Wednesday, August 18, 2010

Rule 54(b) Certification & Opposition (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended for use with motions requesting Rule 54(b) certification that a judgment is final for purposes of interlocutory appeal, as well as opposition to such motions.  Updated 8/18/10.
C.R.C.P. 54(b) permits courts to direct the entry of a final judgment “as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” It is identical to the federal rule, and federal case law on this point is considered persuasive in Colorado. State ex rel. Salazar v. Gen. Steel Domestic Sales, LLC, 129 P.3d 1047, 1049 (Colo. App. 2005).
-Three step process in Colorado (see Harding Glass Co. v. Jones, 640 P.2d 1123, 1125 (Colo. 1982)):
-- Is ruling to be certified a ruling upon an entire ‘claim for relief’?
-- Is decision a final disposition of an individual claim?
-- Is there any “just reason for delay?” This issue is within sound discretion of trial court. Tans Cent. Airlines v. McBreen & Assocs., 497 P.2d 1033, 1034 (Colo. App. 1972).
- Are there other actual or potential justiciability concerns if interlocutory appeal proceeds?
Best Practices
- Purpose of rule is to preserve judicial resources, Harding, 640 P.2d at 1125, and to discourage piecemeal review of a case, Hamm v. Twin Lakes Reservoir & Canal Co., 373 P.2d 525, 526 (Colo. 1962). Ensure any motion or opposition frames the issue in these contexts.
- Always consider whether remaining claims could in any way create justiciability or res judicata issues. “Certification generally is inappropriate when further proceedings might moot the issues involved.” Fox v. Baltimore City Police Dept., 201 F.3d 526, 531 (4th Cir. 2000).
- Consider whether opposition is suitable for recycling as a motion to the Court of Appeals to stay the appeal pending resolution of the remaining claims.
- If opposing a Rule 54(b) motion, consider using the opportunity to request, in the event certification is granted, a supersedeas bond for potential award of attorneys' fees on appeal. C.R.S. Section 13-17-201, for example, provides for mandatory award of attorneys' fees where dismissal under C.R.C.P. 12(b) is affirmed on appeal. Ferrel v. Colo. Dept. of Corr., 179 P.3d 178, 189 (Colo. App. 2007).
Sample Motion:
- Sample Motion Opposing Rule 54(b) Certification
Jeff Vail is a business litigation attorney in Denver, Colorado.  Visit for more information.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.

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