IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

OREGON SHAKESPEARE 

FESTIVAL ASSOCIATION, 

Plaintiff, 

v. 

MEDFORD DIVISION 

GREAT AMERICAN INSURANCE 

COMPANY, 

Defendant. 

CLARKE, Magistrate Judge 

Case No. 1 :15-cv-01932-CL 

ORDER 

On June 7, 2016 the Court entered an Order (#33) granting Plaintiff OSF's motion for 

partial summary judgment (#17) and granting in part and denying in part Defendant GAIC's 

motion for summary judgment (#25). Defendant now moves the Court for entry of judgment on 

Plaintiffs fourth claim for declaratory relief. Plaintiff opposes the motion. For the reasons 

below, the motion (#34) is DENIED. 

LEGAL STANDARD 

Federal Rule of Civil Procedure 54(b) allows for entry of judgment as to a claim, even 

when other claims in the case remain unresolved, "only if the court expressly determines that 

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there is no just reason for delay." 1 A district court's determination under Rule 54(b) is a twostep process. Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980). First, the court must 

determine that it is dealing with a "final judgment." Id. "It must be a 'judgment' in the sense 

that it is a decision upon a cognizable claim for relief, and it 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."' 

Id. (quoting Sears, Roebuck& Co. v. Mackey, 351U.S.427 (1956)). 

Once having found finality, the district court must go on to determine whether there is 

any just reason for delay. Id. at 8. "It is left to the sound judicial discretion of the district court to 

determine the 'appropriate time' when each final decision in a multiple claims action is ready for 

appeal." Id. A district court must take into account judicial administrative interests as well as 

the equities involved, including such factors as whether the claims under review are separable 

from the others remaining to be adjudicated and whether the nature of the claims already 

determined was such that no appellate court would have to decide the same issues more than 

once even if there were subsequent appeals. Id. 

In general, the granting of a motion under Rule 54(b) is disfavored by the courts. Rather 

than being common practice, it "must be reserved for the unusual case in which the costs and 

risks of multiplying the number of proceedings and of overcrowding the appellate docket are 

outbalanced by pressing needs of the litigants." Morrison-Knudsen v. Archer, 655 F.2d 962, 965 

(9th Cir.1981 ). It is true that "Rule 54(b) certification is proper if it will aid in 'expeditious 

decision' of the case." Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 797 (9th Cir.1991). But granting 

1 "When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or thirdparty claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, 

but fewer than all, claims or parties only ifthe court expressly determines that there is no just reason for delay. 

Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights 

and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be 

revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and 

liabilities." Fed. R. Civ. Pro. 54(b ). 

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a Rule 54(b) motion is not routine, nor should it become so. Wood, 422 F.3d at 879. Therefore, 

the burden lies on the party moving for certification to show that their case's circumstances are 

unusual enough to merit departure from the court's general presumption against Rule 54(b). US. 

Fire Ins. Co. v. Williamsburg Nat'! Ins. Co., No. 1:07-CV-00718, 2009 WL 650578, *2 

(E.D.Cal. Mar. 12, 2009) (citing Braswell Shipyards, Inc. v. Beazer E., Inc. 2 F.3d 1331, 1335 

(4th Cir.1993)). 

DISCUSSION 

I. The Order on Partial Summary Judgment did not resolve a separable claim; 

therefore the Court is not dealing with a "final judgment." 

In determining whether to grant a Rule 54(b) motion, the court must look at whether the 

claim at issue "is sufficiently divisible from the other claims such that the 'case would [not] 

inevitably come back to this court on the same set of facts."' Jewel v. Nat'! Sec. Agency, 810 

F.3d 622, 628 (9th Cir. 2015) citing Wood, 422 F.3d at 879. The Ninth Circuit Court of Appeals 

will "particularly scrutinize a [district court's decision to grant a 54(b) motion] to 'prevent 

piecemeal appeals in cases which should be reviewed only as single units."' Wood, 422 F.3d at 

879 (quoting Mcintyre v. United States, 789 F.2d 1408, 1410 (9th Cir.1986)). 

This is not a complicated case. The Court's order (#33) on the parties' summary 

judgment motions resolved the issue of coverage under the policy. However, while the court 

agrees that the order fully resolved the claim for declaratory relief, it did not fully resolve a 

nearly identical claim for breach of contract because the issue of damages has yet to be 

addressed.2 Other than the question of damages, the two claims arise out of the exact same set of 

facts and the exact same legal question. 

2 There is also left unresolved a separable but related claim that will likely move towards trial regardless of the 

outcome of an appeal on the coverage issue. The claim for breach of the covenant for good faith and fair dealing 

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The Supreme Court has addressed a similar scenario, noting that an order establishing 

liability, even if considered a declaratory judgment, was not final where the trial court had not 

ruled on the injunction and damages that had been requested. Liberty Mutual Insurance Co. v. 

Wetzel, 424 U.S. 737, 742 (1976). Similarly, the Ninth Circuit reversed a 54(b) certification 

where, even though the remaining claims were distinct, the factual bases for both legal theories 

were identical, and it was clear that the case would "inevitably come back to the court on the 

same set of facts." Wood, 422 F.3d at 879. 

While Defendant GAIC points to the practical unlikelihood of a second appeal on the 

same issue, the interrelationship of the two claims is undeniable. Defendant itself fully admitted 

the two claims were virtually the same for purposes of the court's order on summary judgment. 

Moreover, the parties have indicated that the damages claimed by Plaintiff on the breach of 

contract are heavily disputed, which makes a second appeal much more likely. Therefore, 

because the two claims are factually identical, and the case could ultimately go back to the Ninth 

Circuit on the same set of underlying facts, the claims are not separable for purposes of a final 

judgment. 

II. There is just reason for delay of final judgment. 

The Court has already determined that the lack of factual and legal separability is 

sufficient to deny the Rule 54(b) motion. However, even if there were finality as to the claim, 

the Court finds that there is just reason for delay of final judgment. As noted earlier, Rule 54(b) 

judgment should be avoided unless the pressing needs of the litigants outweigh the potential for 

multiple, duplicate appeals. Birkes v. Tillamook Cty., No. 3:09-CV-1084-AC, 2012 WL 

2178964, at *3 (D. Or. June 13, 2012) (citing Morrison Knudsen, 655 F.2d at 965). 

rests on different facts and a distinct legal determination, but ultimately it arises out of the same contract agreement 

between the parties. 

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Defendant argues that entry of judgment would serve judicial efficiency because an 

appellate ruling on coverage could narrow the issues for trial and prevent lengthy litigation on a 

potentially moot point. The Court does not find this argument persuasive. First, the argument 

presupposes the outcome on appeal as favorable to the Defendant. By contrast, ifthe Ninth 

Circuit affirms the Court's decision on coverage, the case will have been significantly delayed 

without any benefit to either party, and ultimately the same issue, or at least the same underlying 

facts, could be appealed for a second time once damages are determined on the breach of 

contract claim. This is the opposite of judicial efficiency. 

Second, the Court agrees that, should Defendant prevail on appeal, the issues in this case 

would be considerably streamlined. However, the idea that an immediate appeal of an 

unfavorable coverage decision will streamline issues for trial is an argument that every defendant 

could make in any garden variety insurance coverage case, or even in any type of civil case after 

an unfavorable determination ofliability, prior to a trial on damages. Defendant GAIC fails to 

show how this case's circumstances "are unusual enough to merit departure from the court's 

general presumption against Rule 54(b)." Birkes, 2012 WL 2178964, at *1 (citing US. Fire Ins. 

Co. v. Williamsburg Nat'l Ins. Co., 2009 WL 650578, *2 (E.D.Cal. Mar. 12, 2009). 

Defendant claims that the coverage determination is "novel" and "unprecedented" and 

"has drawn attention from insurance companies nationally concerned about the ramifications of 

the Court's holding." The Court agrees that this issue is unique, and deserves to be addressed 

with certainty at the Court of Appeals. However, the interests of the parties, as well as the 

interests of insurance companies and their insureds nationally, will not be served by prematurely 

certifying a claim for appeal before the claim is final. In fact, those exact interests will be 

prejudiced by a lengthy appeals process that could well result in a simple rejection of 

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certification and remand for determination of damages. The quickest and most efficient way to 

ensure a proper appeal of this case is to get the issues to trial in an expedited fashion, so that 

judgment can be entered on the case as a whole. 

ORDER 

For the forgoing reasons, Defendant's motion for entry of judgment (#34) is DENIED. 

The Court will order a telephonic scheduling conference to set dates for discovery and trial as 

expeditiously as possible. 

It is so ORDERED and DATED this --~-6. 

f' MARK D. CLARKE 

United States Magistrate Judge 

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