United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE
August 13, 2018, Plaintiffs filed a Notice of Lodging
Proposed Form of Rule 54(b) Judgment. (Doc. 161). Because the
request for judgment was improperly filed as a notice rather
than a motion, see Fed.R.Civ.P. 7(b)(1), the Court
sent an email to the parties, asking the Government to
respond (Doc. 163) and affording Plaintiffs time to reply
(Doc. 164). Plaintiff's Notice claims that the analysis
from Indian Towing v. United States, 350 U.S. 61
(1955), applies to the claims that the Court summarily
dismissed in its July 10, 2018 Order. Therefore, Plaintiffs
believe there is an appealable issue that warrants issuing
final judgment on the claims of negligence, gross negligence,
false imprisonment, and assault. For the first time in their
reply, Plaintiffs argue that the actions of agents were
“follow the manual” ministerial decisions, and
not discretionary. (Doc. 164 at 8). However, Plaintiffs did
not brief this argument in either their Response to
Defendant's Motion for Summary Judgment (Doc. 139) or
Response to Defendant's Objections to the Report and
Recommendation (Doc. 153). Therefore, they have waived the
issue. See Ramirez v. Galaza, 334 F.3d 850, 859 n.6
(9th Cir. 2003) (“[A] party may not raise new issues of
fact on appeal after declining to present those facts before
the trial court.”). In addition, as explained in the
Court's Order, Indian Towing and its progeny do
not apply in this instance. (See Doc. 156 at 6-7).
In this instance, the Court determines that partial judgment
under Rule 54(b) is inappropriate.
general, the federal court of appeals may only review a
district court's final decision under 28 U.S.C. §
1291, but an order must dispose of all claims and parties to
be considered final. See Nuwintore v. United States,
No. CV-13-0967-AWI-JLT, 2014 WL 7335215, at *1 (E.D. Cal.
Dec. 19, 2014). However, Federal Rule of Civil Procedure
54(b) provides an avenue for appeal prior to final
determination on all claims in certain instances. It states:
When an action presents more than one claim for relief . . .
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 determines that
there is no just reason for delay. Otherwise 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.
Fed.R.Civ.P. 54(b). The Court has discretion to determine
when a Rule 54(b) judgment is appropriate and when it is more
appropriate to deny a Rule 54(b) motion to “preserve
the historic federal policy against piecemeal appeals.”
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
8 (1980). “‘A similarity of legal or factual
issues will weigh heavily against entry of judgment under the
rule, and in such cases a Rule 54(b) order will be proper
only where necessary to avoid a harsh and unjust
result[.]'” Frank Briscoe Co. v.
Morrison-Knudsen Co., 776 F.2d 1414, 1416 (9th Cir.
Plaintiffs' claims of negligence, gross negligence, false
imprisonment, assault, and intentional infliction of
emotional distress are all against one party: the United
States. Furthermore, Plaintiffs' claims arise from a
single occurrence: a border patrol stop, search, and arrest.
In addition, Defendant raised a singular defense against all
of Plaintiffs' claims, arguing they are precluded under
the discretionary function exception to the Federal Tort
Claims Act. Therefore, the claims are “closely related,
factually and legally[, ]” and do not support a final
decision on some but not all of part of the claims. See
Jewel v. Natl. Sec. Agency, 810 F.3d 622, 629 (9th Cir.
in the interest of judicial economy, a judgment on fewer than
all of the claims is inappropriate. Plaintiffs' argument
that the issue has a possibility of successful on appeal is
not persuasive. Prior to any appellate decision, an appeal
has the possibility of success. This case is not unusual. In
addition, the intentional infliction of emotional distress
claim is not complicated, and the Court does not expect a
trial to be lengthy. To expedite matters the Court will set a
Status Conference to determine trial dates. Plaintiffs'
claims may be reviewed by the appellate court immediately
thereafter. See Blair v. Shanahan, 38 F.3d 1514,
1522 (9th Cir. 1994) (holding no abuse of discretion when
District Court denied Rule 54(b) motion because it involved
short bench trial and could thereafter be appealed). No.
unjust result will occur in proceeding without partial
the Notice of Lodging Proposed Form of Rule 54(b) Judgment.
(Doc. 161) is DENIED.
Status Conference is set for Tuesday, September 18 at 10:00
a.m. before the Hon. Cindy K. Jorgenson, Courtroom 5C of the
Evo A. DeConcini United States ...