Thiel v. United States Department of Agriculture
Filing
81
FINDINGS AND RECOMMENDATIONS re 75 First MOTION for Entry of Judgment under Rule 54(b) filed by Annette L. Thiel. IT IS RECOMMENDED that the Motion for Final Judgment Under Rule 54(b) be DENIED. Objections to F&R due by 10/19/2012 Signed by Magistrate Carolyn S Ostby on 10/2/2012. (JDH, ) Modified on 10/2/2012 to change document type (JDH, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
ANNETTE L. THIEL, dba SWEET
VALLEY PRODUCE,
CV 09-168-BLG-RFC-CSO
FINDINGS &
RECOMMENDATION
Plaintiff,
vs.
ANN M. VENEMAN, SECRETARY
OF UNITED STATES
DEPARTMENT OF
AGRICULTURE, FARM SERVICE
AGENCY (“FSA”), LAWRENCE
NAYES, Individually and as an
agent of the Defendant FSA,
JEFFREY JANSHEN, Individually
and as an agent of the Defendant
FSA,
Defendants.
Plaintiff Annette L. Thiel (“Thiel”) filed this action seeking
damages allegedly resulting from Defendants’ commercial lending
policies and practices. Now pending before the Court is Thiel’s Motion
for Entry of Judgment under Rule 54(b). DKT 75. For reasons set forth
below, the Court recommends that this motion be denied.
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I.
PERTINENT BACKGROUND
On October 12, 2011, the undersigned filed Findings and
Recommendations, recommending that Defendants’ motion to dismiss
for lack of subject matter jurisdiction and for failure to state a claim be
granted in part and denied in part. DKT 53. After considering Thiel’s
objections, Chief Judge Cebull adopted the Findings and
Recommendations. DKT 62. Upon entry of his Order, all parties
remained in the case.
On March 27, 2012, Thiel filed an appeal with the Ninth Circuit
Court of Appeals. DKT 64. On April 19, 2012, the Court of Appeals
noted that the district court’s order “did not dispose of all the action as
to all claims and all parties” and ordered Thiel to show cause why the
appeal should not be dismissed for lack of jurisdiction. Thiel v.
Veneman, Circuit No. 12-35231, DktEntry 4 (04/19/2012).
On May 4, 2012, Thiel responded that “it appears that this
[appellate] court is technically correct” and that “it appears that a Rule
54(b) certification is in order.” Id. at DktEntry 5-1 (Appellant’s Showing
of Cause Why Her Appeal Should Not be Dismissed). Thiel also
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indicated an intent to bring the present motion pursuant to Fed. R. Civ.
P. 54(b), and requested that the appellate court stay other proceedings
in the district court. Id. at 2.
On May 25, 2012, Thiel filed the motion here under review,
captioned “Plaintiffs [sic] Motion for Final Judgment Under Rule
54(b).” DKT 75.1 Defendants oppose the motion.
On July 17, 2012, the Court of Appeals ordered:
The motion to stay district court proceedings is held in abeyance
pending determination of the motion for entry of judgment
pending in the district court. Within 14 days after the district
court rules on the motion for entry of judgment, appellant shall
file a status report in this court, or a motion for appropriate relief.
Briefing remains suspended.
Id. DktEntry 12.2
II.
PARTIES’ ARGUMENTS
In support of her motion, Thiel argues that the District Court’s
1
Thiel did not separately file her supporting brief, as required by
Local Rule 7.1(d)(1)(A), which states: “Briefs in support of a motion
must be filed separately from the motion.” Nor does Thiel’s brief
comply with the requirements of Local Rule1.5(a) as to the proper form
for filed documents.
2
Neither the Court of Appeals nor the parties provided this Order
to the District Court.
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decision “effectively gutted most of [her] case against the Defendants”
and that if the case proceeds to trial under that decision, and if the
Ninth Circuit reverses the decision, then “the first trial will have been
a waste of time....” DKT 75 at 4. Thiel argues that the three
requirements of Fed. R. Civ. P. 54(b) have been met – that is, (1) the
case includes multiple claims; (2) the court rendered a final decision on
at least one of those claims; and (3) there is no just reason for delay and
more delay will impose a hardship on her.
In their response, Defendants first argue that there has been no
final determination of an individual claim but rather a limitation of
claims. Citing Arizona State Carpenters Pension Trust Fund v. Miller,
938 F.2d 1038, 1039-40 (9th Cir. 1991), Defendants assert that a partial
adjudication of a single claim is not appealable under Rule 54(b). Even
if there were an appealable ruling, Defendants argue that
considerations of judicial efficiency preclude entry of a final judgment
here. Defendants state that this case is “not one of the ‘infrequent
harsh’ cases that warrant interlocutory appeal, nor is there a ‘seriously
important reason’ that compels the immediate litigation of Thiel’s
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putative appeal.” DKT 76 at 7.
In reply, Thiel states that there has been a final determination of
several claims. Although her argument is not entirely clear, it appears
that Thiel contends that there has been a final determination of Counts
3, and 4. See DKT 80 at 4-5. Thiel also specifically refers to: (1) the
Court’s ruling on the Equal Credit Opportunity Act’s (ECOA), 15 U.S.C.
§ 1691, statute of limitations which limited her potential recovery to
the two years preceding the filing of her Complaint, (2) dismissal of
claims based on the Noninsured Crop Disaster Assistance Program
(“NAP”); (3) Count 3 regarding alleged CFR violations; and (4)
dismissal of punitive damages claims against the federal government.
See DKTs 75 at 8, 80 at 7.
III. ANALYSIS
A judgment entered as to fewer than all claims is generally not
immediately appealable. But, pursuant to Fed. R. Civ. P. 54(b), a
district court “may direct entry of a final judgment as to one or more
[claims] ... if the court expressly determines that there is no just reason
for delay. In considering a request to enter a final judgment under
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54(b), a district court “must first determine that 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, 442 F.3d 873, 878 (9th Cir. 2005), citing
Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 7 (1980). If it
finds that there has been an ultimate disposition of an individual claim,
the district court must then determine whether there is any just reason
for delay. See also S.E.C. v. Platforms Wireless Intern. Corp., 617 F.3d
1072, 1084-85 (9th Cir. 2010) (confirming that “[r]eviewing the
propriety of a Rule 54(b) certification is a two-step-process”).
Turning to the first inquiry, the Court must examine whether any
of the challenged rulings amount to ultimate dispositions of individual
claims. This can be a complex question for the “line between deciding
one of several claims and deciding only part of a single claim is
sometimes very obscure.” Wright, Miller & Kane, Federal Practice and
Procedure 3d §2657 at 68.
In its Findings and Recommendations, the Court reviewed Thiel’s
contentions (DKT 53 at 2-8) and summarized as follows the claims
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presented in her Second Amended Complaint (“SAC”):
Count 1: Defendants discriminated against Thiel because of her
sex, race, national origin, and disability with respect to a
commercial loan in violation of the ECOA;
Count 2: Defendants discriminated against her as a member
of a protected class, because of sex, race, national origin, and
disability, with respect to her right to make and enforce contracts
free from impairment by nongovernmental discrimination, in
violation of 42 U.S.C. § 1981(a), (b), and (c),;
Count 3: Defendants violated the CFRs applicable to her, and to
her loan processing, servicing, and counseling rights, and failed to
promulgate CFRs in various instances;
Count 4: Defendants, including Janshen and Nayes, acted
maliciously, fraudulently, wantonly, and oppressively toward her,
for which she is entitled to punitive damages;
Count 5: Defendants’ acts caused her to suffer severe and
substantial emotional distress including humiliation, being held
up to scorn in her community, and other physical and mental
anguish; and
Count 6: Defendants violated her due process rights under the
Montana and U.S. Constitutions by denying her property and
funds without proper notice and hearing, and failed to safeguard
her due process and equal protection rights in denying loans and
other entitlements.
Id. at 8-9.
After the District Court’s rulings, the following claims remain:
Count 1: Count 1 remains pending but is limited to the two-year
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period within the statute of limitations, may not be based on
alleged denial of NAP benefits, and may not be based on claims of
alleged disability. All other ECOA claims remain pending under
Count 1.
Count 2: This claim remains pending.
Count 3: This claim was dismissed for failure to state a claim,
without prejudice to her ability to move for leave to amend.
Count 4: This claim seeks punitive damages based on the
remaining claims. It was dismissed only as to the federal
government, but remains pending as to the individual defendants.
Count 5 and 6: These claims remain pending.
Accordingly, the only claim dismissed in its entirety was Count 3.
This dismissal was without prejudice to amendment, however, so does
not form the basis for a final judgment under Rule 54(b). See Indian
Oasis-Baboquivari Unified School Dist. No. 40 v. Kirk, 109 F.3d 634
(9th Cir 1997). In Kirk, as here, the plaintiffs appealed without
obtaining an order pursuant to Rule 54(b). The Ninth Circuit held: “We
now specifically rule that a plaintiff, who has been given leave to
amend, may not file a notice of appeal simply because he does not
choose to file an amended complaint. A further district court
determination must be obtained.” Id. at 636. Thus, this Court
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concludes that a Rule 54(b) order with respect to the dismissal of Count
3 would be improper.
Thiel’s primary concern appears to be that the District Court
“effectively gutted” her case by the limitations imposed on Count 1,
particularly the statute of limitations ruling. See DKT 75 at 4, 80 at 7.
This Court understands Thiel’s concerns about proceeding to trial on
the remainder of the ECOA claims, knowing that if this ruling is
reversed, a new trial may be necessary. But the courts that have
considered this precise issue have ruled that, where part of the time
period remains, a final order under Rule 54(b) is not proper.
In Minority Police Officers Assoc. v. City of South Bend, 721 F.2d
197, 201 (7th Cir. 1983), policemen brought suit alleging discrimination
against blacks and Hispanics in hiring and promotions. The district
court granted partial summary judgment on three issues, including a
statute of limitations issue, and certified the order for appeal under
Rule 54(b). The Seventh Circuit reversed, finding that the statute-oflimitations ruling was “outside the scope of Rule 54(b).” Id. The court
found that the presumption should be against characterizing a pleading
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as containing multiple claims for relief rather than one claim. Id. at
200. The court noted the “grave practical objections” to reading Rule
54(b) too broadly, noting the heavy caseload of the federal courts of
appeals and finding: “Even if we decide all the issues raised by the
present appeal, we are quite likely to have to decide a subsequent
appeal in this case some day – the appeal from whatever final judgment
the district judge enters on the claim of intentional discrimination that
remains pending before him.” Id. at 200. The court further explained:
In a purely verbal sense both rulings disposed of separate claims:
claims based on the time-barred acts, and claims of class members
not named as plaintiffs. But the factual overlap appears to be
complete. It is true that the alleged acts of discrimination
occurred at different times and that those that occurred more
than two years before the complaint was filed could not, under the
district court's view, support a claim for relief. But the early acts
would still be admissible, and would undoubtedly be introduced,
to show the defendants' discriminatory motives and the scope and
pattern of their unlawful conduct. Cf. Schwartz v. Eaton, 264 F.2d
195, 197-98 (2d Cir.1959). So whether we affirmed or reversed the
district court's partial summary judgment in favor of the
defendants on the time-barred claims, we would have to relearn
the same set of facts if and when the case came back to us on
appeal from the district judge's final judgment on the timely
claims.
Id. at 201.
Under similar facts, the Eleventh Circuit reached a similar result,
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writing:
Even if we assume – contrary to reality – that the four categories
of averments in the complaint are separable claims for Rule 54(b)
purposes, although the statute of limitations ruling cuts across
two of them, it did not dispose entirely of any one of the four
categories.
****
Because the district court's statute of limitations ruling did not
dispose of separable claims, it was not a final judgment within the
meaning of Rule 54(b). Instead, the ruling was merely an
interlocutory order, which cannot be transformed under Rule
54(b) into a final order for purposes of expediting an appeal.
Accordingly, we lack jurisdiction to review it.
In re Southeast Banking Corp., 69 F.3d 1539, 1548-49 (11th Cir. 1995)
(citations omitted). These rulings are consistent with the Ninth
Circuit’s holding in Wood, supra (422 F.2d at 879), in which the court
discouraged “piecemeal appeals in cases which should be reviewed only
as single units.”
Like the case at issue in Wood, Thiel’s case is a discrimination
action. Even if the appeal of the order partially granting dismissal of
portions of some of Thiel’s claims were to proceed, it is likely that the
case would again be appealed on the same facts. The practical effect of
certifying the decision on a part of her ECOA claims (for example, on
the NAP, disability contentions, and punitive damages) would
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effectively deconstruct her discrimination claims “so as to allow
piecemeal appeals with respect to the same set of facts.” Id. at 880.
See also Arizona State Carpenters Pension Trust Fund v. Miller, supra,
938 F.2d at 1040 (finding that a count for punitive damages is not
“separate and distinct” from the remainder of the counts in the
complaint).
Because the court finds that the present motion fails under the
first part of the test, it need not reach the second part, i.e., the
equitable considerations regarding the delay in the proceedings. The
Court does note, however, that the filing of Thiel’s appeal has likely
delayed the ultimate disposition of this matter. As noted in Wood,
‘[t]he reality is that if this case had gone to trial in the ordinary course,
it would long since have been over and done with.” Id. at 883. This
case has been pending nearly three years, having been delayed in large
part by the parties’ repeated requests for extensions of time. See, e.g.,
DKTs 8, 11, 16, 21, 35, 38, 47, 50, 54, 56, 59. Piecemeal appeals
threaten to further prolong, rather than shorten, the time to final
disposition of this relatively straightforward discrimination case.
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IV.
CONCLUSION
For the reasons set forth above, IT IS RECOMMENDED that the
Motion for Final Judgment Under Rule 54(b) be DENIED.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendations of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendations must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after service
hereof, or objection is waived.
DATED this 2nd day of October, 2012.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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