* District Judge of the Western District of Louisiana, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 91–2532.

ROAD SPRINKLER FITTERS LOCAL UNION, a/k/a United Association of Journeymen,

AFL–CIO, Plaintiff–Appellant,

v.

CONTINENTAL SPRINKLER COMPANY, et al., Defendants,

Universal Sprinkler Corporation, Defendant–Appellee.

July 28, 1992.

Appeal from the United States District Court for the Southern District of Texas.

Before WILLIAMS and WIENER, Circuit Judges, and LITTLE, * District Judge.

JERRE S. WILLIAMS, Circuit Judge:

The District Court for the Southern District of Texas granted summary judgment in favor of

defendant-appell e e Universal Sprinkler Corporati on ("Universal") in a suit brought by

plaintiff-ap pellant Road Sprinkler Fitters Local Union No. 669 ("Union"). This action against

defendant Continental Sprinkler Company ("Continental") sought to enforce the substantive

provisions of a collective bargaining agreement ("Agreement") between the Union and Continental

and compel arbitration under that Agreement. The Union lo st t he arbitration against Continental.

The district court ultimately granted Continental's unopposed motion to confirm the arbitration award

in favor of Continental and dismissed all remaining counts against it. The Union now undertakes to

enforce collective contract obligations against Universal on the ground that Universal is an alter ego

of Continental. The court, in granting the summary judgment, denied alleged obligations on the part

of Universal to the Union under the Agreement with Conti nent al. The denial of this summary

judgment is the basis of the appeal.

The su mmary judgment does not dispose of the entire case before the district court. TheTrustees of the National Automatic Sprinkler Industry Pension, Welfare, and Ed ucational Funds

("NASI Funds" or "Funds") sued Continental and Universal to recover delinquent contributions owed

by Continental under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C.

§§ 1001–1461. The suit was originally filed in district court in Maryland and was transferred to the

district court in Texas and consolidated. The claims by the Funds against Universal are still pending.

The Funds ask for the same remedy as the claims of the Union, a decision that Universal and

Continental are a single business, a single employer, or alter egos, and that Universal is liable for all

c o nt ribut io ns owed under the Agreement made by Continental. Also pending is a motion for

summary judgment by Universal against the Funds on the same grounds as the successful summary

judgment motion against the Union.

We conclude that we have no jurisdiction to hear this appeal of the summary judgment

granted Universal against the Union because issues in the case remain pending and there is no Rule

54(b) certification by the district court.

I. FACTS AND PRIOR PROCEEDINGS

Continental was formerly a fire sprinkler contractor headquartered in Houston, Texas,

unionized and bound to successive collective bargaining agreements, including th e Agreement at

issue, between the National Fire Sprinkler Association ("NFSA") and Local 669. In September 1988,

Continental fa c ed financial problems and ceased operations. The ostensible reason for the sudden

discontinuance of operati on was an inabilit y to obtain suitable bonding for its construction business.

Without proper bonding, Continental could not co mpete for the larger, more profitable jobs. The

Union alleged that Continental management offi cials then established a new nonunion business,

Universal, to perform bargaining unit work at terms and conditions that violated the Agreement.

In November 1988, Universal commenced operations after purchasing Continental's assets,

hiring the same upper-level management and some of t he same supervisors, producing the samesprinkler product, and continuing with similar jobs. Nonetheless, Universal did not purchase most

of Continental's inventory or take over its facilit ies. Further, Universal's workforce differed

substant ially from Continental's workforce. Universal did not agree to assume Continental's

obligations unde r t he Agreement nor did it execute a collective bargaining agreement nor any

agreement requiring contributions to the NASI Funds.

In December, 1988, the Union filed a grievance against Continental and Universal compelling

arbitration and alleging violations o f Article 3 of the Agreement. Specifically, the Union charged:

(1) Continental and Universal were operating as a single and/or joint employer and the Agreement

required the wage and fringe benefit provisions be applied to all work performed by Universal; (2)

Universal was Continental's successor and, therefore, Continental violated its obligation to assure that

Universal assume the Agreement; and (3) Continental used its "sale" or "transfer" to "evade" t he

terms of the Agreement. Continent al and Universal allegedly refused to proceed to arbitration.

Consequently, in January 1989, the Union filed a suit against Continental and Universal pursuant to

301 of the L abor Management Relations Act, 29 U.S.C. § 185. The action sought to compel

Continental to arbitrate its contractual di s putes with the Union and sought a judgment that

Continental and Universal were essentially alter egos under federal common law.

Continental ultimately agreed to be bound by the Agreement to which it was a signatory by

virtue of its status as a

co nt ract o r member of the NFSA, and submitted the Union grievance to

binding arbitration pursuant to the grievance clause in the Agreement. Universal, however, answered

the complaint, denied all liability, and declined to participate in the arbitration on the ground that it

was not a signatory to nor bound by the Agreement. The arbitrator rendered his decision in October

1989 and resolved all three issues in favor of Continental. On April 11, 1990, the district co urt

granted Continental's unopposed motion to confirm the arbitration award and dismissed all remaining

counts against it.1 The NASI Funds complaint against Continental Sprinkler Company and Universal Sprinkler

Corporation was brought pursuant to §§ 502(e)(2), 502(g)(2), and 515 of the Employee

Retirement Income Security Act of 1974 ("ERISA") as amended by the Multiemployer Pension

Plan Amendments Act ("MPPAA"), 29 U.S.C. §§ 1132(e)(2), 1132(g)(2), and 1145. The Funds

sought the payment of certain delinquent contributions owed to them by Continental, and further

sought a judgment that Universal and Continental as "a single integrated business enterprise,

single employer and/or alter egos of one another," were jointly and severally liable for all

contributions owed by Continental.

2 The Funds had settled all claims against Continental, but the settlement terms did not affect

the Funds' claims against Universal. On April 18, 1990, this act io n was consolidated with a suit filed by NASI Funds against

Continental and Universal. The suit had been filed originally in the United States District Court for

the District of Maryland in July 1989, approximately seven months after the Union fi led in the

Southern District of Texas. 1 It was transferred to the Southern District of Texas on joint motion of

the parties.

On May 10, 1990, Universal filed a motion for summary judgment against the Union asserting

res judicata and the collateral estoppel effect of both the arbitration decision and the order confirming

that decision. On March 28, 1991, Universal also filed a summary judgment motion against NASI

Funds claiming res judicata and collateral estoppel . Universal urged that the dismissals which the

district court granted were tantamount to a judgment on the merits that Continental was not liable

to either the Union or the Funds. 2 Consequently, if Continental, the signatory to the Agreement, was

not liable under the Agreement, t hen Universal whose alleged liability was merely derivative of

Continental's, could not be liable. If Continental was not the alter ego of Universal, then i pso facto,

Universal could not be the alter ego of Continental.

In opposition, NASI Funds denied the applicability of res judicata and collateral estoppel. At

a minimum, NASI Funds were not a party to the arbitration nor were they in privity with the Union.

According to NASI Funds, regardless of the Union's diligence in pursuit of its asserted contractual

violations, it could not represent adequately the interests of all of NASI Funds' participants. NASI

relied upon the consistent holdings by Courts that the funds may pursue actions independent of theactions of any of its sponsoring unions and regardless of the outcom e of any union-initiated litigation

or grievance. S ee, e.g., Moldovan v. Great Atlantic & Pacific Tea Co., 790 F.2d 894, 899–900 (3rd

Cir.1986) (finding that employee benefit fund trustees are not collaterally estopped from relitigating

the issues decided in the arbitration between the union and the employer), cert. denied, 485 U.S. 904,

108 S.Ct. 1074, 99 L.Ed.2d 233 (1988); B oard of Trustees, Container Mechanics Welfare/Pension

Fund v. Universal Enterprises, I nc., 751 F.2d 1177, 1183 (11th Cir.1985) (concluding that an

Administrative Law Judge's determination concerning alter ego did not preclude fund trustees from

litigating a similar allegation in federal court).

On May 3, 1991, the district court granted summary judgment in favor of Universal as against

t he Union only. The court rejected Universal's res judicata theory but held that the do ct rine o f

collateral estoppel applied to preclude the Union from pursuing in federal court the question of

Universal's alter ego status with Continental. The district court found that the alter ego claim was

a rbitrable, and that the issues involved in a judicial determination of alter ego status had been

presented to the arb it rat o r. The factors addressed in the "successorship" and "single employer"

doctrines had been considered, and "the Union had [had] the opportuni ty to present all of the

evidence that would be necessary for the Arbitrator to make findings on all theories."

In this appeal, the Union does not dispute that the arbitrator's decision fully disposed of the

theories of successorship and single employer. It urges, however, that the arbitrator did not address

the question of whether Universal and Continental were alter egos and, thus, the district court erred

in granting summary judgment in favor of Universal. Universal's primary assertion on this appeal is

that this Court lacks jurisdiction because it is an interlocutory appeal.

II. JURISDICTION

As a threshold matter, we must determine whether this Court has jurisdiction to entertain the

appeal. The NASI Funds case and the Union case have been consolidated. But a judgment has beenentered only against the Union. In an action that entails more than one claim for relief, a district court

may direct the entry of a final judgment as to fewer than all of the claims or parties in a case "only

upon an express determination that there is no just reason for delay and upon an express direction for

the entry of judgment." Fed.R.Civ.P. 54(b). Rule 54(b) assigns to the district court the duty to weigh

"the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice

by delay on the other." D ickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322,

324, 94 L.Ed. 299 (1950) (f ootnote omitted). The policy underlying both the finality rule and the

requirement of Rule 54(b) certification is to prohibit "piecemeal" appeals except under certain limit ed

circumstances. S ee Fed.R. C iv.P. 54(b) advisory committee note. S ee also Trinity Broadcasting

Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (per curiam), cert. denied, 487 U.S. 1223, 108

S.Ct. 2883, 101 L.Ed.2d 918 (1988). At issue in the instant case is whether, in this consolidated

action, a judgment that does not dispose of the claims of one of the parties constitutes a final decision

absent certification under Rule 54(b).

The issue before us is not novel. Other federal courts have confronted the finality of partial

summary judgment orders in consolidated cases. A divergence of opinion exists among these courts

as to the appealability of a judgment on one but not all of the actions. Some courts have held that

a judgment in one porti on of a consolidated action is final and appealable, even if other consolidated

claims are still pending. Those holdings, however, usually speak in terms of lack of co mplet e

consolidation. S ee General Contracting & Trading Co., LLC v. Interpole, Inc., 940 F.2d 20, 24 (1st

Cir.1991) (stating that "[o]ur cases are consentient to the effect that, although two cases may be

consolidated for purposes of convenience and judicial economy, they retain their separate identities");

Kraft, Inc. v. Local Union 327, Teamsters, Chauffeurs, Helpers and Taxicab Drivers, 683 F.2d 131,

133 (6th Cir.1982) (per curiam) (finding "that inasmuch as the consolidation of both actions below

did not merge the suits into a single cause, it is beyond peradventure that the trial court's decision [to

terminate one of the consolidate d actions] is a final appealable order," not requiring Rule 54(b)

certification); I

n re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441–42 (1st Cir.1972)3 Although Courts cite Massachusetts Helicopter for the proposition that a Rule 54(b)

determination is unnecessary for the immediate appeal of an order deciding only one of several

consolidated cases, see, e.g., Huene v. United States, 743 F.2d 703, 704 (9th Cir.1984); Kraft,

683 F.2d at 133, that decision is not necessarily in conflict with the more recent cases. The

consolidation in Massachusetts Helicopter was not for all purposes but only "for convenience of

pre-trial and trial procedure." 469 F.2d at 441. The Court found that "the cases maintained their

separate identities throughout the litigation," and separate judgments were issued in each of the

five cases. Id. (holding that consolidation for trial did not merge se parate suits into a single action, and thus

judgments rendered in each individual action are appealable as final ju dgment s even without the

requisite certification under Rule 54(b)). 3

These cases generally base their rationales on Johnson v. Manhattan Railw ay Co., 289 U.S.

479, 496–97, 53 S.Ct. 721, 727–28, 77 L.Ed. 1331 (1933). In J ohnson, the Supreme Court

recognized that:

[C]onsolidation is permitted as a matter of convenience and economy in administration, but

does not merge the suits into a single cause, or change the rights of the parties, or make those

who are parties in one suit parties in another. (footnote omitted.)

Johnson, however, predates the Federal Rules of Civil P ro cedure and did not involve any issue

relating to the finality of a judgment as a predicate for appellate jurisdiction.

Other circuits have embraced a conclusive rule that a judgment in a consolidated action that

does not dispose of all of the claims is not a final, appealable judgment. S ee Trinity Broadcasting

Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (per curiam), c ert. denied, 487 U.S. 1223, 108

S.Ct. 2883, 101 L.Ed.2d 918 (1988); H uene v. United States, 743 F.2d 703, 705 (9th Ci r.1984).

These Courts recognize the desirability of providing litigants with "crystal clear" guidance concerning

whether a judgment is final so as to avoid premature appeals with the consequent waste of time and

resources as well as to preserve the opportunities to file timely notices of appeal due to a mistaken

belief that a judgment is not final. H uene, 743 F.2d at 704. Further, the Courts stress that the district

court is best suited to assess the consolidation's original purpose and the likelihood that an interimappeal would frustrate that purpose.

This Court denies a rigid rule, and we inquire into the nature of and extent of consolidation

intended by the court. R ingwald v. Harris, 675 F.2d 768 (5th Cir.1982), is our seminal case

addressing the issue of the scope an d effect of consolidation. In R ingw ald, the plaint iff sued on a

promissory note and then filed a separate suit to set aside certain conveyances allegedly made by the

defendant to hinder, delay, and defraud the defendant's creditors, particularly the plaint iff. The two

cases were "consolidated for all purposes, including trial." Id. at 769. Upon plaintiff's motion, the

court entered summary judgment in favor of the plaintiff in one suit and partial summary judgment

in favor of the plaintiff in the other in a single document entitled "Judgment."

We found that:

While a consolidation may not in every respect merge separate actions into a single suit, we

see no reason why a proper consolidation may not cause otherwise separate actions to

th e nceforth be treated as a single judicial unit for purposes of Rule 54(b) when the

consolidation is clearly unlimit ed and the actions could originally have bee n brought as a

single suit.

Ringw ald, 675 F.2d at 771 (f ootnote omitted). Thus, since consolidation of causes that could have

been filed as a single suit existed, and the consolidation was "clearly for all purposes," compliance

with Rule 54(b) was necessary, "notwithstanding that the judgment or order in question dispose[d]

of all the claims and parties in one of the original actions." I d. (f ootnote omitted). Because Rule

54(b) certification was lacking, we dismissed without prejudice for lack of jurisdiction.

A number of Courts have adopted R ingwald 's case-by-case methodology. See Lewis

Charters, Inc. v. Huckins Yacht Corp., 871 F.2d 1046, 1048–49 (11th Cir.1989) (following Ringw ald

and scrutinizing the extent and purpose of consolidation, but finding that in its case, the district court

made it apparent that the suits were consolidated for limit ed purposes only, each retaining its separate

identity, and concluding that the dismissal of the appellant's action was final and appealable absentRule 54(b) certification); B ergman v. City of Atlantic City, 860 F.2d 560, 565–66 (3rd Cir.1988)

(citing Ringw ald 's analysis and finding that "where two actions have been consolidated for discovery

and trial or for all purposes

... an order concluding one of t he co nsolidated cases should not be

considered final and appealable"); S andw iches, Inc. v. Wendy's Int'l, Inc., 822 F.2d 707, 709–10 (7th

Cir.1987) (stating that if the cases have not been fully consolidated, then a party may appeal on the

ground "that all claims in a stand-alone suit have been disposed of"); I vanov–McPhee v. Washington

Nat'l Ins. Co., 719 F.2d 927, 929–30 (7th Cir.1983) (following Ringw ald and holding that "where

consolidated cases could, without undue burden, have been brought as one action, where there is no

clear evidence that they have in substance been consolidated only for limit ed purposes, and where

there is no showing that the appellant's interests will be seriously undermined by dismissal of the

appe al, t he provisions of Rule 54(b) must be complied with, notwithstanding that the judgment in

question disposes of all the claims and parties in one of the original actions"). S ee also Kuehne &

Nagel (AG & Co.) v. Geosource, Inc., 874 F.2d 283, 287 n. 1 (5th Cir.1989) (citing Ringw ald for

the proposition that "parties must satisfy Fed.R.Civ.P. 54(b) when appealing from a judgment

adjudicating less than all claims of all parties in a consolidated action").

Finally, using a variation of the case-by-case analysis employed by Ringw ald, one Court has

held that i f a judgment in a consolidated case does not dispose of all claims which have been

consolidated, a strong presumption exists that the judgment i s no t appealable absent rule 54(b)

certification. S ee Hageman v. City Investing Co., 851 F.2d 69, 71 (2d Cir.1988). In H ageman, the

Second Circuit found that only in "highly unusual cases," a term the Court left undefined, would this

presumption be overcome and convince the Court to consider the merits of the appeal immediat ely.

Cf. Kamerman v. Steinberg, 891 F.2d 424, 429–30 (2d Cir.1989) (finding highly unusual

circumstances because t he case o n appeal was the only one of the consolidated cases presenting

derivative claims in which th e judgment on appeal had decided all such claims in favor of all the

defendants and the district court clearly intended final judgment to be entered with respect to those

claims).4 Universal's motion for consolidation was unopposed. It stated that since "[t]hese cases

involve[d] common questions of law and fact," they were subject to consolidation pursuant to

Fed.R.Civ.P. 42(a). Further, the motion addressed the broad discretion federal district courts

possess under Rule 42(a) to consolidate causes pending in the same district, and asserted that

such a consolidation would "avoid a duplication of judicial effort." The motion made no mention

of any limitation on the consolidation.

5 Universal directed the Court to the following language in the NASI Funds' complaint,

language that was almost identical, word for word, with the language of the Union's complaint.

The only differences are bracketed.

Count II, § 13: [Count II, § 14] In or about November, 1988, Universal was

established for the purpose of avoiding Continental's contractual obligations under

the Agreement. Since Universal's establishment, Continental and Universal have

been at all times material herein affiliated business enterprises with common

ownership, common management, common business purpose, common facilities,

common equipment and other assets, common employees, common jobs, common

supervision, and common customers, and thus constitute a single integrated

business enterprise, single employer, and/or alter egos of one another, [and

Universal further is a successor and/or disguised continuance of Continental.]" In the case before us, Universal c o nt ends t hat the appeal from the summary judgment is

premature, so this Court lacks appellate jurisdiction. Co nsequently, we are urged to dismiss the

appeal and impose sanctions, double costs and attorn eys' fees, for a frivolous appeal. Relying on

Ringw ald, Universal addresses the two probative factors: (1) the consolidated cases could have been

filed as a single suit and (2) the consolidation is clearly for all purposes. First, Universal relies upon

the sweep of the district court's order to show that consolidation of t he two actions was clearly

unlimited. The district court order states:

These cases are consolidated into the senior civil action. The case subsumed [Funds] in the

senior case [Union] by consolidation ceases to have an independent identity. The unified case

will pend as Civil Action No. H–88–4414, Road Sprinkler Fitters Local Union No. 669, U.A.

A FL–CIO v. Continental Sprinkler Company and Universal Sprinkler Corporation. Use only

this style and number.

Second, Universal contends that the Union and the Funds relied upon identical legal theories.

Both asked that Universal be compelled to make contributions to the NASI Funds, basing their claim

upon the single employer or alter ego theory. 4 Universal further sets out a convincing comparison

of the two complaints which clearly illustrates the striking similarit y between the claims and the relief

sought. 5According to Universal, following this language, both parties proclaimed in identical terms

that "[b]y virtue of the relationships described above, Universal has been, at all material

times, bound by the Agreement (Exhibit A)." Further, both stated, in almost identical

terms, the following (the slight differences in the wording of the Union's complaint are

shown in brackets):

Under the terms of the Agreement, an employer is required to submit monthly

reports and contributions to the NASI Funds [various fringe benefit funds] referred

to in the Agreement (Exhibit A, Articles 19–23), and to be bound by the

Declarations of Trust governing those Funds. Pursuant thereto, a delinquent

employer is required to pay all contributions owed, together with liquidated

damages and interest, on all delinquent contributions, as well as [and to pay] all

attorneys' fees and costs incurred in collecting such delinquent amounts. Universal

has failed in its obligations to make reports and contributions as required by the

Agreement. The Union argues that the appeal is appropriate and that Ringw ald is inapposite—certification

under Rule 54(b) is not necessary. According to the Union, R ingwald 's holding was e xpressly

confined to cases clearly consolidated for all purposes that could have been filed as a single suit.

Neither factor, it is claimed, exists in this case. There are two separate and distinct plaintiffs whose

actions were filed by different parties in separate jurisdictions under distinct legal theories that could

not have been brought as a single suit. Further, the cases were not clearly consolidated for all

purposes—neith er the consolidation nor any district court document defines the purposes of the

consolidation.

Contr ary t o the Union's assertion, we find R ingwald clearly dispositive. We have applied

Ringw ald 's case-by-case approach, tak ing int o account the nature of the consolidation and the

relationship of the consolidated actions. We find it impossible to maintain, as the Union suggests, that

the two actions remained essentially separate and did not merge into a single case. The district court

declared: "The case subsumed [Funds] in the senior case [Union] by consolidation ceases to have

an independe nt identity. " (emphasis added). There is no indication that the district court

consolidated the cases only for limit ed purposes. Further, as evidenced by Universal's comparisons,

the two actions could have been originally combined for filing as a single action. They both arose out

of the single employer/alter ego issue and their theories of recovery are virtually identical.6 Universal cites Coghlan v. Starkey, 852 F.2d 806 (5th Cir.1988) (per curiam), for the

proposition that in this Circuit little tolerance exists for unmerited appeals without articulable

support in law. In Coghlan, we found that since the appellant failed to argue any case law, made

hardly any attempt to distinguish precedent relied upon by the district court, and offered no

independent legal analysis different from that decisively rejected by the court, sanctions were

proper. 852 F.2d at 809. The appellant in this case and the strength of its contentions are readily

distinguishable from the appellant's bare bones contentions in Coghlan. In sum, we find that the cases were consolidated in all respects into one case presenting the

same issue as asserted by joint plaint iffs. Consequently, adhering to R ingwald 's teaching, we must

dismiss for lack of jurisdiction. The final judgment rule and the propriety of certification under Rule

54(b) exist in part to ensure that a single set of factual and legal questions come before the Court of

Appeals but once—and then only after all closely related issues have been resolved in the district

court. Pending in the district court is a summary judgment motion by Universal against the NASI

Funds on analogous grounds. An appeal by the Union at this time creates a substantial risk that the

issues would return on a later appeal by NASI Funds or Universal. We are given no guidance as to

whether the precise considerations which led to summary judgment against the Union will control the

summary judgment motion against the Funds. Yet the two cases are not at all separate. They

obviously involve closely related legal issues.

We find that a post-consolidation single judgment disposing of the parties and claims in one

of the originally separate suits, but not in the other, is governed by the provisions in Rule 54(b). Of

course, should it be desirable to appeal a judgment prior to the disposition of all claims, the parties

always have an avenue open to seek Rule 54(b) certification.

Finally we deny Universal's request for sanctions for a frivolous ap p eal. Given the

case-by-case analysis fostered under Ringw ald, this appeal was not frivolous. The issue was a serious

one open to valid contention. We find it improper to award double costs and attorneys' fees against

a party who appeals. 6

III. CONCLUSIONThe district court's summary judgment in favor of Universal resolved the claims invo lving only

one of the two plaint iffs in this consolidated suit. The summary judgment motion against the NASI

Funds remains pending, and the judgment was not certified under Rule 54(b). Because the district

court's order does not constitute a final judgment, we lack appellate jurisdiction to review it. We

grant Universal's motion to dismiss the appeal without prejudice for lack of appellate jurisdiction.

APPEAL DISMISSED WITHOUT PREJUDICE F OR LACK OF JURISDICTION.

SANCTIONS FOR FRIVOLOUS APPEAL DENIED.