*

Honorable Wilbur D. Owens, U.S. District Judge for the

Middle District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

Nos. 94-4611, 94-5027.

In re SOUTHEAST BANKING CORPORATION, Debtor.

William A. BRANDT, Jr., as Trustee of Southeast Banking

Corporation, Plaintiff-Appellant,

v.

Florence S. BASSETT, as Personal Representative of the Estate of

Harry Hood Bassett, Donald N. Boyce, Joseph A. Boyd, M. Anthony

Burns, Edward D. Duda, et al., Defendants-Appellees.

FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for Southeast

Bank, N.A., Intervenor-Plaintiff,

v.

William A. BRANT, Jr., as Trustee of Southeast Banking

Corporation, Florence S. Bassett, as Personal Representative of the

Estate of Harry Hood Bassett, et al., Intervenors-Defendants.

William A. BRANDT, Jr., as Trustee of Southeast Banking

Corporation, derivatively and on behalf of the Federal Deposit

Insurance Corporation as receiver of Southeast Bank, N.A. and

Southeast Bank, West Florida, Plaintiff-Appellant,

v.

Florence S. BASSETT, as Personal Representative of the Estate of

Harry Hood Bassett, Donald N. Boyce, Joseph A. Boyd, et al.,

Defendants-Appellees.

Nov. 30, 1995.

Appeals from the United States District Court for the Southern

District of Florida. Nos. 93-1829-CIV-EBD, 92-1600-CIV-EBD(SMA),

Sidney M. Aronovitz, Judge.

Before HATCHETT and CARNES, Circuit Judges, and OWENS*, District

Judge.

CARNES, Circuit Judge:

This is a consolidated appeal from two district court orders
dismissing certain averments brought by a Chapter 7 bankruptcy

trustee on behalf of a bank holding company against former

directors and officers of the holding company and its subsidiary

bank.

In the first case, No. 94-4611, the district court dismissed

some averments in the complaint on the ground that they constitute

a derivative action which can be asserted only by the Federal

Deposit Insurance Corporation, as receiver and successor in

interest to the holding company's subsidiary bank. The district

court dismissed other averments as barred by the statute of

limitations, and dismissed the complaint in its entirety insofar as

it concerns two of the defendants. The district court directed

entry of final judgment on the dismissed averments pursuant to

Fed.R.Civ.P. 54(b). As to that case, we hold that we lack

jurisdiction to review the statute of limitations ruling because it

was not a final judgment properly subject to Rule 54(b)

certification. For the same reason, we do not have jurisdiction to

review the district court's dismissal of the averments that it held

constitute a derivative action. We do, however, have jurisdiction

over the final judgment dismissing the entire complaint insofar as

it concerns two of the defendants, and we reverse that judgment.

In the second case, No. 94-5027, a forthright derivative

action, the district court dismissed the trustee's entire

complaint, holding that it is collaterally estopped by a holding in

the first case. We have jurisdiction to review the judgment in the

second case, and we affirm it.

I. BACKGROUND
A. The Bankruptcy Proceedings

Southeast Banking Corporation ("the holding company") is a

bank holding company incorporated under the laws of the State of

Florida. It is the holding company for Southeast Bank, N.A. ("the

subsidiary bank"), which was placed in receivership by the FDIC in

September of 1991. Two days after that happened, the holding

company filed a voluntary petition for relief under Chapter 7 of

the Bankruptcy Code, 11 U.S.C. § 101, et seq., in the United States

Bankruptcy Court for the Southern District of Florida. William J.

Brandt, Jr., is the trustee in bankruptcy of the holding company.

B. The Direct Action Litigation—Case No. 94-4611

In June of 1992 the trustee filed, on behalf of the holding

company, a complaint in the district court against eighteen former

directors and officers of the holding company, claiming that they

had consciously disregarded their duties to the holding company and

that they had acted contrary to the holding company's best interest

in order to entrench themselves as directors and officers. With

one exception, the defendants also were directors and officers of

the subsidiary bank. In July of 1993, the district court held that

the complaint alleged primarily derivative claims arising out of

the defendants' conduct in managing the subsidiary bank, instead of

direct claims arising out of the defendants' conduct as directors

and officers of the holding company. In re Southeast Banking

Corp., 827 F.Supp. 742 (S.D.Fla.1993). The court further held

that, pursuant to the Financial Institutions Reform, Recovery and

Enforcement Act ("FIRREA"), 12 U.S.C. § 1821(d)(2)(A)(i) (1988) all

such derivative claims belong exclusively to the FDIC as receiver
and successor in interest to the shareholders of the subsidiary

bank, and therefore dismissed the complaint. Id. The trustee

filed a first amended complaint, which the district court again

dismissed, this time on the ground that it did not contain

sufficient specific factual allegations to comply with Fed.R.Civ.P.

8.

The trustee then filed a second amended complaint alleging the

following: (1) the defendants refused to consider in good faith

any merger involving the holding company that would jeopardize

their positions as directors and officers; (2) the defendants

directed the holding company to acquire several Florida banks

without regard to whether such acquisitions were in its best

interest, in order to make it too large for a hostile takeover;

(3) the defendants distributed dividends on the holding company's

common stock against the best interest of the holding company and

its shareholders, in order to cover up the defendants'

mismanagement of the holding company; and (4) the defendants

directed and caused a precipitous increase in lending by the

subsidiary banks in order to make the holding company too large for

a hostile takeover. The defendants moved, under Fed.R.Civ.P.

12(b)(6), to dismiss the second amended complaint on a number of

grounds, including their contentions that the statute of

limitations bars many of the averments, and that any action related

to the lending practices of the subsidiary bank can be asserted

only by the FDIC as receiver and successor in interest to the

shareholders. In re Southeast Banking, Corp., 855 F.Supp. 353, 356

(S.D.Fla.1994).
 1

Appellee Alfonso Fanjul, Jr., is a defendant in the direct

action and not in the derivative action. With that one

exception, the defendants are the same in both cases. 

In May of 1994, the district court denied the motion to

dismiss as to most of the second amended complaint. However, it

did dismiss the averments that the defendants improperly directed

the subsidiary bank's lending practices and all of the averments

relating to conduct that occurred before September 20, 1987, the

date beyond which the action is barred by the statute of

limitations, according to the district court. Id. at 358. The

court also dismissed the entire complaint insofar as it concerns

two of the defendants, James J. Forese and Charles D. Towers, Jr.,

who had been on the holding company Board of Directors only a short

period of time. Id. The district court directed entry of a final

judgment on the dismissed claims pursuant to Fed.R.Civ.P. 54(b),

expressly determining that there is no just reason for delay. Id.

at 361. The trustee has appealed the district court's judgments,

and that appeal is our case No. 94-4611.

C. The Derivative Action Litigation—Case No. 94-5027

In September of 1993, the trustee filed a "First Amended

Verified Derivative Complaint" against virtually the same

defendants,1

 alleging that they had consciously disregarded their

duties as directors and officers of the subsidiary bank and of

another of the holding company's subsidiary banks. The district

court dismissed the derivative complaint on grounds that it is

collaterally estopped by the prior holding in the direct action

that such derivative claims can only be asserted by the FDIC. The

trustee's appeal of that judgment is our case No. 94-5027.
II. THE DIRECT ACTION LITIGATION, No. 94-4611

A. Appellate Jurisdiction

Initially, we must determine if we have jurisdiction to hear

the appeal in case No. 94-4611, the direct action litigation. None

of the district court's decisions that the trustee appeals are

orders relating to injunctions, see 28 U.S.C. § 1292(a), or orders

as to which permission to appeal has been granted pursuant to 28

U.S.C. § 1292(b), nor is there any contention that we have

jurisdiction on any basis other than Rule 54(b). The trustee

contends that we have appellate jurisdiction because of the

district court's certification under Federal Rule of Civil

Procedure 54(b), which provides, in pertinent part:

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 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.

 A district court's Rule 54(b) determinations, which directly

affect the scope of our appellate jurisdiction, are not conclusive

on us. Pitney Bowes, Inc. v. Mestre, 701 F.2d 1365, 1369 (11th

Cir.), cert. denied, 464 U.S. 893, 104 S.Ct. 239, 78 L.Ed.2d 230

(1983). Instead, we review such determinations to see if they fit

within the scope of the rule. Id.; Braswell Shipyards, Inc. v.

Beazer East, Inc., 2 F.3d 1331, 1336 (4th Cir.1993).

1. The Standard of Review

 We apply a two-pronged test to review a district court's Rule

54(b) certification. Curtiss-Wright Corp. v. General Electric Co.,

446 U.S. 1, 10, 100 S.Ct. 1460, 1466, 64 L.Ed.2d 1 (1980). First,
we scrutinize the district court's evaluation of the

interrelationship of the claims, in order to decide whether the

district court completely disposed of one or more claims, which is

a prerequisite for an appeal under the rule. Id.; see also Howard

v. Parisian, Inc., 807 F.2d 1560, 1566 (11th Cir.1987); Pitney

Bowes, 701 F.2d at 1369. Our scrutiny under this first prong

approaches de novo review, because we have a duty to "scrutinize"

the district court's determination in order to ensure that limits

on our jurisdiction are observed; however, there is some room for

deference particularly where the district court has made its

reasoning clear. See Curtiss-Wright, 466 U.S. at 10, 100 S.Ct. at

1466 (proper role of court of appeals is to ensure that the

district court's Rule 54(b) related conclusions and assessments are

juridically sound and supported by the record).

 When a district court is persuaded that Rule 54(b)

certification is appropriate, the district court should support its

conclusion by clearly and cogently expressing its reasoning and the

factual and legal determinations supporting that reasoning. Cf.

Explosives Supply Co. v. Columbia Nitrogen Corp., 691 F.2d 486, 486

(11th Cir.1982) (observing that the district court is not required,

in every case, to express its reasoning, although "the desirability

of such a statement of reasons is obvious since an explanation

would assist appellate courts in reviewing district court

decisions."); Braswell, 2 F.3d at 1336 ("The expression of clear

and cogent findings of fact is crucial."). As other courts have

recognized, being explicit about its reasoning not only assists the

district court itself in analyzing the interrelatedness of the
claims and the equities of the situation, but also facilitates

appellate review of a Rule 54(b) certification. Id.; AllisChalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d

Cir.1975). Curtiss-Wright directs us to "scrutinize" the district

court's reasoning about the interrelationship of the claims, 466

U.S. at 10, 100 S.Ct. at 1466, and in doing that it certainly helps

if we know what that reasoning is.

 We are sensitive to the burdens placed on district courts,

but they have an experiential advantage over this Court in parsing

out claims at the pretrial stage. If 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, we do the best

we can without that assistance, but any deference we might

otherwise afford such a ruling will be nullified by the absence of

a meaningful explanation. Braswell, 2 F.3d at 1336 ("[N]umerous

courts have held that where the district court's Rule 54(b)

certification is devoid of findings or reasoning in support

thereof, the deference normally accorded such a certification is

nullified.").

 As to the second prong of the inquiry under the rule—whether

there is any just reason for delay—we accord the district court's

determination considerably more deference than we do its first

prong determination. Curtiss-Wright, 466 U.S. at 10, 100 S.Ct. at

1466. We will not disturb the district court's assessment that

there is "no just reason for delay" unless the court's conclusion

was "clearly unreasonable," id., because "the task of weighing and

balancing the contending factors is peculiarly one for the trial
judge, who can explore all the facets of a case," id. at 12, 100

S.Ct. at 1467.

2. The Requirement of Separability for Rule 54(b) Certification

 A judgment properly may be certified under the terms of Rule

54(b) only if it possesses the requisite degree of finality. That

is, the judgment must completely dispose of at least one

substantive claim. Howard, 807 F.2d at 1566. A partial or

interlocutory adjudication of a claim cannot be certified merely

because it is labelled a "partial summary judgment" or labelled a

12(b)(6) dismissal, even if the requisite "express determination"

has been made. Cf. id. ("Because an order denying a jury demand

does not dispose entirely of a claim but leaves the claim pending

for a bench trial, it is an interlocutory order. Therefore, the

order was not subject to certification under Rule 54(b)."

(citation omitted)).

 The purpose of Rule 54(b) is to codify the historic practice

of "prohibit[ing] piecemeal disposition of litigation and

permitting appeals only from final judgments," except in the

"infrequent harsh case" in which the district court properly makes

the determinations contemplated by the Rule. Fed.R.Civ.P. 54(b)

advisory committee's note to 1946 amendment; Vann v. Citicorp Sav.

of Ill., 891 F.2d 1507, 1509-10 (11th Cir.1990). A district court

has the discretion to certify a judgment for immediate appeal only

when it is "final" within the meaning of Rule 54(b), which means

that the judgment disposes entirely of a separable claim or
 2

Certification should not, however, be routinely granted in

any event. See Curtiss-Wright, 466 U.S. at 8, 100 S.Ct. at 1465

("Not all final judgments on individual claims should be

immediately appealable, even if they are in some sense separable

from the remaining unresolved claims."). It should be granted

only if there exists some danger of hardship or injustice through

delay, that would be alleviated by immediate appeal. See Vann,

891 F.2d at 1509-10. 

dismisses a party entirely. Pitney Bowes, 701 F.2d at 1369 n. 8.2

Here, we are concerned with whether the district court

disposed entirely of one or more separable claims. To determine

this, we must delineate the point at which one claim parts company

with another, which often is a difficult task. As one authority

has noted, courts have frequently observed that the line between

deciding one of several claims and deciding only part of a single

claim is very obscure, and have on too few occasions articulated

the basis for their decisions in this area. 10 Charles A. Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure §

2657, at 67 (2d ed. 1983) (hereinafter Wright); see also James Wm.

Moore, et al., Moore's Federal Practice ¶ 54.33[2], at 54-197 (2d

ed. 1995) (hereinafter Moore) ("With the doctrine thus in ferment

it is difficult to state any reliable limits for identifying a

distinct "claim for relief.' "). This Court has cautioned against

an inflexible approach to jurisdictional questions. Vann, 891 F.2d

at 509; see also Curtiss-Wright, 446 U.S. at 10-11, 100 S.Ct. at

1466-67 ("[B]ecause the number of possible situations is large, we

are reluctant either to fix or sanction narrow guidelines for the

district courts to follow."); In re Martin Bros. Toolmaker, Inc.,

796 F.2d 1435, 1437 (11th Cir.1986). Nevertheless, there are

certain guidelines that we apply.
 Claims are separable when there is more than one possible

recovery, 10 Wright, § 2657, at 67, or if "different sorts of

relief" are sought, see Seatrain Shipbuilding Corp. v. Shell Oil

Co., 444 U.S. 572, 580-81 & n. 18, 100 S.Ct. 800, 805-06 & n. 18,

63 L.Ed.2d 36 (1980). When either of these circumstances exists,

claims are "separately enforceable" and subject to Rule 54(b)

certification even if they arise out of a single transaction or

occurrence. See Cold Metal Process Co. v. United Engineering &

Foundry Co., 351 U.S. 445, 452, 76 S.Ct. 904, 908, 100 L.Ed. 1311

(1956); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436-37 & n.

9, 76 S.Ct. 895, 900-01 & n. 9, 100 L.Ed. 1297 (1956). However,

the same is not true if the claims for relief would not permit more

than one possible recovery; if the possible recoveries under

various portions of the complaint are mutually exclusive, or

substantially overlap, then they are not separable claims. 10

Wright, § 2657, at 67. That situation exists when the plaintiff

presents more than one legal theory, but will be permitted to

recover on only one of them. In such a case, there is only a

single inseparable claim for relief for purposes of Rule 54(b).

Id. at 69.

 These limits on Rule 54(b) certifications are jurisdictional

and they are informed by the practical implications of reading the

rule broadly. See Curtiss-Wright, 466 U.S. at 8-10, 100 S.Ct. at

1464-66; Minority Police Officers Ass'n of South Bend v. City of

South Bend, Ind., 721 F.2d 197, 200 (7th Cir.1983) ("[W]e must

delve deeper before deciding that this is a case of genuinely

separate claims under Rule 54(b).... [because] [t]here are grave
practical objections to reading the rule broadly."). The caseload

of the federal courts of appeals has grown faster than that of any

other component of the federal judiciary. Minority Police

Officers, 721 F.2d at 200. A liberal construction of Rule 54(b)

has a tremendous potential to increase our caseload still more

rapidly, because of the rule's natural tendency to multiply appeals

in a single case. Id. This case is a good example: even if we

were to decide each of the issues raised in the present appeals, we

are quite likely to have to decide one or more additional appeals

in these cases in the future. Although "each appeal in a series of

multiple appeals in the same case should be easier to decide than

would be an appeal from a final judgment disposing of the entire

lawsuit, the greater simplicity will usually be outweighed by the

burden on this court of having to reacquaint itself again and again

with at least the basic facts of the case." Id. Thus, when we

consider whether claims are separate, we will keep in mind the

purpose and practical implications of Rule 54(b).

B. The District Court's Rulings

The district court dismissed portions of the complaint in the

direct action as to all the defendants for two reasons: (1) some

of the allegations are barred by the statute of limitations; and

(2) some of the allegations are derivative in nature and can be

asserted only by the FDIC as statutory receiver and successor in

interest to the shareholders of the subsidiary bank. The court

also dismissed the complaint in its entirety as to two of the

defendants, Forese and Towers. We address each of the court's

rulings in turn to decide whether they were properly certified
under Rule 54(b).

1. The Statute of Limitations Ruling

 We begin with the district court's action certifying its

statute of limitations ruling as a final judgment. The trustee's

complaint presented four categories of averments:

(1) the defendants refused to consider in good faith any

merger that would jeopardize their positions as directors and

officers;

(2) the defendants directed the holding company to acquire

several Florida banks without regard to whether such acquisitions

were in its best interest, in order to make it too large for a

hostile takeover;

(3) the defendants distributed dividends on the holding

company's common stock against the best interest of the holding

company and its shareholders, in order to cover up the defendants'

mismanagement of the holding company; and

(4) the defendants directed and caused a precipitous increase

in lending by the holding company's subsidiary banks, in order to

make it too large for a hostile takeover.

Even if we assume—contrary to reality—that the four categories

of averments in the complaint are separable claims for Rule 54(b)

purposes, although the statute of limitations ruling cuts across

two of them it did not dispose entirely of any one of the four

categories of averments. Minority Police Officers, 721 F.2d at 201

(holding that district court's ruling that statute of limitations

barred liability for acts of discrimination committed more than two

years before the complaint was filed was not a final judgment under
Rule 54(b), because claims within the limitations period remained

for trial). None of the four categories of averments can be split

into separable claims by dividing the averments into time periods.

For example, as to the first category of averments, the relief the

complaint seeks for wrongful failure to consider a merger can be

recovered only once. Relief cannot be recovered for the wrongful

failure to consider merger in 1986, and again for 1987, and so

forth. Cf. Schexnaydre v. Travelers Ins. Co., 527 F.2d 855, 856

(5th Cir.1976) (using the term "multiplicity" instead of

"separability," and holding that, "[t]rue multiplicity is not

present where, as here, the plaintiff merely presents alternative

theories, drawn from the law of the same sovereign, by which the

same set of facts might give rise to a single liability.").

The same is true of the only other category of averments

affected by the statute of limitations ruling. The second category

addresses a continuing course of improper conduct in the adoption

and maintenance of "a policy of acquiring additional banks and

thrifts for the purpose of making [the holding company] too large

for any other bank holding company to acquire." The trustee can

not recover repeatedly for the defendants' adoption or maintenance

of a single improper policy.

Because the district court's statute of limitations ruling did

not dispose of separable claims, it was not a final judgment within

the meaning of Rule 54(b). Instead, the ruling was merely an

interlocutory order, which cannot be transformed under Rule 54(b)

into a final order for purposes of expediting an appeal. Howard,

807 F.2d at 1566; see also Wheeler v. American Home Products
Corp., 582 F.2d 891, 896 (5th Cir.1977). Accordingly, we lack

jurisdiction to review it. We turn now to the district court's

ruling about the portion of the complaint concerning the subsidiary

bank's lending practices.

2. The Subsidiary Bank Lending Practices Ruling

 The trustee alleged that the defendants caused the subsidiary

bank to increase its lending, against the best interest of the

subsidiary bank, and thus against the best interest of the holding

company. The district court determined that these allegations

stated a derivative action on behalf of the subsidiary bank and

that, under FIRREA, any such derivative action belonged exclusively

to the FDIC as successor in interest to the shareholders of the

subsidiary bank. The court therefore dismissed the portions of the

complaint that concerned the subsidiary bank's lending practices.

Although the portion of the complaint concerning the

subsidiary bank's lending practices may appear at first glance to

be distinct from other portions of the complaint, it is actually

substantially interrelated with the averments about the wrongful

failure to consider a merger. The point of the subsidiary bank

lending practices averments is that the defendants specifically

directed the subsidiary bank to make "bad loans," which cost the

subsidiary bank money, and in turn, by way of pass-through, hurt

the holding company. The relief sought is intertwined with and

inseparable from the relief sought for the failure to consider

merger with another holding company, because the failure to

consider merger averments, if successful, will foreclose at least

some—if not all—of the relief sought for the improper lending
 3

The district court's statute of limitations ruling

truncated, or eliminated some of, both the failure to consider

merger averments and the subsidiary bank lending practices

averments. Thus, to the extent each category of averments is not

time-barred, they may well accrue on the same date, September 20,

1987. If so, and the trustee is successful on the failure to

consider merger claim, all of the relief sought on the subsidiary

bank lending practices averments will become a component of the

relief on the failure to consider merger averments. In fact, the

failure to consider merger averments would swallow (or foreclose)

all the others in the complaint. 

practices. If that were not true, there would be double recovery

for some of the same injury. The holding company would recover

twice because its relief on the failure to consider merger

averments would compensate it for all proximately caused damage

arising after the failure to merge, which would include at least

some of the relief sought on the subsidiary bank lending practices

averments. Stated differently, the relief for failure to consider

merger would presumably compensate the holding company for all

damages from the continued service of the directors beyond the date

on which a merger should have occurred, and those damages would

include any damages flowing from all the defendants' improper

conduct that took place after their failure to merge the holding

company. Thus, the lending practices damages would overlap to some

extent with the damages on the failure to consider merger

averments.3

 This being so, these two categories of averments are

not separable in the Rule 54(b) sense. See 10 Wright, § 2657, at

67 (observing that claims are separable when there is more than one

possible recovery and the recoveries are not mutually exclusive);

General Acc. Ins. Co. v. J.K. Chrysler Plymouth Corp., 139 F.R.D.

585, 587 (E.D.N.Y.1991) (same).

 Even if recovery on the failure to consider merger averments
would not preclude, in whole or in part, a separate recovery on the

lending claim, we might well reach the same result we reach here.

The strong policy against piecemeal litigation, which informs the

determination of separability and "requisite finality" for Rule

54(b) purposes, supports our result. See Curtiss-Wright, 466 U.S.

at 8-10, 100 S.Ct. at 1464-66; Minority Police Officers, 721 F.2d

at 200 (recognizing the practical affect of piecemeal appeals on

appellate court caseloads). An underlying theme of managerial

entrenchment runs through the entirety of the trustee's complaint,

and ties the averments together. The facts and any evidence in

terms of intent, as well as the law relating to breach of fiduciary

duty, overlap considerably between the failure to consider merger

averments and the subsidiary bank lending practices averments. If

we were now to review the district court's ruling on the subsidiary

bank lending practices, we would undoubtedly find ourselves dealing

with much of the same issues, facts, and law again in a subsequent

appeal after the final disposition of the case in the district

court. See, e.g., Curtiss-Wright, 466 U.S. at 6-7, 100 S.Ct. at

1463-64 (affirming district court's Rule 54(b) certification in

which the district court "found that certification would not result

in unnecessary appellate review; that the claims finally

adjudicated were separate, distinct, and independent of any of the

other claims or counterclaims involved; that review of these

adjudicated claims would not be mooted by any future developments

in the case; and that the nature of the claims was such that no

appellate court would have to decide the same issues more than once

even if there were subsequent appeals."); Explosives Supply, 691
F.2d at 486-87 (affirming district court's certification of

judgment when "the opinion of the lower court clearly shows the

separability of the claims such that neither the same issues nor

facts would be before the reviewing court more than once.").

District courts should be conservative in exercising their Rule

54(b) discretion.

3. The Ruling Dismissing the Entire Complaint Insofar As It

Concerned Defendants Forese and Towers

 Certification of the district court's ruling dismissing the

entire complaint insofar as it concerned Defendants Forese and

Towers was within the district court's discretion because, without

question, it was a "final judgment as to one or more but fewer than

all ... the parties." Fed.R.Civ.P. 54(b). The district court

directed the entry of final judgment and made an express

determination that there is no just reason for delay. The language

of the rule itself makes clear that certification was allowable

under the first prong. As to the second prong, we can not say that

the district court abused its discretion in determining that there

is no just reason for delay. Curtiss-Wright, 446 U.S. at 10, 100

S.Ct. at 1466 (under the second prong of certification, "the

decision to certify ... [is] left to the sound judicial discretion

of the district court...., [which we review in] the interest of

sound judicial administration." (quotation marks omitted)). We

have jurisdiction to review the judgment, and we turn now to the

merits.

 The district court dismissed the complaint entirely insofar

as it concerned Defendants Forese and Towers for two reasons.
First, the district court determined that the two defendants served

relatively short tenures as directors of the holding company, and

thus could not have been responsible for the activity alleged in

the complaint. However, the complaint does allege a continuing

pattern of improper conduct, spanning a time period which includes

the period Forese and Towers served as directors of the holding

company. At this stage of the litigation, on a motion to dismiss,

it was inappropriate for the court to go beyond determining whether

a claim has been pleaded against the defendants and speculate about

what the evidence might show. Scheuer v. Rhodes, 416 U.S. 232,

236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) ("The issue is not

whether the plaintiff will ultimately prevail but whether a

claimant is entitled to offer evidence to support the claims.");

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d

80 (1957) ("In appraising the sufficiency of the complaint we

follow, of course, the accepted rule that a complaint should not be

dismissed for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.") (footnote omitted).

The district court's apparent conclusion that Forese and Towers

were not responsible for the policies of the Board, because of

their short tenures, was premature. The defendants will have an

opportunity to move for summary judgment, which is the appropriate

stage for the district court to make such a determination.

 The district court's second reason for dismissing the

complaint as against Forese and Towers was that the court had

earlier ordered that when the trustee filed his second amended
complaint, he "allege with the greatest specificity those acts of

defendants Forese and Towers for which Plaintiff claims said

defendants are liable." In re Southeast, 855 F.Supp. at 358. The

trustee responded by simply attaching to the second amended

complaint four charts showing the terms of service of each

defendant. The court held that the charts "hardly suffice to

allege with any specificity, much less with "greatest specificity,'

those acts for which defendants Forese and Towers are allegedly

liable." Id. That is an accurate answer, but it is to the wrong

question; the court applied the wrong standard.

The standard for notice pleading set forth in Fed.R.Civ.P.

8(a)(2) requires "a short and plain statement of the claim showing

that the pleader is entitled to relief." We have held that:

Before a court may dismiss a claim under Rule 12(b)(6), it

must appear "beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief." Neither "notice pleading' requirements (Fed.R.Civ.P.

8(a)(2)) nor the standards which govern dismissals under Rule

12(b)(6) require a claimant to set out in detail the facts

upon which he bases his claim. Pretrial procedures such as

summary judgment (Fed.R.Civ.P. 56) and the motion for a more

definite statement (Fed.R.Civ.P. 12(a)) are the appropriate

devices to narrow the issues and disclose the boundaries of

the claim or defense.

Williams v. United Credit Plan of Chalmette, Inc., 526 F.2d 713,

714 (5th Cir.1976) (quoting Conley v. Gibson, 355 U.S. 41, 45-46,

78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). In ordering the trustee to

plead his claims against Forese and Towers "with the greatest

specificity," the district court imposed a higher pleading standard

upon the trustee than Rule 8(a)(2) allows. See Fed.R.Civ.P. 83

(requiring courts to reach decisions that are consistent with the

rules).
 4

The trustee does not seek to recover from Defendants Forese

and Towers on the category of averments related to the holding

company's acquisition of several Florida banks, against the best

interest of the holding company, because that occurred before

they joined the Board of Directors. 

 5Rule 8(a)(2) must be read in the context of Rule 11's

prohibition on pleadings formed without reasonable inquiry under

the circumstances. By filing the complaint in the first

instance, the trustee has certified that his claims are warranted

by existing law, or by a nonfrivolous argument for modification

of existing law, and that his allegations and factual contentions

have evidentiary support, or are likely to have evidentiary

 Forese and Towers contend that the district court did not

require the trustee to plead his allegations with more specificity

than required by Rule 8(a)(2). They argue that the court only

required that the trustee allege with the greatest specificity he

could. The problem with their contention is that, for better or

for worse, the Federal Rules of Civil Procedure do not permit

district courts to impose upon plaintiffs the burden to plead with

the greatest specificity they can. E.g., Quality Foods de Centro

America v. Latin American Agribusiness Dev. Corp., 711 F.2d 989,

995 (11th Cir.1983) ("[T]he alleged facts need not be spelled out

with exactitude, nor must recovery appear imminent."). The

trustee's complaint alleges Forese and Towers engaged in three of

the four categories of improper conduct specified in the complaint

during their tenures with the holding company.4

 Because the

complaint satisfies the low pleading burden imposed by Rule

8(a)(2), the district court's dismissal was improper. Id. ("[T]he

threshold of sufficiency that a complaint must meet to survive a

motion to dismiss for failure to state a claim is exceedingly

low."). Forese and Towers will have an opportunity to move for

summary judgment at the appropriate time.5
support after further investigation or discovery.

If, after remand, the trustee persists in pursuing

claims against Forese and Towers, and the district court

ultimately determines he did so in bad faith, Rule 11

sanctions may be appropriate. If Rule 11 sanctions are

levied, the district court will have discretion to levy them

against the trustee and his counsel individually, rather

than against the holding company. Fed.R.Civ.P. 11(c)

("[T]he court may ... impose an appropriate sanction upon

the attorneys, law firms, or parties that have violated

subdivision (b) or are responsible for the violation."). 

III. THE DERIVATIVE ACTION LITIGATION, No. 94-5027

 After the district court held in the direct action

litigation, discussed above, that the subsidiary bank lending

practices action belongs exclusively to the FDIC, the trustee filed

a "Verified Derivative Complaint" seeking to reassert on behalf of

the holding company essentially the same action in another form.

Following amendment of this derivative complaint, the defendants

moved to dismiss, relying on several alternative grounds including

the collateral estoppel effect of the prior order with respect to

the subsidiary bank lending practices. The district court

dismissed the derivative complaint in its entirety, under

Fed.R.Civ.P. 12(b)(6), based upon collateral estoppel.

Specifically, the district court found that: (1) the district

court in the direct action litigation had determined that the FDIC

had exclusive ownership of the subsidiary bank-related claims; (2)

the issue of subsidiary bank-related claim ownership was actually

litigated in the prior proceeding; (3) the ownership of those

claims was critical to the determination in that proceeding; and

(4) the trustee had had a full and fair opportunity to litigate the

issue previously, having submitted numerous memoranda of law and
having made two oral arguments on the issue in the direct action

litigation.

 Collateral estoppel bars relitigation of a previously decided

issue when the parties are the same (or in privity) if the party

against whom the issue was decided had a full and fair opportunity

to litigate the issue in the earlier proceeding. Allen v. McCurry,

449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980); In re

St. Laurent, 991 F.2d 672, 675 (11th Cir.1993). The following

elements must be established before collateral estoppel applies:

(1) the issue at stake must be identical to the one decided in the

prior litigation; (2) the issue must have been actually litigated

in the prior proceeding; (3) the prior determination of the issue

must have been a critical and necessary part of the judgment in

that earlier decision; and (4) the standard of proof in the prior

action must have been at least as stringent as the standard of

proof in the later case. St. Laurent, 991 F.2d at 676; Citibank

v. Data Lease Financial Corp., 904 F.2d 1498, 1501 n. 6 (11th

Cir.1990); S.E.L. Maduro, Inc. v. M/V Antonio De Gastaneta, 833

F.2d 1477, 1483 (11th Cir.1987).

The trustee argues that collateral estoppel is inapplicable

because the issue of whether he could maintain a derivative action

on behalf of the subsidiary bank was not previously decided in the

direct action litigation. He contends that the only issue before

the district court in the direct action litigation was whether the

claims set forth in the trustee's complaint were direct claims or

derivative claims. We disagree. The district court decided in the

direct action that the complaint in that action stated a derivative
 6

Although the district courts judgment in the prior case is

not yet "final" in the sense that it is appealable, the trustee

did not object in the district court, or in this Court, to the

application of collateral estoppel on that ground. We therefore

do not address that possible argument. See, e.g., United States

v. Hidalgo, 7 F.3d 1566, 1569 n. 2 (11th Cir.1993) ("[T]his

argument was not raised ... in the district court, was not

addressed by the magistrate judge or ruled on by the district

court, and was not raised in the statement of the issues or the

argument sections of [his] brief to this Court. Therefore it is

not properly before us."); Hicks v. Harris, 606 F.2d 65, 67 n. 3

(5th Cir.1979) ("Since this ground of attack on the trial court's

order was not raised below, it cannot be considered on appeal."); 

Prymer v. Ogden, 29 F.3d 1208, 1213-14 (7th Cir.1994) (holding

counsel's failure to object on the grounds that the elements of

collateral estoppel were not met amounted to waiver of that

argument). 

claim, and that for that reason it was barred by FIRREA. In re

Southeast, 827 F.Supp. at 746 ("These allegations plead classic

derivative claims which can only be asserted by the successor in

interest to the Bank, the FDIC.").6

 In addition, the district

court's conclusion that derivative actions can not be brought

except by the FDIC was a critical part of the judgment in the prior

litigation, satisfying the third element of the collateral estoppel

test. Moreover, both the prior decision and this second one

granted motions to dismiss the complaint—placing identical burdens

on the trustee—and thus the fourth element was satisfied.

The remaining question involves the second element: whether

the issue was "actually litigated." In the direct action

litigation the trustee apparently chose to focus on whether the

action was direct or derivative, and not on whether derivative

actions belong exclusively to the FDIC. However, the defendants

argued that the complaint asserted derivative claims, and that

under FIRREA such derivative claims could be raised only by the

FDIC. The trustee responded that he was asserting direct claims
belonging to the holding company and not to the shareholders of the

subsidiary bank generally, or the FDIC. In re Southeast Banking

Corp., 827 F.Supp. at 745. Against that backdrop, the district

court determined in the direct action litigation that that portion

of the trustee's complaint pleaded "classic derivative claims which

can only be asserted by the successor in interest to the Bank, the

FDIC." Id. at 746. The court then dismissed the averments in

question, stating, "By statute, the derivative claims are declared

to be the claims belonging to the FDIC...." Id. at 749. Thus, the

court squarely addressed the issue.

It appears the trustee may have, in the prior litigation,

selected a litigation strategy he now regrets, placing all his eggs

in the "direct, not derivative" basket. But his choice of that

strategy will not prevent the application of collateral estoppel.

See Moore, ¶ 0.441[2], at 523 ("If it has been determined in the

former action, it is binding notwithstanding the parties litigant

may have omitted to urge for or against it matters which, if urged,

would have produced an opposite result.").

We affirm the district court's order dismissing the derivative

action.

IV. CONCLUSION

We DISMISS, for lack of jurisdiction, the appeals in case No.

94-4611 from the district court's ruling on the statute of

limitations and its ruling that the averments related to the

subsidiary bank's lending practices may be asserted only by the

FDIC. We have jurisdiction over the district court's order in that

same case dismissing the complaint entirely as against Defendants
Forese and Towers, and we REVERSE that decision and REMAND the case

to the district court for further proceedings. Additionally, we

have jurisdiction over the appeal in case No. 94-5027, and we

AFFIRM the judgment in that case.