Tiscareno et al v. Frasier et al

Filing 253

MEMORANDUM DECISION and Order Denying Defendant Richard Anderson's Motion for Rule 54(b)Certification- denying 212 Motion for Entry of Judgment under Rule 54(b). See Order for details. Signed by Judge Clark Waddoups on 11/5/12. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

ABBY TISCARENO, et al.,

MEMORANDUM DECISION AND
ORDER DENYING DEFENDANT
RICHARD ANDERSON’S MOTION FOR
RULE 54(b) CERTIFICATION

Plaintiffs,
v.
LORI FRASIER, et al.,

Case No. 2:07-CV-336

Defendants.

Judge Clark Waddoups

Following the court’s Memorandum Decision and Order dated April 19, 2012 dismissing
Plaintiffs’ state constitutional claims against Defendant Richard Anderson [Dkt. No. 209], Mr.
Anderson, through counsel, filed a Motion for Rule 54(b) Certification [Dkt. No. 212]. Mr.
Anderson’s motion ultimately rests upon the argument that “[e]ntry of a final judgment in favor
of Richard Anderson will prevent the prejudice to him that would be caused by requiring him
possibly to wait several years before a final disposition in this case occurs.” (Def. Anderson’s
Mem. Supp. Mot. 54(b) Cert., 3) [Dkt. No. 213].
Co-defendant Lori Frasier, through counsel, opposed Mr. Anderson’s motion. [Dkt. No.
219.] Dr. Frasier argues that “the lack of finality alone, when all claims against the defendant
have been dismissed, does not meet the requisite hardship required for Rule 54(b) certification.”
(Def. Frasier’s Opp. Mot. for Rule 54(b) Cert., 10) [Dkt. No. 219] (citing Ulibarri v. City &
County of Denver, No. 07-cv-01814-WDM-MJW, 2011 U.S. Dist. LEXIS 41002 (D. Colo. Apr.
6, 2011)). The court agrees and, therefore, need not address Dr. Frasier’s other arguments as to

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the separability of the claims against Mr. Anderson from Plaintiffs’ still pending claims against
Dr. Frasier.
“Rule 54(b) entries are not to be made routinely.” Okla. Turnpike Auth. v. Bruner, 259
F.3d 1236, 1242 (10th Cir. 2001) (internal quotations and citations omitted). The court finds this
especially to be the case where, as here, there is significant risk that granting the motion for Rule
54(b) certification could unnecessarily prolong an already years-long litigation process between
the parties. Such an outcome would be entirely contrary to “the limited purpose of protecting
litigants from undue hardship and delay” underlying Rule 54(b)’s partial final judgment
mechanism. Jordan v. Pugh, 425 F.3d 820, 829 (10th Cir. 2005).
Here, as in Ulibarri, Mr. Anderson has filed the motion for 54(b) certification “not for the
purpose of commencing an appeal but rather, apparently, simply to have finality.” Ulibarri, 2011
U.S. Dist. LEXIS 41002 at *2. Mr. Anderson has not made a convincing showing that this is one
of the “infrequent harsh case[s]” in which Rule 54(b) certification would provide “recourse for
litigants when dismissal of less than all their claims will create undue hardships.” Gas-A-Car,
Inc. v. American Petrofina, Inc., 484 F.2d 1102, 1105 (10th Cir. 1973). Dr. Frasier, on the other
hand, points out that granting Mr. Anderson’s motion could result in significant hardship for her
and other parties. If the motion were granted, “Plaintiffs would be forced to decide now whether
to pursue an appeal of the Court’s April 19, 2012 Order. If they were to do so either Plaintiffs
would have to litigate both this case and the partial appeal simultaneously, or Dr. Frasier and the
other remaining Defendants would be forced to endure another lengthy stay in the case.” (Def.
Frasier’s Opp. Mot. for Rule 54(b) Cert., 10) [Dkt. No. 219].
Balancing either outcome against Mr. Anderson’s lack of finality results in a finding that
the other parties could face greater hardship than Mr. Anderson if the court granted Mr.

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Anderson’s motion. In fact, “Dr. Frasier and the other remaining Defendants have already
experienced an approximately year and a half stay in the proceedings during the pendency of Mr.
Anderson’s December 29, 2009 appeal.” Id. The prospect of another similar stay should
Plaintiffs decide they need to appeal the April 19, 2012 order as to Mr. Anderson at this time
would undermine judicial economy, especially where, as here, the hardship potentially faced by
the other parties outweighs any prejudice of the delay on Mr. Anderson.
Accordingly, the court DENIES Defendant Richard Anderson’s Motion for Rule 54(b)
Certification [Dkt. No. 212].
SO ORDERED this 5th day of November, 2012.
BY THE COURT:

____________________________________
Clark Waddoups
United States District Judge

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