Emcasco Insurance Company et al v. Custom Mechanical Equipment, Inc. et al

Filing 140

ORDER (1) granting 129 CED's motion for entry of final judgment in this case; and (2) finding that Counts IV and VI of plaintiffs' Amended Complaint are currently MOOT. Plaintiffs may seek leave to reopen this case to proceed with Counts IV and VI if the Tenth Circuit reverses the Court's ruling on the cross motions for summary judgment. Signed by Honorable Vicki Miles-LaGrange on 5/5/2014. (njr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
EMCASCO INSURANCE COMPANY
and EMPLOYERS MUTUAL
CASUALTY COMPANY,
Plaintiffs,
v.
CUSTOM MECHANICAL
EQUIPMENT, INC., CUSTOM
MECHANICAL EQUIPMENT OF
WISCONSIN, LLC, CUSTOM
MECHANICAL EQUIPMENT, LLC
and CE DESIGN LTD.,
Defendants,
and
CE DESIGN LTD.,
Defendant/Counter-Plaintiff,
v.
EMCASCO INSURANCE COMPANY
and EMPLOYERS MUTUAL
CASUALTY COMPANY,
Plaintiffs/Counter-Defendants.

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Case No. CIV-11-1494-M

ORDER
Before the Court is CE Design LTD.’s (“CED”) Motion for Entry of Final Judgment or,
in the Alternative, Rule 54(b) Certification in Accordance with the Court’s Summary Judgment
Decision, filed April 17, 2014. On April 24, 2014, plaintiffs filed their response, and on May 1,
2014, CED replied. On May 2, 2014, as directed by the Court, plaintiffs filed a sur-reply. Based
on the parties’ submissions, the Court makes its determination.

On February 18, 2014, this Court entered an Order granting plaintiffs’ Motion for
Summary Judgment as to Counts I, II, III, and V of their Amended Complaint for Declaratory
Judgment (“Amended Complaint”) and denying CED’s Motion for Summary Judgment.
Alternative Counts IV and VI of the Amended Complaint were not addressed in either of the
parties’ motions for summary judgment and, therefore, these claims have yet to be disposed of
by this Court.1 On March 19, 2014, CED appealed this Court’s Order to the United States Court
of Appeals for the Tenth Circuit. On April 3, 2014, the Tenth Circuit tolled all briefing in this
matter until CED obtained from this Court a proper Rule 54(b) certification or a final judgment
adjudicating all remaining claims.
The Tenth Circuit has held that:
Premature notice of appeal from order disposing of less than all of
claims in case is effective, where appellant obtains a certification
or a final adjudication of matter before appeal is considered on its
merits;
Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645 (10th Cir. 1988). Federal Rule of Civil Procedure
54(b) provides in part:
Judgment on Multiple Claims or Involving Multiple Parties.
When an action presents more than one claim for relief--whether as
a claim, counterclaim, crossclaim, or third-party claim--or when
multiple parties are involved, the court may direct entry of a final
judgment as to one or more, but fewer than all, claims or parties
only if the court expressly determines that there is no just reason
for delay.
Fed. R. Civ. P. 54(b).

1

The parties severed this matter into two phases. Phase I consists of the litigation of
Counts I, II, III, and V of plaintiffs’ Amended Complaint. Phase II consists of the litigation of
Counts IV and VI. Phase II of the matter will only proceed if the outcome in phase I is not
favorable for plaintiffs.
2

CED asserts that final judgment is warranted in this case because the Court granted
plaintiff’s motion for summary judgment as to Counts I, II, III, and V, rendering Counts IV and
VI moot. Plaintiffs contend that Counts VI and VI are not yet moot, but will be if this Court’s
ruling on the cross motions for summary judgment is affirmed. Pls.’ Sur-Reply at 3. Plaintiffs
request this Court enter judgment in favor of plaintiffs as to Counts I, II, III, and V, and as to
CED’s entire Counterclaim, and certify the judgment for appeal under Rule 54(b). Pls. Resp. at
3.
Having carefully reviewed the parties’ submissions, the Court finds that a final judgment
is warranted in this case. With the Court’s ruling on Counts I, II, III, and V of the Amended
Complaint, the remaining Counts IV and VI are effectively moot at this time.2 Accordingly, for
reasons set forth above, the Court GRANTS CE Design LTD.’s Motion for Entry of Final
Judgment or, in the Alternative, Rule 54(b) Certification in Accordance with the Court’s
Summary Judgment Decision [docket no. 129] as follows:
1. The Court GRANTS CED’s motion for entry of final judgment in this case; and
2. The Court FINDS that Counts IV and VI of plaintiffs’ Amended Complaint are
currently MOOT. Plaintiffs may seek leave to reopen this case to proceed with
Counts IV and VI if the Tenth Circuit reverses the Court’s ruling on the cross
motions for summary judgment.
IT IS SO ORDERED this 5th day of May, 2014.

2

The Court recognizes that if its decision on the cross motions for summary judgment is
reversed by the Tenth Circuit; there will be a need for the remaining Counts IV and VI of
plaintiffs’ Amended Complaint to be litigated. If this occurs, plaintiffs will have the opportunity
to reopen the case to address those Counts.
3