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No. 96-1777
Plaintiffs, Appellants,
v.
Defendant, Appellee.
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Before
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S. Nathanson,
with whom
Shannon M.
Fitzpatrick and
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Per Curiam.
Per Curiam.
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This
again that
the
overly generous
intentioned district
and
use of
Fed. R.
Civ. P.
54(b) by
a well-
that haste
when
makes waste.
judges
too readily
acquiesce
untoward consequences
in the
suggested
entry of
The
plaintiffs
Peabody,
basic
owned
valuable
Massachusetts.
into receivership,
mortgage
procedural
on
Corporation.
facts
commercial
After
are
real estate
their original
the property
from
undisputed.
the
located
The
in
lender plummeted
Federal Deposit
Insurance
The plaintiffs
agreement
economic
trade
to
(count
relationships (count
practices in
(count 5).
the
forbear
forbearance
wrongful
2), fraud
violation of
The plaintiffs
supposed
1),
interference
(count 3),
Mass. Gen.
L. ch.
agreement (count
4)
breach of an
with
and unfair
93A,
11
performance of
and declaratory
mortgage note,
in respect thereto.
Cadle
price
that
counterclaimed
the
property
had
brought
at
auction,
and
mortgage note.
granted
dispatched counts
count
and
thereafter
Although the
1, 2, 3,
Cadle's
certified the
4, and 6
favor.
This ruling
of the complaint,
counterclaims
unaffected.
judgment as
final under
The
leaving
court
Rule 54(b).1
reason
that
conclusion.
certificate
as
Using
the
a springboard,
district
the
court's
plaintiffs
Rule
54(b)
prosecuted this
appeal.
It is trite, but
invites
mischief.
Because
potential problems
we
the
have warned,
54(b)
should be
Corp.
_____
Spiegel v.
_______
1988);
practice
used sparingly.
time and
See, e.g.,
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poses
host
again, that
of
Rule
Consolidated Rail
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38, 43
Cir. 1986).
(1st Cir.
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1Ordinarily,
under
28 U.S.C.
claims of
merits
judgment is
1291)
one
judgment").
(and,
thus, appealable
the action.
U.S. 229,
generally is
final
only if it
all parties to
See generally
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the
Catlin v.
______
that a
final
litigation on
to do but
execute the
the
It
judgment as to
one or
than all of
the
that there
is no just reason for delay and upon an express direction for the
entry of [such a] judgment. . . ."
review
record.
(1st
Cir. 1991);
Spiegel,
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843 F.2d
at 43
&
n.4; Pahlavi
_______
v.
In
meaningful
should
this
explanation for
the district
its
court
determination
volunteered no
that a
judgment
untried,2 and
The
instance
claims adjudicated
on
certification is apparent.
summary judgment
and certified
for
in the district court, and the parties to both sets of claims are
precisely the
same.
"[i]t will be a
applied when
the contestants
contestants below."
that
prediction,
This
on appeal
can appropriately be
remain, simultaneously,
not within
the
the generality
long-odds
exception to
of
it.3
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2The district court did note in its certificate that all the
counts
on
which
it
granted
summary
judgment
foreclosure.
The
court
also
noted
reason to suspect
involved
the
very little as
desirability
of
but
urgency attended
this discharge.
fully briefed,
the
counterclaims.
thereafter
it
Cadle prevailed
moved to
dismiss the
estoppel.
Immediately
appeal
on grounds
of res
We do not
reach the
issues
Finally,
the
record
reflects
no
special
circumstances
or
in favor of permitting an
We
need
go
no
further.
Since
the
Rule
54(b)
certificate
in
this case
appellate jurisdiction.
was
improvidently
granted, we
lack
appellate jurisdiction.
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raised
Serbonian
relaxed
bog into
which
application of the
appellate courts
can
be plunged
by
ought to be