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Allen Dickerson (pro hac vice)

Tyler Martinez (pro hac vice)

Owen Yeates (Utah Bar No. 13901)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

tmartinez@ifs.org

oyeates@ifs.org

Scott C. Williams (Utah Bar. No. 6687)

SCOTT C. WILLIAMS, LLC

43 East 400 South

Salt Lake City, Utah 84111

Telephone: 801.220.0700

Facsimile: 801.364.3232

scwlegal@gmail.com

Scott E. Thomas (pro hac vice)

BLANK ROME, LLP

1825 Eye Street N.W.

Washington, D.C. 20006

Telephone: 202.420.2601

Facsimile: 202.420.2201

sthomas@blankrome.com

Counsel for Defendant John Swallow

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

FEDERAL ELECTION COMMISSION,

Plaintiff,

v.

JEREMY JOHNSON and 

JOHN SWALLOW,

Defendants.

Case No. 2:15-cv-00439-DB

DEFENDANT JOHN SWALLOW’S 

MOTION FOR PARTIAL FINAL 

JUDGMENT

District Judge Dee Benson

Defendant John Swallow, by and through undersigned counsel, respectfully requests an 

entry of partial final judgment pursuant to Federal Rule of Civil Procedure 54(b).

1 That rule

 

1 Counsel for Mr. Swallow corresponded with counsel for the Commission regarding partial final 

judgment for Mr. Swallow, and the FEC intends to oppose the motion. 

Case 2:15-cv-00439-DB Document 124 Filed 07/26/18 Page 1 of 7
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provides that “the court may direct entry of a final judgment as to one or more, but fewer than all, 

claims or parties.” Id. In order to grant partial final judgment, the Court must determine two distinct 

issues: (I) that the claims and parties subject to the partial final judgment are both separable from 

the rest of the ligation and (II) that “there is no just reason for delay” in granting partial final 

judgment. N.M. ex rel. State Eng’r v. Trujillo, 813 F.3d 1308, 1316 (10th Cir. 2016).

I. The claims against Mr. Swallow are separable from the rest of the ligation.

In determining whether partial final judgment is appropriate, the district court is to “act as 

a ‘dispatcher’ -- weighing the historic federal policy disfavoring piecemeal appeals against the 

inequities that may result if a litigant is required to await resolution of the entire case before 

appealing.” Gross v. Pirtle, 116 F. App’x 189, 193-94 (10th Cir. 2004) (quoting and applying 

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980)). Factors to consider are whether “the 

claims under review [are] separable from the others remaining to be adjudicated and whether the 

nature of the claims already determined [are] such that no appellate court would have to decide the 

same issues more than once even if there were subsequent appeals.” Curtiss-Wright, 446 U.S. at 8.

Both factors are satisfied in this instance, and therefore partial final judgment for Mr. Swallow is 

appropriate.

a. Granting partial final judgment will be based on separable facts and claims.

First, “Rule 54(b)’s finality requirement is only satisfied if the claims resolved are distinct 

and separable from the claims left unresolved.” Old Republic Ins. Co. v. Durango Air Serv., 283 

F.3d 1222, 1225 (10th Cir. 2002) (citing Okla. Tpk. Auth. v. Bruner, 259 F.3d 1236, 1241 (10th 

Cir. 2001) and McKibben v. Chubb, 840 F.2d 1525, 1528-29 (10th Cir. 1988)) (internal quotation 

marks omitted). To determine separability, courts “concentrate[] on two factors: (1) the factual 

Case 2:15-cv-00439-DB Document 124 Filed 07/26/18 Page 2 of 7
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overlap (or lack thereof) between the claims disposed of and the remaining claims, and (2) whether 

the claims disposed of and the remaining claims seek separate relief.” Okla. Tpk. Auth., 259 F.3d 

at 1242 (quoting Moore’s Federal Practice 3d § 202.06[2]). 

The claims against each defendant in this case are based on different facts2and legal 

theories. The FEC’s claims against Mr. Swallow were that he “caused, helped, and assisted” 

Mr. Johnson. Amend. Compl. at 17 ¶ 77 (third cause of action, the only one against Mr. Swallow).3

This Court has already resolved the Commission’s legal claim against Mr. Swallow by dismissing 

it and vacating the underlying administrative rule. Mem. Decision and Order at 10 (April 6, 2018), 

ECF No. 120. As the District Court for the District of Columbia has held, “[a]n order is ‘final’

within the meaning of Rule 54(b) if it is the ‘ultimate disposition of an individual claim entered in 

the course of a multiple claims action.’” Jewler v. Dist. of Col., 198 F. Supp. 3d 1, 3 (D.D.C. 2016) 

(quoting Curtiss-Wright, 446 U.S. at 7). Because this Court has resolved the only claim against 

Mr. Swallow and the remaining facts and claims are distinct, the parties are consequently 

 

2 The factual claims against Mr. Swallow are separable from those against Mr. Johnson. The 

Commission’s claims were based on alleged political speech from Mr. Swallow. According to the 

FEC, Mr. Swallow said that Senator Lee would be “choosing the next U.S. Attorney,” and that 

“hav[ing both the Senator and the U.S. Attorney] in [Mr. Johnson’s] corner” would be helpful “if 

the federal government comes after [the online] poker” industry, whose transactions were 

processed by Mr. Johnson’s companies. Amend. Compl. at 4 ¶ 11, 9 ¶ 30 (Feb. 24, 2016), ECF 

No. 36. In contrast, the FEC’s claims against Mr. Johnson are based are based on allegations of 

direct financial transactions between Mr. Johnson and other persons acting as conduits. Id. at 7 

¶ 23 (“Johnson entered into arrangements or understandings with his straw donors that they would 

contribute funds to Shurtleff’s campaign and that Johnson would supply them with the funds for 

those contributions.”); cf. id. at 9 ¶32 (“Johnson’s straw donors transmitted funds to Lee’s 

campaign. . . . Johnson supplied his straw donors with those funds . . .”).

3 Such secondary liability is independent of any principal liability alleged against Mr. Johnson. 

Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 176 (1994)

(“[A]iding and abetting liability reaches persons who do not engage in the proscribed activities at 

all . . .”). The Amended Complaint did not allege any conspiracy cause of action. 

Case 2:15-cv-00439-DB Document 124 Filed 07/26/18 Page 3 of 7
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severable. See, e.g., McHenry v. City of Ottawa, No. 16-2736-DDC-JPO, 2017 U.S. Dist. LEXIS 

206445, at *8 (D. Kan. Dec. 15, 2017) (unpublished) (granting a Rule 54(b) motion where a 

“plaintiff pursue[d] a different legal theory against the non-shooting officers compared to the other 

defendants”).

b. Granting partial final judgment will create no appellate redundancy.

Second, for this case, “no appellate court would have to decide the same issues more than 

once even if there were subsequent appeals.” Curtiss-Wright, 446 U.S. at 8; cf. Gross, 116 

F. App’x at 193-94. This Court granted Mr. Swallow’s Motion to Dismiss because the regulation 

upon which the FEC relied is invalid. That regulation is the only basis of the claims against 

Mr. Swallow, and is not the basis of the claims against Mr. Johnson. Compare Amend. Compl. 17 

¶¶ 73 and 75 with ¶ 77.

FEC’s claims against Mr. Swallow were based on a theory of secondary liability, relying 

entirely upon 11 C.F.R. § 110.4(b)(1)(iii), a rule of the Commission’s own making. Mem. Decision 

and Order at 2 (“The Commission admits that its case against Mr. Swallow is based on the CFR, 

which was adopted in 1989.”). This Court has already rejected the Commission’s theory and 

vacated 11 C.F.R. § 110.4(b)(1)(iii). Id. at 10. In contrast, the FEC’s claims against Mr. Johnson

are based in statute and different theories of liability. Amend. Compl. 17 ¶ 73 (first cause of action 

against Mr. Johnson under 52 U.S.C. § 30116(a)(1)(A)); id. ¶ 75 (second cause of action against 

Mr. Johnson under 52 U.S.C. § 30122)).

Any further appellate review of the FEC’s claims against Mr. Swallow would be based on 

the sufficiency of 11 C.F.R. § 110.4(b)(1)(iii) on administrative law grounds applying Chevron 

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and Central Bank 

Case 2:15-cv-00439-DB Document 124 Filed 07/26/18 Page 4 of 7
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of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164 (1994). By contrast, any

appellate review of the FEC’s claims against Mr. Johnson would be based on its application of the 

Federal Election Campaign Act. These are entirely separate legal claims.

II. There is no just reason for delay in granting judgment for Mr. Swallow.

Under Federal Rule of Civil Procedure 54(b), for this Court to grant partial final judgment, 

it must “determine[] that there is no just reason for delay.” The appellate courts instruct that this

must be a separate determination. Stockman’s Water Co., Ltd. Liab. Co. v. Vaca Partners, Ltd. 

P’ship, 425 F.3d 1263, 1265 (10th Cir. 2005) (citing Curtiss-Wright, 446 U.S. at 8); Okla. Tpk. 

Auth., 259 F.3d at 1242.

4 Because Mr. Swallow has successfully defeated the FEC’s claims, he 

sees no reason to delay the finality of this Court’s judgment as to himself. 

The case against Mr. Swallow has gone on quite long enough. And the other parties agree

that the FEC’s claims against Mr. Swallow are resolved. The FEC, along with counsel for Mr. 

Johnson, filed a Joint Stipulation and [Proposed Order] to Extend or Clarify Stay at 3-4 (June 4, 

2018), ECF No. 122 (counsel for both the FEC and Mr. Johnson, signing).

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In that Joint Stipulation, 

the FEC notes that this Court’s original “Stay Order created a limited exception for certain crossmotions related to defendant John Swallow on legal grounds, which have now been resolved.” Id. 

at 1 n.1 (emphasis added). It is telling that the FEC captions its filing as only between it and Mr. 

Johnson. Id. at 1. And the Commission did not contact counsel for Mr. Swallow before submitting

 

4 The Tenth Circuit applies “[a] two-tiered standard of review” where this Court’s “determination 

of the certified order’s finality is subject to de novo review because it is a question of law,” but the 

“determination that there is no just reason for delay is reviewed only for abuse of discretion.” Okla. 

Tpk. Auth., 259 F.3d at 1242 (internal citations omitted).

5 The Court has granted that extended stay without substantive modification of the Commission’s 

filing. See Joint Stipulation and Order to Extend or Clarify Stay (June 13, 2018), ECF No. 123.

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a Joint Stipulation, which is further evidence that the Commission acts as though the case against 

Mr. Swallow is complete.

There is no reason why Mr. Swallow should continue to wait on the final resolution of the 

FEC’s suit against Mr. Johnson, which continues to be delayed by sentencing complexities 

occasioned by Mr. Johnson’s unrelated criminal conviction and may not be resolved for some time. 

This Court has ruled decisively as regards Mr. Swallow. If the FEC wishes to appeal that ruling, it 

should do so separately. Otherwise, Mr. Swallow should be released from further proceedings.

Therefore, because there remains no lawful claim against Mr. Swallow, and because there 

is no just reason to delay resolution of the claims against him—especially as there is likely to be a 

substantial wait while this Court resolves the legally distinct claims against Mr. Johnson—Mr. 

Swallow respectfully seeks certification of partial final judgment under Federal Rule of Civil 

Procedure 54(b). 

Pursuant to DUCivR 54-1(b), a [Proposed] Partial Final Judgment is filed concurrently 

with this document. 

Scott C. Williams (Utah Bar. No. 6687)

SCOTT C. WILLIAMS, LLC

43 East 400 South

Salt Lake City, Utah 84111

Telephone: 801.220.0700

Facsimile: 801.364.3232

scwlegal@gmail.com 

Scott E. Thomas (pro hac vice)

BLANK ROME, LLP

1825 Eye Street N.W.

Washington, D.C. 20006

Telephone: 202.420.2601

Respectfully submitted,

/s/ Allen Dickerson

Allen Dickerson (pro hac vice)

Tyler Martinez (pro hac vice)

Owen Yeates (Utah Bar No. 13901)

INSTITUTE FOR FREE SPEECH

124 S. West Street, Suite 201

Alexandria, Virginia 22314

Telephone: 703.894.6800

Facsimile: 703.894.6811

adickerson@ifs.org

tmartinez@ifs.org

oyeates@ifs.org

Case 2:15-cv-00439-DB Document 124 Filed 07/26/18 Page 6 of 7
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Facsimile: 202.420.2201

sthomas@blankrome.com 

Counsel for Defendant John Swallow

Dated: July 26, 2018

Case 2:15-cv-00439-DB Document 124 Filed 07/26/18 Page 7 of 7