The Sanitary Board of The City of Charleston, West Virginia v. Colonial Surety Company et al
MEMORANDUM OPINION AND ORDER denying 469 Motion. Signed by Senior Judge John T. Copenhaver, Jr. on 11/17/2021. (cc: counsel; any unrepresented parties) (lca)
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 1 of 9 PageID #: 8946
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
THE SANITARY BOARD OF THE CITY
OF CHARLESTON, WEST VIRGINIA,
a municipal utility,
Civil Action No. 2:18-cv-01100
COLONIAL SURETY COMPANY, a
Pennsylvania corporation; and
PARTNERRE INSURANCE COMPANY OF
NEW YORK, a New York corporation,
COLONIAL SURETY COMPANY, a
TRI-STATE PIPELINE, INC., an Ohio
corporation; and ERIC D. TAYLOR,
Third-Party Defendants and
BURGESS & NIPLE, INC., an Ohio
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 2 of 9 PageID #: 8947
MEMORANDUM OPINION AND ORDER
Pending is third-party defendant and fourth-party
plaintiff Tri-State Pipeline, Inc.’s (“Tri-State”) Motion to
Certify Partial Summary Judgment Orders for Appeal and to Stay
Proceedings, filed September 7, 2021.
ECF No. 469.
party defendant Burgess & Niple, Inc. (“Burgess & Niple”) filed
a response in opposition on October 20, 2021.
ECF No. 477.
November 4, 2021, plaintiff the Sanitary Board of Charleston,
West Virginia (“Sanitary Board”) joined in Burgess & Niple’s
ECF No. 480.
November 12, 2021.
Tri-State filed a reply memorandum on
ECF No. 481.
No response has been filed by
defendant and third-party plaintiff Colonial Insurance Company
(“Colonial”) or defendant PartnerRe Insurance Company of New
This case arises from a project to improve the sewer
system in Charleston, West Virginia.
The Sanitary Board entered
into a contract with Burgess & Niple, an engineering firm,
whereby Burgess & Niple would provide professional services for
the design and management of certain sewer system improvements.
The Sanitary Board also entered into a contract with Tri-State
for the performance of the project.
When Tri-State failed to
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 3 of 9 PageID #: 8948
meet the substantial completion deadline, the Sanitary Board
sent Tri-State a notice of intent to terminate for cause and
ultimately terminated the contract.
In June of 2018, the Sanitary Board filed this action
against Colonial Surety Company, a surety for Tri-State, and
PartnerRe Insurance Company of New York, a co-surety and/or
ECF No. 1.
Colonial filed a third-party complaint
against Tri-State and its president Eric D. Taylor.
ECF No. 16.
Tri-State thereafter filed a crossclaim for breach of contract
against the Sanitary Board, and the Sanitary Board responded
with a counterclaim for breach of contract against Tri-State.
ECF No. 22; ECF No. 76.
Tri-State also filed a fourth-party
complaint against Burgess & Niple asserting a single claim of
ECF No. 22.
negligence claim against Burgess & Niple is based in part on 57
underlying “claims” it delivered Burgess & Niple which related
to problems it encountered during its work on the project.
On August 27, 2021, the court entered two relevant
memorandum opinion and orders.
ECF No. 467; ECF No. 468.
the first order, the court granted partial summary judgment in
favor of the Sanitary Board finding that the Sanitary Board had
appropriately terminated its contract with Tri-State for cause.
ECF No. 467, at 93.
Accordingly, the Court dismissed Tri3
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 4 of 9 PageID #: 8949
State’s breach of contact crossclaim against the Sanitary Board
except to the extent the crossclaim asserted entitlement to
compensation for two specific claims Tri-State submitted related
to problems it encountered during its work on the sewer project.
In the second order, the court granted partial summary
judgment in favor of Burgess & Niple finding that the parties
had not waived, amended, or abrogated the contractual provision
that required Tri-State to provide written substantiation within
sixty days of the event giving rise to a claim for problems
encountered during the project and therefore that many the of
claims submitted by Tri-State were untimely.
ECF No. 468, at
Accordingly, the court concluded that “Tri-State’s
professional negligence claim may proceed on a limited basis,”
allowing it to pursue the claim insofar as it concerns nine of
the 57 original claims as well as an incident that occurred on a
“lateral” sewer line.
Legal Standard & Analysis
Pursuant to the Federal Rules of Civil Procedure,
[w]hen 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
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 5 of 9 PageID #: 8950
if the court expressly determines that there is
no just reason for delay.
Fed. R. Civ. P. 54(b).
Generally, however, “any order or other
decision, however designated, that adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the
parties does not end the action as to any of the claims or
parties . . ..”
Rule 54(b) certification is recognized as the
exception rather than the norm.
While the court is vested with
discretion to determine whether certification is appropriate, it
should not be granted routinely.
See Curtiss-Wright Corp. v.
Gen. Elec. Co., 446 U.S. 1, 10 (1980).
Certification is to be “reserved for the unusual case
in which the costs and risks of multiplying the number of
proceedings and overcrowding the appellate docket are
outbalanced by pressing needs of the litigants for an early and
separate judgment as to some claims or parties.”
Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981).
the moving party’s burden to demonstrate that certification is
Braswell Shipyards, Inc. v. Beazer East, Inc., 2
F.3d 1331, 1335 (4th Cir. 1993).
In determining whether certification is warranted, the
court must first determine whether the relevant judgment is
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 6 of 9 PageID #: 8951
Second, “the court must determine whether there is
no just reason for delay in the entry of judgment.”
determine whether there is no just reason for delay, the court
is to consider the following factors:
(1) the relationship between the adjudicated and
unadjudicated claims; (2) the possibility that
the need for review might or might not be mooted
by future developments in the district court; (3)
the possibility that the reviewing court might be
obliged to consider the same issue a second time;
(4) the presence or absence of a claim or
counterclaim which could result in a set-off
against the judgment sought to be made final; (5)
miscellaneous factors such as delay, economic and
solvency considerations, shortening the time of
trial, frivolity of competing claims, expense,
and the like.
Id. at 1335−36.
Tri-State argues that the court’s partial summary
judgment orders are final judgments for the purpose of Rule
54(b) and seeks certification of the orders as such.
470, at 3.
A judgment is final when it is “an ultimate
disposition of an individual claim entered in the course of a
multiple claims action.”
Sears, Roebuck & Co. v. Mackey, 351
U.S. 427, 436 (1956); MCI Constructors, LLC v. City of
Greensboro, 610 F.3d 849, 855 (4th Cir. 2010).
As Burgess &
Niple noted in its response, Tri-State brought only one claim
against the Sanitary Board and one claim against Burgess &
See ECF No. 477, at 7.
Although the court dismissed
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 7 of 9 PageID #: 8952
certain portions of those claims, the remainder of the claims
are unadjudicated and no ultimate disposition or final judgment
has been made.
Accordingly, Rule 54 certification is not
However, even if the court were to accept Tri-State’s
argument that each of the decided issues are standalone claims
that could be deemed final judgments, 1 the court finds that there
is just reason to delay entry of judgment.
The court agrees
that absent a settlement between the parties, it is unlikely
that the need for appellate review will be mooted.
Additionally, the court agrees with Tri-State that there is no
pending claim or counterclaim which could result in a set-off
against the judgments Tri-State seeks to be made final.
Nevertheless, the court finds that the remaining factors set
forth in Braswell weigh heavily against certification.
Regarding the first factor, there is substantial
similarity between the adjudicated and unadjudicated claims.
Whether Tri-State was properly terminated for cause is factually
related to its performance under the contract, which in turn is
To this end, Tri-State argues that “claims” under Rule
56(b) are not limited to “causes of action,” but rather “an
aggregation of operative facts that give rise to rights
enforceable by a court.” ECF No. 481, at 3 (citing In re Fifth
Third Early Access Cash Advance Litig., 925 F.3d 265, 274 (6th
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 8 of 9 PageID #: 8953
related to the remainder of Tri-State’s crossclaim against the
Sanitary Board for extra or changed work on the sewer system.
Similarly, each of the claims underlying Tri-State’s
professional negligence claim against Burgess & Niple are
related to Tri-State’s performance of the sewer project and
compliance with the General Conditions that were incorporated
into the contract between the Sanitary Board and Tri-State, as
well as Burgess & Niple’s duties under the same.
With regard to the third factor, certification at this
stage raises a strong possibility that the appellate court would
be obliged to consider the same or substantially similar issues
a second time upon resolution of the rest of the case.
Finally, and most significantly, the “miscellaneous
factors” contemplated by Braswell’s fifth factor suggest that
immediate appeal is unwarranted.
Although Tri-State argues that
it will be prejudiced if it cannot appeal the court’s orders
now, this case involves numerous parties and causes of action
and has been pending for nearly three years.
toward resolution has occurred.
Certification, particularly in
light of Tri-State’s requested stay, would result in additional
delay and additional expenses before this case is resolved at
the trial court level.
Case 2:18-cv-01100 Document 485 Filed 11/17/21 Page 9 of 9 PageID #: 8954
Ultimately, there is a strong federal policy against
piecemeal appellate review, and Tri-State, despite the able
effort of its counsel, has failed to establish any exceptional
circumstances that justify use of the measures set forth in Rule
Inasmuch as Rule 54 certification is not appropriate,
Tri-State’s request to stay this civil action pending appeal is
denied as moot.
Based on the foregoing, it is ORDERED that Tri-State
Pipeline’s Motion to Certify Partial Summary Judgment Orders for
Appeal and Stay Proceedings be, and hereby is, DENIED.
The Clerk is directed to transmit copies of this order
to all counsel of record and any unrepresented parties.
November 17, 2021
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?