasons,

the Court GRANTS the motion.

I. BACKGROUND
The Court has dismissed the claims of all three plaintiffs
against defendants.

The only claims remaining to be adjudicated

are the cross-claims for indemnity asserted by the City and OPSB
against Crusto.

The City's cross-claim is set forth in its

Amended Answer, Affirmative Defenses and Cross-Claims.1
Likewise, the OPSB's cross-claim is set forth in its Amended
Answer, Affirmative Defenses and Cross-Claims.2
1

R. Doc. 163.

2

R. Doc. 178.

The City and

OPSB are willing to dismiss their cross-claims for indemnity if
and when the dismissal of the plaintiffs' claims becomes a final,
unreviewable judgment.

They do not, however, want to voluntarily

dismiss their cross-claims against Crusto, only to see the
plaintiff's claims against them revived upon a successful appeal
by the plaintiffs.

Under most circumstances, the defendants

could move to dismiss their cross-claims without prejudice and
then reinstate them only if the plaintiffs successfully appeal
the judgment.

But the OPSB already filed one cross-claim against

Crusto, which was dismissed without prejudice on its own consent
motion.3

The OPSB now fears that if it were to move to dismiss

its current cross-claim, it would be barred from reinstating the
claim by Federal Rule of Civil Procedure 41(a)(1)(B), which
provides that a second voluntary dismissal of a claim operates as
an adjudication on the merits.
Accordingly, the OPSB and City now request that this Court
enter judgment against plaintiffs in this action so that the OPSB
will not be forced either to litigate a claim it is currently
willing to dismiss or to forfeit it permanently.

II. DISCUSSION
Federal Rule of Civil Procedure 54(b) empowers the Court to
"direct entry of a final judgment as to one or more, but fewer

3

R. Doc. 109.
2

than all, claims or parties."

To do so, however, the Court must

"expressly determine[] that there is no just reason for delay."
Id.

The first inquiry the Court must make is whether it is

dealing with a "final judgment."

Curtiss-Wright Corp. v. General

Electric Co., 446 U.S. 1, 7 (1980).

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 entered in the course
of a multiple claims action."

Id.

The Court has dismissed all the claims of all three
plaintiffs.

On February 28, 2013, the Court dismissed the claims

of the plaintiffs but granted leave to amend.4

Plaintiff Weems

failed to file an amended complaint within the time allotted, so
the February 28, 2013 order operated as a final dismissal of his
claims.

Threadgill and GCCS filed a timely consolidated amended

complaint against both defendants, but the Court dismissed those
claims on October 7, 2013.5

Crusto originally was made a

defendant in this action as well, but the claims of the
plaintiffs against him were resolved in arbitration, and a final
judgment was entered on June 17, 2009, confirming the
arbitrator's award in plaintiffs' favor against Crusto.6

4

R. Doc. 156.

5

R. Doc. 248; R. Doc. 249.

6

R. Doc. 84.
3

Next, the Court must determine if there is any just reason
for delay.

Ackerman v. FDIC, 973 F.2d 1221, 1224 (5th Cir. 1992)

(citing Curtiss-Wright Corp., 446 U.S. at 8).

The determination

is within the sound discretion of the district court.

Id.

It

must weigh "the inconvenience and costs of piecemeal review"
against "the danger of denying justice by delay . . . ."

Road

Sprinkler Fitters Local Union v. Cont'l Sprinkler Co., 967 F.2d
145, 148 (5th Cir. 1992) (quoting Dickinson v. Petroleum
Conversion Corp., 338 U.S. 507, 511 (1950)).

In this circuit,

Rule 54(b) judgments are not favored and should be awarded "only
when there exists some danger of hardship or injustice through
delay which would be alleviated by immediate appeal; [they]
should not be entered routinely as a courtesy to counsel."

PYCA

Indus., Inc. v. Harrison Cnty. Waste Mgmt., 81 F.3d 1412, 1421
(5th Cir. 1996) (citing Ansam Assocs., Inc. v. Cola Petroleum,
Ltd., 760 F.2d 442, 445 (2d Cir. 1985)).
Unless this Court grants defendants' motion, the OPSB is
faced with the difficult choice of either litigating an indemnity
claim that it is currently willing to dismiss or potentially
being barred by Rule 41(a)(1)(B) from reviving the claim upon a
successful appeal by the plaintiffs.

The Court finds that the

OPSB faces a danger of hardship or injustice that would be
alleviated by the entry of a final judgment against the
plaintiffs.

All parties consent to the entry of judgment, and no
4

just reason exists for delay.

Moreover, the Fifth Circuit

previously has taken jurisdiction over an appeal of a Rule 54(b)
judgment when all that remained were a party's indemnity claims.
See Bullock v. AIU Ins. Co., 503 F.3d 384, 385 & n. 1 (5th Cir.
2007) (noting that the district court had entered judgment
pursuant to Rule 54(b) because it had not adjudicated a crossclaim for indemnity, which was stayed pending the resolution of
the appeal before the Court).

Finally, granting defendants'

motion is "in the interest of sound judicial administration,"
Curtiss-Wright Corp., 446 U.S. at 8, because it avoids
potentially unnecessary litigation.

III. CONCLUSION
For the foregoing reasons, the Court GRANTS the defendants'
unopposed motion for Rule 54(b) final judgment.

IT IS ORDERED,

ADJUDGED AND DECREED that the claims of plaintiffs Tom Weems,
Butch Threadgill, and GCCS against defendants are dismissed with
prejudice.

31st
New Orleans, Louisiana, this _______ day of October, 2013.

______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

5