Updated August 11, 2020.
Certification under Mass. R. Civ. P. 54(b) is an exception to the general rule that only final judgments, which dispose of all claims as to all parties, are appealable. Generally, a judgment as to fewer than all parties to an action, or fewer than all claims, is interlocutory and, therefore, not subject to immediate appeal. However, Rule 54(b) provides that,
When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may 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. In the absence of such determination and direction, any order or other form of decision however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
Due to the policy disfavoring piecemeal appeals, the exception offered by Rule 54(b) is quite narrow. For reasons of public policy and judicial administration, Rule 54(b) certification is granted only in extraordinary cases.
When applying rule 54(b), both the trial court in the first instance and an appellate court on review must ever bear in mind the rule’s underlying purpose of balancing the need for immediate review, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case, against the appellate courts’ “traditional abhorrence of piecemeal appellate review….
Because of the bedrock policy against premature and piecemeal appeals, the Supreme Judicial Court has declared that “[w]e do expect strict compliance” in dealing with the narrow exception to that policy created by rule 54(b)…. Consequently, certifications under rule 54(b) “should not be granted routinely or as a courtesy or accommodation to counsel.”… “[O]verly generous use of [rule] 54(b) … can create a minefield for litigants and appellate courts alike,” … and does not further “the interests of sound judicial administration.” …. Therefore, the court’s rule 54(b) discretion should be “exercised sparingly,” … and, when the dismissed and the surviving claims are factually and legally overlapping or closely related, such a fragmentation of the case is to be avoided except in “unusual and compelling circumstances.”….
In short, rule 54(b) certification is a “special dispensation,” … which “should be used only ‘in the infrequent harsh case.’”… “Rule 54(b) was not meant to animate essentially fragmentary proceedings or to be employed in the absence of sufficiently compelling circumstances.”
Long v. Wickett, 50 Mass. App. Ct. 380, 387-89 (2000) (internal citations omitted). See also Morrissey v. New England Deaconess Association-Abundant Life Communities, Inc., 458 Mass. 580, 594-95 (2010) (“Rule 54(b) is directed toward efficient use of judicial resources, balancing the need for immediate review, based on the likelihood of injustice or hardship to the parties of a delay in entering a final judgment as to part of the case, against the appellate courts’ traditional abhorrence of piecemeal appellate review, … as a matter of sound judicial administration…. [T]he narrow exception to this policy created by rule 54(b) is exercised sparingly” (internal quotation marks omitted)); Yanis v. Paquin, 96 Mass. App. Ct. 134, 137-38 (2019) (“Rule 54(b) is designed “to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all the parties until the final adjudication of the entire case by making an immediate appeal available. The rule tries to balance the long-standing bedrock policy in Massachusetts against premature and piecemeal appeals with the need for prompt appellate review to avoid delay and any resulting injustice or hardship. (Citations and internal quotation marks omitted)).
A court should not grant a Rule 54(b) certification unless all four of the following factors are present:
(1) the action must involve multiple claims or multiple parties; (2) there must be a final adjudication as to at least one, but fewer than all, of the claims or parties; (3) there must be an express finding that there is no just reason for delaying the appeal until the remainder of the case is resolved; and (4) there must be an express direction of the entry of judgment.
Long, 50 Mass. App. Ct. at 385-86 (footnote references omitted). See also Yanis, 96 Mass. App. Ct. at 137; O. Ahlborg & Sons, Inc. v. Massachusetts Heavy Industries, Inc., 65 Mass. App. Ct. 385, 392 (2006).
Whether there are multiple claims in an action, as required for certification, is a question of law, while “the determination of the presence or absence of a just reason for delay … is left to the sound discretion of the … judge ….” Yanis, 96 Mass. App. Ct. at 138. Such discretion must be exercised “sparingly.” Id.
Because Rule 54(b) certification is allowed only when there are “multiple claims or multiple parties,” a trial court must determine “whether … several separately stated counts are genuinely separate claims, as opposed to merely a portion of a single [litigation] unit.” Id. In doing so, the court should keep in mind the,
determinative, indeed critical, distinction … between separate claim[s] for relief within the meaning of the rule … [and] different theories of recovery arising out of the same cause of action. A [party] presents multiple claims for relief … when the possible recoveries are more than one in number and not mutually exclusive or, stated another way, when the facts give rise to more than one legal right or cause of action. Conversely, when a party asserts only one legal right, even if seeking multiple remedies, there is only a single claim for relief for rule 54(b) purposes. Similarly, [a]lternative [legal] theories of recovery based on the same factual situation are but a single claim, not multiple ones, under rule 54(b). Finally, there is only a single claim for relief, making a separate appeal under rule 54(b) inappropriate, in a case where the facts underlying the adjudicated portion of the case are largely the same as or substantially overlap those forming the basis for the unadjudicated issues.
Yanis, 96 Mass. App. Ct. at 138–39. (Citations and internal quotation marks omitted).
In determining whether there is or is not “just reason for delay,”
the facts of each case [must] be closely examined to ensure that allowing an appeal will not wrongly fragment the case…. A court should also examine whether [certification] will advance the interests of judicial administration and public policy.
Long, 50 Mass. App. Ct. at 395 (internal quotation marks omitted). The factors to be considered when ruling on a motion for entry of separate final judgment under Rule 54(b) include:
whether “any hardship or injustice will result if the plaintiff is required to try its case … before securing appellate review,” whether intermediate review of the judgment certified will or “will not simplify, shorten or expedite the trial of any of the other claims still pending in the [trial] [c]ourt,” and whether the questions sought to be raised by the appeal might “become moot if the [trier of fact ultimately found] … for the [appellee].”
Id. at 396 n.12, quoting J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass. App. Ct. 250, 252-53 (1980). See also Signature Financial Group, Inc. v. Coolidge, 2003 WL 21246174, *2 (Mass. Super. 4/14/03).
Where Rule 54(b) certification has been granted improperly, the Appeals Court can dismiss the appeal and restore the order appealed to its interlocutory status. Long, 50 Mass. App. Ct. at 404.
Read more about appeals here.
Learn about my appellate brief drafting services here.
Photo Credit: ImageCreator – http://www.imagecreator.co.uk/