FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

APRIL 4, 2007

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

____________

No. 04-16534

_____________

D.C. Docket No. 01-00437-CV-BE-S

2:01-cv-437-KOB

LLOYD NOLAND FOUNDATION, INC., THE,

an Alabama nonprofit corporation,

Plaintiff, 

versus

TENET HEALTH CARE CORPORATION,

a corporation,

DefendantThird Party-PlaintiffCounter-DefendantAppellant, 

FAIRFIELD HEALTHCARE AUTHORITY, CITY OF,

Third Party-DefendantCounter-ClaimantAppellees, 

HEALTHSOUTH CORPORATION,

Third Party-DefendantAppellee. 
 Honorable Lloyd D. George, United States District Judge for the District of Nevada,

*

sitting by designation.

2

_____________

2:01-cv-1904-KOB

TENET HEALTHSYSTEM MEDICAL, INC.,

a corporation,

Plaintiff- 

 Counter-DefendantThird Party-PlaintiffAppellant, 

versus

LLOYD NOLAND FOUNDATION, INC.,

an Alabama nonprofit corporation,

DefendantCounter-Claimant, 

FAIRFIELD HEALTHCARE AUTHORITY,

Third Party-DefendantCounter-ClaimantAppellee. 

______________

Appeal from the United States District Court

for the Northern District of Alabama

_____________

Before TJOFLAT and PRYOR, Circuit Judges, and GEORGE, District Judge. *
3

TJOFLAT, Circuit Judge:

This appeal asks us to interpret an indemnity provision under Alabama law. 

The district court granted summary judgment in favor of the third-party defendants

on a claim based on this indemnity provision, but left another count of the thirdparty complaint undecided. That count also sought indemnity but was premised

on Alabama common law rather than the indemnity provision itself. The district

court entered partial judgment on the contractual indemnity claim under Federal

Rule of Civil Procedure 54(b), and the third-party plaintiff appealed. Because we

find that entry of partial final judgment under Rule 54(b) was improper, we have

no jurisdiction and must dismiss this appeal.

I.

The larger case here involves numerous claims, counter-claims and thirdparty claims arising from a series of business transactions relating to the sale and

operation of a hospital in Fairfield, Alabama. Because we ultimately conclude that

we have no jurisdiction over this appeal, we eschew a detailed examination of the

somewhat convoluted facts in favor of a brief overview of those facts pertinent

here.

In 1996, the Lloyd Noland Foundation, Inc. (“LNF”) sold the hospital in
 Although the hospital-related transactions described herein involved various subsidiary 1

entities of Tenet in addition to the parent corporation, the parent corporation is the party in this

case and the appellant here. Because our jurisdictional holding does not depend on distinctions

among the Tenet entities, we refer to Tenet generally throughout this opinion.

4

question to a subsidiary of Tenet Healthcare Corporation (“Tenet”). As a 1

condition to closing the transaction, Tenet executed a Guaranty Agreement, in

which it guaranteed the performance of certain obligations to LNF assumed by

Tenet’s subsidiaries as part of the transaction. Generally, these obligations related

to an option for LNF to lease space in the hospital and repurchase beds from Tenet

for the operation of an acute care unit, and Tenet’s assumption of certain

responsibilities for an LNF retiree benefit program.

Three years later, the City of Fairfield Healthcare Authority (“FHA”)

purchased the hospital from Tenet, executing a six-month promissory note for the

purchase price and a security agreement. FHA assumed the obligations, as

described above, that were owed to LNF by Tenet’s subsidiaries and guaranteed

by Tenet (the “Assumed Obligations”). FHA’s partner in the transaction was

HealthSouth Corporation (“HealthSouth”), which executed with Tenet a separate

agreement guaranteeing FHA’s payment of the promissory note.

When the note came due six months later, FHA and HealthSouth were not

prepared to pay. Accordingly, Tenet, FHA and HealthSouth together executed the
 To what extent the Amendment was solely an amendment of the promissory note, or 2

whether some of its provisions went further and imposed obligations independent of the terms of

the note, is the heart of the dispute in this appeal. Because we hold that we have no jurisdiction,

we do not consider the merits. Accordingly, our use of the shorthand “Amendment” to refer to

this document is not meant to imply any opinion by this court about the proper interpretation of

the document.

5

“Agreement Regarding Amendment of Secured Promissory Note” (the

“Amendment”). Its title notwithstanding, the parties actually agree about 2

relatively little with regard to this document. One thing they do not dispute is that

the Amendment extended the term of the promissory note, giving FHA and

HealthSouth six additional months in which to pay Tenet. HealthSouth ultimately

paid the promissory note in full after the extension.

The parties do disagree, however, about the scope of an indemnity provision

contained in the Amendment. The provision made FHA and HealthSouth jointly

and severally liable to indemnify Tenet for any claim by LNF based on the

Assumed Obligations. By its terms, the indemnity provision specified its effective

date, but it contained no expiration date. In short, Tenet contends that, in the

absence of an expiration provision, the indemnity clause remained effective

indefinitely until expressly terminated by the parties. Fairfield and HealthSouth

argue that the entire Amendment was tied to the term of the promissory note, and

that all the provisions of the Amendment – including the indemnity clause –

expired when the note was paid in full.
6

In 2001, this lawsuit began. LNF sued Tenet in the Northern District of

Alabama for damages under the terms of Tenet’s Guaranty Agreement, alleging

that FHA had failed to carry out the Assumed Obligations. Tenet in turn filed an

answer and third-party complaint against both FHA and HealthSouth, initially

alleging only one count for indemnification under the terms of the Amendment. 

Later, Tenet amended its answer and third-party complaint to allege a second

count of “Common Law Indemnification” under Alabama law. The parties dispute

whether Tenet properly alleged this second count against both FHA and

HealthSouth; on its face, the count names only FHA.

On March 7, 2002, the district court filed a scheduling order setting

deadlines for discovery and motions “regarding liability” and staying all other

proceedings in the case “pending the resolution of the liability issues.” In

response to a request from counsel seeking clarification of the order, the district

court filed a letter to counsel on March 18, 2002, specifying that “‘liability’ [as

used in the March 7, 2002 scheduling order] means contractual liability under the

indemnification agreement.” Tenet, FHA and HealthSouth proceeded to file

competing motions for summary judgment on the contractual indemnification

count of Tenet’s amended third-party complaint, never addressing Tenet’s second

count for common-law indemnification.
 Rule 54(b) provides: 3

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 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.

Fed. R. Civ. P. 54(b).

7

By order on November 9, 2004, the district court granted FHA’s and

HealthSouth’s motions for summary judgment on the contractual indemnification

count and denied Tenet’s motion, holding in its accompanying Memorandum

Opinion that, under Alabama law, the indemnity provision of the Amendment

expired upon payment of the promissory note. The court further ordered that,

“[b]ecause no claims remain against [FHA and HealthSouth], the court dismisses

them with prejudice from the case.” The district court nowhere mentioned the

outstanding common-law indemnification count of Tenet’s amended third-party

complaint.

Desiring to appeal immediately to this court, Tenet moved the district court

under Federal Rule of Civil Procedure 54(b) for entry of a partial final judgment

on the November 9 summary judgment order. In Tenet’s estimation, as reflected 3
8

in its Rule 54(b) motion, the November 9 Order “dismiss[ed] with prejudice Count

[One]” of its amended third-party complaint. On December 7, 2004, the district

court granted Tenet’s motion with a two-sentence order. The order’s operative

sentence reads: “Finding no just reason for delay, the court GRANTS the motion

and directs the entry of final judgment in favor of Third Party Defendants City of

Fairfield Healthcare Authority and HealthSouth Corporation and DISMISSES the

third party complaint with prejudice.”

Thereafter, Tenet appealed, raising two issues. First, it argues that the

district court erred in its interpretation of the contractual indemnity provision in

the Amendment. Second, Tenet contends that the district court erred in “sua

sponte” granting summary judgment in favor of the third-party defendants on the

common-law indemnity claim in Count Two of Tenet’s amended third-party

complaint without giving Tenet an opportunity to present evidence on and brief

that issue.

II.

Although no party on appeal directly questions the propriety of the district

court’s entry of final judgment under Rule 54(b), we do so sua sponte “because
 Although not framed in terms of Rule 54(b), Tenet’s argument regarding the “sua 4

sponte” grant of summary judgment on Count Two of its amended third-party complaint

indirectly raises the issue.

9

such certifications implicate the scope of our appellate jurisdiction.” Ebrahimi v. 4

City of Huntsville Bd. of Educ., 114 F.3d 162, 165 (11th Cir. 1997) (per curiam). 

The parties suggest that this court has jurisdiction under 28 U.S.C. § 1291 because

this appeal is taken from a “final decision” of the district court. Ordinarily,

however, an order adjudicating fewer than all the claims in a suit, or adjudicating

the rights and liabilities of fewer than all the parties, is not a final judgment from

which an appeal may be taken. Lex Tex Ltd. v. Unifi, Inc. (In re Yarn Processing

Patent Validity Litig.), 680 F.2d 1338, 1339 (11th Cir. 1982) (per curiam). Under

such circumstances, appellate jurisdiction lies when the district court properly

certifies as “final,” under Rule 54(b), a judgment on fewer than all claims or

parties. Id. Here, the district court’s order on the third-party contractual

indemnification claim had no effect on the underlying claims between LNF and

Tenet that initiated this lawsuit, so Tenet could not have appealed without a Rule

54(b) certification. As such, we must consider whether the district court’s

determinations under Rule 54(b) “fit within the scope of the rule.” Brandt v.

Bassett (In re Se. Banking Corp.), 69 F.3d 1539, 1546 (11th Cir. 1995). If they do

not, this court lacks jurisdiction to consider the merits and must dismiss the
10

appeal.

A.

A district court must follow a two-step analysis in determining whether a

partial final judgment may properly be certified under Rule 54(b). First, the court

must determine that its final judgment is, in fact, both “final” and a “judgment.” 

Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7, 100 S. Ct. 1460, 1464, 64 L.

Ed. 2d 1 (1980). That is, the court’s decision must be “‘final’ in the sense that it is

‘an ultimate disposition of an individual claim entered in the course of a multiple

claims action,’” and a “‘judgment’ in the sense that it is a decision upon a

cognizable claim for relief.” Id. (citing Sears, Roebuck & Co. v. Mackey, 351

U.S. 427, 436, 76 S. Ct. 895, 900, 100 L. Ed. 1297 (1956)). Second, having found

that the decision was a final judgment, the district court must then determine that

there is no “just reason for delay” in certifying it as final and immediately

appealable. Id. at 8, 100 S. Ct. at 1465. This inquiry is required because “[n]ot all

final judgments on individual claims should be immediately appealable.” Id. The

district court must act as a “dispatcher” and exercise its discretion in certifying

partial judgments in consideration of “judicial administrative interests” – including

“‘the historic federal policy against piecemeal appeals’” – and “the equities

involved.” Id. (quoting Sears, Roebuck & Co., 351 U.S. at 438, 76 S. Ct. at 901).
11

As a threshold question, we consider whether the district court’s November

9, 2004 order granting summary judgment to FHA and HealthSouth was a “final

judgment” eligible for certification under Rule 54(b). If it was not, we need not

fret over whether the district court abused its discretion in determining there was

no “just reason for delay” in entering judgment. See In re Se. Banking Corp., 69

F.3d at 1546 (noting that “whether the district court completely disposed of one or

more claims . . . is a prerequisite for an appeal under the rule”); Ind. Harbor Belt

R.R. Co. v. Am. Cyanamid Co., 860 F.2d 1441, 1443–44 (7th Cir. 1988) (“If the

judgment was final, we then determine whether the district court abused its

discretion in finding there was ‘no just reason for delay.’” (emphasis added)

(quoting Curtiss-Wright, 446 U.S. at 8, 100 S. Ct. at 1465)). We review de novo

the district court’s determination that its partial adjudication amounted to a final

judgment. See Mathis v. Zant, 903 F.2d 1368, 1371 (11th Cir. 1990) (per curiam)

(describing the standard as “plenary review”); see also Gen. Acquisition, Inc. v.

GenCorp, Inc., 23 F.3d 1022, 1027 (6th Cir. 1994) (“de novo”); Ind. Harbor Belt

R.R. Co., 860 F.2d at 1444 (“de novo”); 10 James Wm. Moore et al., Moore’s

Federal Practice § 54.22[2][a] (3d ed. 2006); 10 Charles Alan Wright et al.,

Federal Practice and Procedure § 2655 (3d ed. 1998); cf. Sears, Roebuck & Co.,

351 U.S. at 437, 76 S. Ct. at 900 (“The District Court cannot, in the exercise of its
 We note that this court has previously formulated the applicable standard of review for 5

the first prong of the Rule 54(b) analysis as “approach[ing] de novo,” explaining that while “we

have a duty to ‘scrutinize’ the district court’s determination in order to ensure that limits on our

jurisdiction are observed[,] . . . there is some room for deference particularly where the district

court has made its reasoning clear.” In re Se. Banking Corp., 69 F.3d at 1546. This formulation

is somewhat curious, as the first prong of the Rule 54(b) analysis – whether the district court’s

decision was a “final judgment” – directly affects our appellate jurisdiction. Without a “final

judgment,” we simply have no jurisdiction under § 1291. See Sears, Roebuck & Co., 351 U.S. at

438, 76 S. Ct. at 901 (observing that Rule 54(b) does not alter the “statutory requirement of a

‘final decision’ under § 1291 as a basic requirement for an appeal to the Court of Appeals”).

We recognize, of course, the Supreme Court’s instruction that the second prong of the

analysis – whether there is “any just reason for delay” in certifying the partial judgment for

appeal – is within the district court’s discretion. Id. at 437, 76 S. Ct. at 900–01 (“[T]he District

Court may, by the exercise of its discretion in the interest of sound judicial administration,

release for appeal final decisions upon one or more, but less than all, claims in multiple claims

actions. The timing of such a release is, with good reason, vested by the rule primarily in the

discretion of the District Court . . . . With equally good reason, any abuse of that discretion

remains reviewable by the Court of Appeals.”); see Curtiss-Wright, 446 U.S. at 11, 100 S. Ct. at

1466 (observing that court of appeals must “scrutinize” the district court’s evaluation of certain

“juridical concerns,” but that those aspects of the trial court’s judgment that are “discretionary,”

such as its “assessment of the equities,” are to be are to be granted “substantial deference”). In

these discretionary matters, deference to the district court remains appropriate, but it would be

peculiar for this court to defer to a district court in policing the boundaries of our appellate

jurisdiction. See Sears, Roebuck & Co., 351 U.S. at 443–44, 76 S. Ct. at 904 (Frankfurter, J.,

concurring) (“Of course, as the Court’s opinion appears to recognize, . . . [i]t is one thing for a

district court to determine whether it is or is not through with a portion of a litigation. It is quite

another thing for it to determine whether the requirements of § 1291 are satisfied so as to give

jurisdiction to the court of appeals. . . . In a particular litigation the opinion of the district judge

may properly be deemed a valuable guide. But flexibility would be a strange name for authority

in the district court to command the court of appeals to exercise jurisdiction.”).

In any event, this court in In re Southeast Banking Corp. ultimately applied a pure de

novo standard in reviewing the first prong of the Rule 54(b) analysis, noting that “[i]f the district

court does not explain itself, as is the case here, we do not get the benefit of its experience and its

reasoning. In such a case, . . . any deference we might otherwise accord such a ruling will be

nullified . . . .” 69 F.3d at 1546. As such, our decision in In re Southeast Banking Corp. does not

conflict with our prior precedent in Mathis, 903 F.2d at 1371.

12

discretion, treat as ‘final’ that which is not ‘final’ within the meaning of §

1291.”).5

B.
13

By definition, entry of partial judgment under Rule 54(b) results in some

claims in a case being immediately appealable while other claims remain pending

in the district court. In order to review the propriety of the district court’s Rule

54(b) certification, we must first determine what exactly the court did and did not

accomplish by that certification. In this case, that job is not made any easier by the

record on appeal. When the district court granted summary judgment to FHA and

HealthSouth and denied summary judgment to Tenet by its order of November 9,

2004, the court resolved the issue of liability under the indemnity provision of the

Amendment. That order determined that FHA and HealthSouth were not obliged

to indemnify Tenet under Tenet’s contractual indemnity theory alleged in Count

One of the amended third-party complaint.

The November 9 order did not, however, resolve Tenet’s claim for

indemnification under Alabama common law, alleged as Count Two in Tenet’s

amended third-party complaint. In response to the parties’ request for

clarification, the district court explicitly limited the scope of briefing on summary

judgment to the issue of contractual indemnification under the Amendment. 

Accordingly, the competing motions for summary judgment exclusively addressed

the Amendment’s indemnification clause. Notwithstanding the limited scope of

the summary judgment inquiry, the district court, by its order of December 7,
14

2004, granted entry of partial judgment under Rule 54(b) as to FHA and

HealthSouth and dismissed “the third party complaint” with prejudice. Thus, we

are presented a purported entry of partial judgment on all third-party claims

against FHA and HealthSouth, yet the second count of Tenet’s amended thirdparty complaint – seeking common-law indemnification – remained unresolved. 

Under these circumstances, the Rule 54(b) certification was improper.

We have interpreted the first prong of Rule 54(b) to require that a judgment

“disposes entirely of a separable claim or dismisses a party entirely” in order to be

considered “final.” In re Se. Banking Corp., 69 F.3d at 1547. The district court’s

order disposing of the contractual indemnification claim alone did neither of the

above. The inquiry turns on the interpretation of “claim for relief” under Rule

54(b). Ind. Harbor Belt R.R. Co., 860 F.2d at 1444. The text of the rule

establishes that a third-party claim can be a “claim for relief” as to which a district

court may direct the entry of partial judgment. Fed. R. Civ. P. 54(b); see also In re

Yarn Processing Patent Validity Litig., 680 F.2d at 1340 (noting that the district

court entered partial final judgment on dismissal of third-party complaints); Ind.

Harbor Belt R.R. Co., 860 F.2d at 1444. But the error here does not relate to the

third-party nature of the contractual indemnification count on which the court

granted summary judgment. Instead, the error lies in the failure of the court, by
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court

6

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

15

resolving that count alone, to adjudicate the entire substantive “claim for relief” to

which the count was addressed.

Although this court has noted that “the line between deciding one of several

claims and deciding only part of a single claim is very obscure,” we have held that

“when the plaintiff presents more than one legal theory, but will be permitted to

recover on only one of them[,] . . . there is only a single inseparable claim for

relief.” In re Se. Banking Corp., 69 F.3d at 1547; see also Schexnaydre v.

Travelers Ins. Co., 527 F.2d 855, 856 (5th Cir. 1976). Thus, the touchstone for 6

determining whether an entire “claim” has been adjudicated for the purposes of

Rule 54(b) is whether that claim is “separately enforceable” without “mutually

exclu[ding]” or “substantially overlap[ping]” with remedies being sought by the

remaining claims pending in the district court. In re Se. Banking Corp., 69 F.3d at

1547.

It follows, therefore, that a partially adjudicated “claim” cannot serve as the

basis for a Rule 54(b) certification; even if a district court has adjudicated one

count of a complaint, but another count seeks substantially similar relief, the

adjudication of the first count does not represent a “final judgment” because both
 This rule applies equally whether the only pending counts are those forming part of the 7

same “claim” under Rule 54(b) as the count upon which the court entered partial final judgment,

or whether there are also entirely separate “claims” pending in the district court. Ind. Harbor Belt

R.R. Co., 860 F.2d at 1444.

16

counts are functionally part of the same claim under Rule 54(b). See Pitney

Bowes, Inc. v. Mestre, 701 F.2d 1365, 1369 (11th Cir. 1983) (“[A] certification of

final judgment cannot for purposes of appeal render final a judgment which is

interlocutory. The requirement of finality still applies, . . . turning on whether the

entry of judgment completely disposes of one of the claims.”); see also Ind.

Harbor Belt R.R. Co., 860 F.2d at 1444 (“[I]f two counts constitute one claim for

relief . . . the district court must resolve both counts in order for the rule to

apply.”); Tolson v. United States, 732 F.2d 998, 999 (D.C. Cir. 1984) (Ginsburg,

J.) (holding that the district court improperly invoked Rule 54(b) where it had “not

yet finally adjudicated any claim,” but instead had “ruled on part of a single

claim”).7

For example, in Schexnaydre, 527 F.2d at 856, the plaintiff pled two

alternate tort theories in a one-count complaint. The district court dismissed only

one of the two theories of liability, leaving the other theory undecided. Id. The

court then entered partial judgment on the dismissed tort theory under Rule 54(b)

and the plaintiff appealed. Id. The former Fifth Circuit dismissed the appeal for
17

want of jurisdiction, holding that the Rule 54(b) certification was improper

because the two bases for liability were merely “alternative theories, drawn from

the law of the same sovereign, by which the same set of facts might give rise to a

single liability.” Id.; see also Ind. Harbor Belt R.R. Co., 860 F.2d at 1445

(dismissing appeal from entry of partial final judgment on a strict liability count of

the complaint when a pending negligence count was an alternative theory for

identical relief). Resolution of one theory did not constitute a “final judgment”

conferring appellate jurisdiction while the alternate theory for the same relief

remained outstanding. Schexnaydre, 527 F.2d at 856.

In light of the foregoing, our resolution of the instant case is

straightforward. The district court’s grant of summary judgment to the defendants

on the issue of contractual indemnification did not “dispose[] entirely of a

separable claim.” See In re Se. Banking Corp., 69 F.3d at 1547. The second count

of the amended third-party complaint, seeking common-law indemnification,

represented merely an alternate legal theory for a recovery identical to that sought

by Count One. Though it pled two counts in its complaint, Tenet would be

entitled to recover its losses through indemnification only once, at most. See In re

Se. Banking Corp., 69 F.3d at 1547; Schexnaydre, 527 F.2d at 856. The second

count remains unadjudicated because the district court, in its March 18, 2002
 On its face, Count Two of the amended third-party complaint names only FHA, whereas 8

Count One names both FHA and HealthSouth. HealthSouth disputes whether Count Two is

properly alleged against it. If Count Two is not properly pled against HealthSouth, then

HealthSouth would only be subject to Tenet’s claim for contractual indemnification under Count

One, as to which the district court granted summary judgment in HealthSouth’s favor. Thus,

arguably, the district court’s entry of partial judgment could have been proper as to HealthSouth,

which would allow us to review Tenet’s appeal on the merits as against HealthSouth.

On the district court’s unclear record, however, we would have to make certain

assumptions in order to reach that result. In the above scenario, the analyses for the district

court’s entry of partial judgment would be quite different as between FHA and HealthSouth. The

district court’s order entering partial judgment, however, gives no explanation of its reasoning. It

does not even acknowledge the existence of the common-law indemnification count, let alone

discuss how that count does or does not apply to the case against each third-party defendant. The

18

clarification order, explicitly limited the inquiry on summary judgment to

“contractual liability under the indemnification agreement.” Although the district

court’s Rule 54(b) order purports to dismiss the amended third-party complaint in

its entirety, the court never addressed the common-law indemnity count of that

complaint, and Rule 54(b) “does not contemplate ‘implicit adjudication’ of

claims.” See Lamp v. Andrus, 657 F.2d 1167, 1169 (10th Cir. 1981) (per curiam),

overruled on other grounds by Lewis v. B.F. Goodrich Co., 850 F.2d 641, 645

(10th Cir. 1988) (en banc). So long as that count remains unresolved, the first

requirement for entry of partial judgment under Rule 54(b) is unsatisfied because

there is no “final judgment” on any one “claim for relief.” For the same reason,

the district court’s order failed to dismiss any party entirely, because a Rule 54(b)

certification cannot make appealable a partial judgment as to a single party if that

judgment does not finally determine all the claims against that party. See Lockett 8
district court never resolved the underlying question of whether Count Two of the amended

third-party complaint was properly alleged against HealthSouth in the first instance. Upon

remand following our dismissal of this appeal, the district court will be in a position to consider

that question.

19

v. Gen. Fin. Loan Co. of Downtown, 623 F.2d 1128, 1129 (5th Cir. 1980).

Because the grant of summary judgment in the third-party defendants’ favor

on the contractual indemnification count failed to adjudicate finally the indemnity

claim as a whole, the first requirement for entry of partial judgment under Rule

54(b) was not satisfied. As such, we need not reach the second requirement that

the district court find no just reason for delay in entering partial judgment. We

must simply dismiss the case for want of jurisdiction.

III.

Lamentably, the jurisdictional defect in this appeal was not identified until

after briefing and oral argument on the merits. Nevertheless, lack of jurisdiction

gives us no authority to go forward. On remand, however, the parties will be free

to seek partial judgments with proper Rule 54(b) certifications once the district

court resolves either (a) any one claim in its entirety, or (b) all the claims as to any

one party. Lex Tex Ltd. v. Unifi, Inc. (In re Yarn Processing Patent Validity

Litig.), 680 F.2d 1338, 1340 (11th Cir. 1982) (per curiam). The parties may also

desire to mitigate the wasted effort on this appeal by requesting that, to the extent
20

applicable, any future appeal to this court from a properly certified Rule 54(b)

partial judgment be submitted on the records and briefs prepared in this appeal,

supplemented with the new judgments, and on the oral argument previously heard

before this panel. Id.

DISMISSED.