### 09

-S277

-cv Novick v. AKA Network, LLC
1 

### UNITED STATES COURT OP APPEALS 2 

### POR THE SECOND CIRCUIT 3 4 

### August Term, 2010 5 

### (Argued: January 5, 

### 2011 Decided: June 13, 2011) 6 

### Docket No. 09

-S277-cv 7 

### B STEVEN S. NOVICK, 9 

### Plaintiff

-Counterclaim

-Defendant-Appellant, 10

- v. - 11 AXANETWORK, LLC, AXAADVISORS, LLC, 12 Defendants

-Counterclaimants-Appellees. 13 

### 14 Before: KEARSE, WINTER, and HALL, Circuit Judges. 15 

### Appeal from a partial final judgment of the United States 16 District Court for the Southern District of New York, Alvin K. 17 Hellerstein, Judge, granting, prior to the resolut.ion of any of 18 plaintiff's claims, summaryjudgment to defendants on one of their 19 

### counterclaims for repayment of money loaned to plaintiff. 20 Ped. R. Civ
. P. 54(b)
. 

### 21 Appeal dismissed for lack of appellate jurisdiction. 22 MICHAEL S. F1NKELSTEIN, Garden City, New York 23 (Finkelstein 

### &Feil, Garden City, New York, 24 on the brief); 

### for Plaintiff-Counterclaim

- 25 Defendant

-Appellant
. 26 MICHAEL A. KALISH, New York/ New York, (Howard 27 Schragin, Epstein, Becker 

### & Green, New 28 York, New York, on the brief), for 29 Defendants

-Counterclaimants-Appellees.1 KEARSE, Circuit Judge: 2 Plaintiff Steven S. Novick, who commenced the present 3 act.ion against defendants AXA Network, LLC ("AXA Network"), and 4 its sister company AXA Advisors, 

### LLC ("AXA Advisors", 5 (collectively "AXA"), asserting claims of breach of contract and 6 various business torts in connection with AJ<A's alleged w rongful 7 termination of Novick's employment affiliation with AXA, has 8 appealed from a partial final judgment of the United States 9 District Court for the Southern District of New Y ork, Alvin K. 10 Hellerstein, Judge, granting summary judgment in favor ofAXA on 11 one of its counterclaims against Novick for nonrepayment of the 12 outstanding balance of a loan for which he had given a promissory 13 note. The district court ruled that there were no genuine issues 14 of fact to be tried as to that counterclaim and, citing Fed. R. 15 eiv. P. 54(b), ordered that a partial final judgment be entered 16 immediately on that counterclaim, requiring Novick to pay AJf.A 17 $539,038.77 plus interest, cost.s, and expenses including 18 attorneys' fees. On appeal, Novick contends that (1) summary 19 judgment was inappropriate, arguing that the promissory note and 20 his affiliation agreements with AXA involved contractually 21 interdependent promises and that AY.A failed to fulfill its own 22 obligations, and (2) the court abused its discretion in denying 23 his request I pursuant to Fed. R. Civ. P. 62(h), that execution on 24 the partial final judgment be stayed pending resolution of his 2S 26 claims against AXA
. For the reasons discussed below, w e conclude that the district court's Rule 54(b) certification was

- 2

-

### 1 inappropriate, and we thus dismiss the appeal for lack of 2 appellate jurisdiction.

3 

### I
. BACKGROUND

4 

### The parties I 

### pleadings reveal the following agreements. 5 In November 2002, Novick, a stockbroker and insurance salesman 6 with a sizeable book of clients, entered into agreements with AKA 7 Advisors, a broker/dealer, and AXA Network, an insurance company, 8 pursuant towhichNovick became affiliatedwith those companies as 9 an independent contractor (the "Affiliation Agreements" or 10 

### "Agreements")
. The parties agreed, inter alia, that Novick, upon 11 

### terminating his affiliation with another company, would serve his 12 clients through AXA, and that AXA would compensate Novick 13 principally by paying him commissions based on the total AXA 14 

### revenues he generated. The parties also agreed that AXA would 15 give Novick. as a "Proven Producer," two early loans, one for 16 $500,000 andone for $1 million, to assist himwith theexpenseof 17 

### ending his prior business affiliation. In connection with these 18 loans, Novick executed promissory notes in favor of AXA Network, 19 one inJanuary 2003 for $500,000 (the IIJanuary LoanNote") and the 20 other in August 2003 for $1 million (the "August Loan Note" or 21 "Loan Note"). The latter is the promissory note that is the 22 subject of this appeal. 23 "The [August] Loan Note was secured by interests in 24 NovickI

### s commissions, compensation and other amounts payable to
31 him by AXA." (AXA Counterclaims**~** 22)
. The Loan Note provided 2 that, if Novick defaulted on his loan payment obligations, AXA 3 could "apply (directly orby the way of set
-off) to thepayment of 4 any amounts owing by (Novick] all commissions, compensation 5 of any kind and other am ounts in any form payable to (Novick] 6 under any of [Novick's] agreements with AXA." (August Loan Note 7 at 2.) Although October 1, 2008 was the date by which the loan 8 was scheduled to be repaid in full (see id. at 1), the Loan Note 9 also provided that "[i]f any of [Novick's] AXA Agreem ents or 10 [Novick's] affiliation with AXA is terminated for any reason, the 11 entire amount owed under this Note shall automatically become 12 immediately due and payable" (id. at 2 (the "acceleration 13 clause'I)
. 14 In October 2006, AXA terminated the AffiliationAgreements 15 with 

### Novick, stating that its action was based on Novick's 16 failure to comply with all the provisions or conditions of the 17 Agreements
. In November 2006 and again in June 2007, AXA la demanded payment of the unpaidprincipal amount of the August Loan 19 

### 20 21 22 23 24 Note, which was $450,000, plus all accrued interest.
no further payments. Novick made

Novick commenced the present action against AXA Netw ork in August 2007, adding AXA Advisors as a defendant in an amended complaint, asserting claims business torts, alleging for breach of that AXA had contract and various failed to pay him 25 commissions to which he was entitled and had terminated its 26 affiliation with him in retaliation for his "whistle blowing" to**~** 4**~**

### 1 AXA management 

### about sales

-practice violations allegedly 2 committed by another AXA broker
. (See Amended Complaint 11 9-10, 3 14-15.) Alleging that. "A:/.A's conduct has damaged Mr. Novick in an 4 amount 

### in excess of $460,491

.78"

--the amount demanded by AXA in 5 6 7 8 9 10 November 2006 (Amended Complaint' 35)--the first cause of action in Novick's amended complaint requested a declaratory judgment "adjudicatling] the rights and other legal relationships of the parties" (id
.**~** 33, 36) with regard to the Affiliation Agreements**~~** 27-33), 23

-26), and the August Loan the January Loan Note (see id. 

### \1Note (see id. 34-36)
. The 11 amended complaint also asserted causes of action for, inter alia, 12 

### unfair business practice and interference with Novick's 13 prospective business relationships, alleging that AXA, after 14 terminating the Affiliation Agreements, made false statements 15 about Novick in a regulatory filing and in communications with 16 Novick's clients, whom AXA solicited to sever their ties with 

### 17 18 Novick and become clients of other AXA agents. 

### 1 1 53

-70.) The amended complaint's prayer for relief included 19 requests for lIat least $10,000,000" in compensatory damages (id. 20 WHEREFORE 

## 1 (a)), and a "declar[ationJ that Plaintiff is relieved 21 22 23 24 of any financial obligation created [January Loan NoteI or the $1 million WHEREFORE 

### 1 1 (b))

. pursuant to either the [August ] Loan Note" (id
.
AXA filed an answer and asserted counterclaims with 25 respect to Novick's failures to pay theamounts due on the January 26 Loan Note and the August Loan Note, along with a third

- 5

-1 counterclaim alleging unjust enrichment. Following a period of 

### 2 discovery, AXA moved for partial summary judgment on its 3 counterclaimwith respect to the August Loan Note. It argued that 4 there were no genuine issues of fact to be tried as to, inter 5 alia, (a) AXA's making the $1 million loan, (b) N ovick's giving 

### 6 AXA the promissory note in that amount, (c) Novick's repayment of 7 only $550 I000 of that amount I leaving an outstanding principal B balance of $450,000, and (d) the terms of the promissory note 

### 9 making Novick's outstanding debt on that loan due immediately upon 10 termination of the Affiliation A greements "for any reason" and 11 

### making Novick liable for the expenses of collection. AJ<.A stated 

### 12 that as of the date of the motion, accrued interest amounted to 13 $89,038.77, making the total due $539,038.77. 14 Novick, without disputing his execution of theAugust Loan 15 Note, opposed the motion on the grounds, inter alia, (1) that one 16 of his claims is for breach of contract based on AXA's alleged 17 failure to compensatehim fully for his work under the Affiliation 18 Agreements, that that failure by AJ(A 

### unfairly prevented him from 19 making additional payments on the August Loan Note, and that the 20 amounts due him on that claim should constitute a setoff of the 21 amount he owed under the August Loan Note; and (2) that given his 22 claimthat AXA wrongfully terminated the AffiliationAgreements in 23 retaliation for Novick's havingblown the whistle on wrongdoing by 24 another AXA employee, AXA should not be allowed to invoke the 25 August LoanNote's acceleration clause.

- 6 -1 Novick argued that setoff should be allowed because his 2 promissory note and the promises in the Affiliation Agreements 3 were interdependent. In support of that argument, he submitted a 4 copy of an AXA interoffice email dated October 16, 2001 ("AXA 5 Internal Email" or "AKA Email"), describing the then-ongoing 6 negotiations for the Affiliation Agreements and the up-front loans 7 that Novick needed to cover the cost of bringing his clients' 8 business to AXA. As to what AXA was offering in order "to bring 9 him on board,II the AXA Email listed, inter alia, the proposed 10 $1 million loan to Novick--along with a $500,000 forgivable loan 11 that would be "paid up front and earned out based on his 12 production, like the normal proven producer bonus"

--stating that 13 "[tlhis would give him $1.5 million at signing." 14 Novick requested, if the court were to grant AXA's motion 15 and enter a partial final judgment on the August Loan Note 16 counterclaim, that the court stay enforcement of such a judgment 17 pursuant to Fed. R. eiv. P. 62(h) pending resolution of Novick's 18 claims, contending that his recovery on those claims would offset 19 part or all of any amounts due on AKA's August Loan Note 

### 20 counterclaim. Novick stated that if execution were allowed 21 immediately, it would cause him undue hardship, prejudice his 22 attempt to pursue his claims, and cripple him financially. 23 The district court, in an order dated August 27, 2009 24 (IIAugust 2009 Order"), granted AKA's motion for partial summary 25 judgment on the August Loan Note counterclaim. Applying New York 26 law, the court ruled, inter alia, that the counterclaim was

- 7

-1 

### separable from other claims because the agreements inquestion did 2 not involve interdependent promises. The court reasoned that the 3 

### Affiliation Agreements and the August Loan Note were "executed 4 

### separately," months apart, and it pointed out that while the 5 

### August Loan Note "expressly allows AXA 

### to withhold commissions 6 

### from (Novick] if (Novick) defaults on the note, it does not 7 correspondingly allow [Novick] to withhold payment on the note if 8 AXA 

### fails to pay commissions. Nor does the note excuse 9 

### [Novick] from payment if he was wrongfully terminated as well as 10 

### inadequately compensated. II ld
. 

### at 3
. 

### Finding no triable issues 11 

### of fact as to Novick's liability on the August Loan Note 12 

### counterclaim or the amounts of principal and interest due on that 13 

### note as of the date of AKA's 

### motion, the court ordered Novick to 14 

### payAXA 

### $539,038.77, plus additional interest, costs, and expenses 15 

### including attorneys I 

### fees. See id. at 3-4. 

### The court also 16 

### stated, citing Fed. R. 

### eiv. P. 54

### (b), that it saw "no reason to 17 

### stay entryof judgment against Plaintiff on the note, as it arises 18 

### from the breach of a separate obligation, and would not prejudice 19 

### Plaintiff's ability to pursue, and collect any judgment on, his 20 

### claims." August 2009 Order at 3. The court sub silentio denied 21 Novick's Rule 62{h) request that it stayAXA's executionon such a 22 judgment.

- 8

-1 II. DISCUSSION

2 On appeal, Novick contends principally that the district 

### 3 court erred in finding the promises made in the August Loan Note 4 and the Affiliation Agreements to be independent of one another 

### 5 and abused its discretion in not granting a stay of execution on 6 the judgment upholding AXA!5 counterclaim pending resolution of 7 Novick's claims. For the reasons that follow, we conclude that 8 the district court Is Rule 54(b) certification was inappropriate 9 and that entry of the partial final judgment was an abuse of 

### 10 discretion
. 11 In general, there is a '" historic federal policy against 12 

### piecemeal appeals.'" Curtiss

-Wright Corp. v. General Electric 13 Co., 446 U.S. 1, 8 (1980) 

### ("Curtiss

-Wright'" (quoting Sears! 14 Roebuck 

### & Co. v. Mackey, 351 U.S. 427, 438 (1956) ("Sears 15 Roebuck")
. Thus, in the federal district courts, the entry of a 16 final judgment is generally appropriate "only after all claims 17 have been adjudicated." Harriscom Svenska AB v. Harris Corp., 947 18 F.2d 627, 629 (2d Cir. 1991) ("Harriscom"). 19 As an exception to this general principle, Rule 54(b) 20 provides that

'21 [wlhen an action presents more than one claim for 22 relief--whether as a claim, counterclaim, crossclaim, 23 or third

-party claim--or when multiple parties are 24 involved, the court may direct entry of a final 25 judgment as to one or more, but fewer than all, 26 claims or parties only 

### if the court expressly 27 determines that there is nojust reason for delay.

- 9

-1 Fed. R. Civ. P. 54(b). The policy against piecemeal appeals 2 "requires that the court's power - to enter such a final judgment 3 

### before the entire case is concluded, thereby permitting an 4 

### aggrieved party to take an immediate appeal, he exercised 5 sparingly
. II Harriscom, 947 F.2d at 629. 6 The requirement that the district- court make an express 7 determination "that there is no just reason for delay, if Fed. R. 8 Civ. P. 54(b), means that the court must provide a "reasoned," 9 

### even if brief, "explanation" of its considerations, Harriscorn, 947 10 F.2d at 629, for 11lilt is essential 

### that a reviewing court 11 have some basis for distinguishing between well-reasoned 12 conclusions[,

### 1 arrived at after a comprehensive consideration of 13 all relevant factors, and mere boiler

-plate approval phrased in 14 appropriate languagebut unsupported by evaluation of the facts or 15 analysis of the law," Ansam Associates, Inc. v. Cola Petroleum, 16 Ltd., 760 F.2d 442, 445 (2d Cir. 1985) (internal quotation marks 17 omitted). A certification that is not appropriate is insufficient 18 to confer appellate jurisdiction.**See,~,** Harriscom, 947 F.2d 19 at 631; Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir
. 20 1978)
. 21 To be appropriate, a Rule 54(b) certification must take 22 account of both the policy against piecemeal appeals and the 23 equities between or among the parties. 24 Not all final judgments on individual claims should 25 be immediately appealable, even if they are in some 26 sense separable from the remaining unresolved 27 claims
. It is left to the sound judicial 28 discretion of the district court to determine the 29 "appropriate time" when each final decision in a

- 101 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 

### multiple claims action is ready for appeal. This discretion is to be exercised IIin the interest of soundjudicial administration." 

### Thus. in deciding whether there are no just reasons to delay the aopeal of individual final judgments
. a district court must take into account judicial administrative interests as well as the equities involved. Consideration of the former is necessary to assure that application of the Rule effectively "preserves the historic federal policy aqainst 

### piecemeal appeals." It [ils 

### therefore proper for the District Judge to consider such factors as whether the claims under review [a]re separable from the others remaining to 

### be adjudicated and whether the nature of the claims already determined [ils such that no appellate court would have to decide the same issues more than once even if therewere subsequent appeals. 19 Curtiss-Wright, 446 U.S. at 8 (quoting Sears Roebuck, 351 U.S. at 20 435, 437I 

### 438 (emphases ours». 21 

### Accordingly, in the analysis of whether a Rule 54(b) 22 certification was appropriate, 23 the standard against which a district court's 24 exercise of discretion is to be judged is the 25 "interest of soundjudicial administration." 26 Admittedly this presents issues not always easily 27 resolved, but theproperrole of the court of appeals 28 is not to reweigh the equities or reassess the facts 29 but to make sure that the conclusions derived from 30 those weighings and assessments arejuridicallysound 31 and supportedbythe record. 32 There are thus two aspects to the proper 33 function of a reviewing court in Rule 54(b) cases. 34 The court of appeals must, of course, scrutinize the 35 district court's evaluation of such factors as the 36 interrelationship of the claims so as to prevent 37 piecemeal appeals in cases which should be reviewed 38 only as single units. But once such juridical 39 concernshave beenmet, thediscretionaryjudgment of 40 the district court should be given substantial 41 deference, for that court is "the one most likely to 42 be familiar with the case and with any justifiable 43 reasons for delay." The reviewing court 44 should disturb the trial court's assessment of the

- 11

-1 2 

### equities only conclusion was 

### if it clearly 

### can say that unreasonable
. the judge's 

### 3 Curtiss-Wright, 446 U.S. at 10 (quoting Sears Roebuck, 351 U.S. at 4 437 (emphases ours))i see also Pahlavi v. Palandjian, 744 F
.2d 5 902, 905 n.S (1st Cir. 1984) ("It is only after th[e] first 6 [Curtiss-Wright] test is met that the appeals court should go on 7 to review the trial court's assessment of the equities, giving 8 substantial deference to the trial court's discretion.II)

. 9 In applying these principles, we have repeatedly noted 10 that the district court generally should not grant a Rule 54(b) 11 certification I " if the same or closely related issues remain to 12 be litigated. I II Harriscom, 947 F.2d at 629 (quoting National 13 Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir. 198B) 14 (other internal quotation marks omitted})
. "It does not normally 15 advance the interests of sound judicial administration or 16 efficiency to have piecemeal appeals that require two (or more) 17 three-judge panels to familiarize themselves with a given case" in 18 successive appeals from successive decisions on interrelated 19 issues. Harriscom, 947 F
.2d at 631
. 20 In the present case, the district court's Rule 54(b) 21 certification stated as follows: 22 T find no reason to stay entry of judgment against 23 Plaintiff on the note, as it arises from the breach 24 of a separate obligation, and would not prejudice 25 Plaintiff's ability to pursue, and collect any 26 judgment on, his claims
. See Fed. R. Civ. P
. 54(b). 

### 27 August 2009 Order at 3 (emphasis added) Our difficulty with this 28 certification is that our review of the ruling that Novick's 29 liability on the August Loan Note "arises from the breach of a

- 12

-1 separate obligation" w ould require consideration not only of the 2 note agreement itself but also of the Affiliation Agreements and 3 of Novick's arguments that AXA has breached those Agreements and 4 an implied covenant of good faith and fair dealing. 5 In general, 01,when two parties have made two separate 6 contracts it is more likely that promises made in one are not 7 conditional on performances required by the other. '" Rudman v. 8 Cowles Communications, Inc., 30 N.Y.2d I, 13, 330 N.Y.S.2d 33, 42 9 (1972) ("Rudman") (quoting 3A Corbin, Contracts § 696, at 290 10 (1960 ed.I). But "[t]he issue of the dependency of separate 11 contracts boils down to the intent of the parties." 12 National Union Fire Insurance Company of Pittsburgh, Pa. v. 13 Turtur, 892 F.2d 199, 205 (2d Cir. 1989) ("Turtur"); see,**~,** 14 Rudman, 30 N.Y.2d at 13, 330 N.Y.S.2d at 42; Rosenthal Paper Co. 15 v. National Folding Box & Paper Co., 226 N.Y. 313, 320 (1919) 16 (liRosenthal U ). 17 Whether the parties intended to treat both 18 agreements as mutuallv dependent contracts, the 19 breach of one undoing the obligations under the 20 other, is a question of fact. In determining 21 whether contracts are separable or entire, the 22 primary standard is the intent manifested, viewed 23 in the surrounding circumstances
. 24 Rudman, 30 N
.Y.2d at 13, 330 N.Y.S.2d at 42 (emphases added); see 25 also Turtur, 892 F.2d at 205 ("Questions of intent, we note, are 26 usually inappropriate for disposition on summaryjudgment."). 27 As to ",whether the parties assented to all the promises 28 as a single whole,'" the test is whether '" there would 

### have been 29 no bargain whatever, if any promise or set of promises were struck**~** 13**~**1 out,'" Lowell v. Twin Disc, Inc., 527 F
.2d 767, 770 (2d Cir. 2 1975) ("Lowell") (quoting 6 Williston on Contracts § 863, at 275 3 (3d ed
. W. Jaeger 1962)). The test as to the parties' intent must 4 be applied with a measure of common sense: 5 By a long series of decisions, the rule has been 6 established that the question whether covenants are 7 to be held dependent or independent of each other is 8 to be determined by the intention and meaning of the 

### 9 parties, as expressed by them, and by the application 10 of common sense to each case submitted for 11 adjudication. 12 Rosenthal, 226 N.Y. at 320
. 13 When the promises of the parties are concurrent 14 and dependent, either party defaulting inperformance 15 cannot, in the course of performance, sustain an 16 action against the other because he has also 17 defaulted. 18 Id. at 322. 19 Furthermore, each contract contains an implicit 20 understanding that neither party wlll intentionally 21 do anything to prevent the other party from carryinQ 22 out his part of the agreement. Persons invoking the 23 aid of contracts are under implied obligation to 24 exercise good faith not to frustrate the contracts 25 into which they have entered. It is likewise 26 implied in every contract that there is a duty of 27 cooperation on the part of both parties. Thus. 28 whenever the cooperation of the promisee is necessary 29 for the performance of the promise, there is a 30 condition implied that the cooperation will be given. 31 Lowell, 527 F.2d at 770 (internal quotation marks omitted) (first 32 emphasis added; second emphasis in original); see also id
. ("It 33 is a fundamental principle of law that in every contract there 34 exists an implied covenant of good faith and fair dealing.") 35 Given these principles, we cannot conclude that the 36 district court properly took account of the interests of sound 37 judicial administration and efficiency in determining that a

- 14

-

### 1 partial final judgment, permitting an immediate appeal, was 2 3 4 5 6 7 8 9 10 11 12 

### approprl.ate. Without resolving the question of whether the court
was correct 

### in its conclusion that Novick's promise to repay the $1 million loan and AXA'5 promises in the Affiliation Agreements
are independent, we think it clear that that conclusion cannot be
reviewed properly without consideration of the parties' intent in entering into the Affiliation Agreements and the circumstances 

### surrounding those Agreements, for the 

### independence or interdependence of promises cannot be determined by examining one promise in isolation. The district court's observation that the $1 million loan
was made months after the AffiliationAgreements were entered into 13 does not avoid the need to consider on appeal the circumstances 14 surrounding theAffiliationAgreements. Without expressing a view 15 on the merits of summary judgment, we note, for example, that 16 Novick argues that that loan had been promised to him to induce 17 him to enter into the Affiliation Agreements, or in the words of 18 the AXA Internal Email. "to bring him on board. It Novick asserts 19 that he needed the $1 million loan in order to, inter alia, repay 20 an outstanding loan from the firm he would leave to joinAXA, and 21 the AXA Internal Email on the negotiations for the Affiliation 22 Agreements described AXA executives I calculation of "how much of 23 an up-front loan we could give [Novick] /I (emphasis added) to 24 "satisfy his needs." The AXA Email stated that AXA was offering 25 Novick the $1 million loan plus the forgivable $500,000 loan, and 26 that "[t]his would give him $1.5 million at signing." Thus, the

- 15

-1 A'XA Email may indicate that the $1 million loan was integral to '2 the Affiliation A.greements despite the interval between the 3 signing of the Affiliation Agreements and the giving of the 4 promissory note on the loan. S The AXA Email 

### may also indicate that AXA's promises with 6 regard to Novick's compensation were integral to his signing the 7 promissory note. The email described the $1 million loan as 8 essentially "an advanced commission since we are lowering his 9 payout," stating the expectation that Novick should be able to, 10 inter alia, repay the $1 million loan in about three years out of 11 the commissions he was expected to earn. Thus, the absoluteness 12 of Novick's promise to repay the $1 million loan cannot be 13 determined without consideration of AKA's promises with regard to 14 Novick's compensation. 15 Further, the fact that the August Loan Note expressly 16 allowed A1<A to withhold earned commissions from Novick if he 17 failed to make payments on the note may be an indication that 18 Novick's promissory note and AXA's obligations under the 19 Affiliation Agreements were not meant to be entirely independent. 20 The fact that the note contains no provision expressly allowing 21 Novick to withholdpayments on the promissory note ifAXAwithheld 22 his commissions, does not eliminate the possibility that Novick 23 may ultimately be found justified in withholding payment on the 24 note if**AXA-~ hich**  had anticipated that Novick w ould earn 25 commissions sufficient to pay the $1 million**loan is**  found to 26 have breached the implied covenant of good faith and fair dealing



### - 16

-1 by, as claimed by Novick, demanding immediate repayment of the '2 loan after breaching the Affiliation Agreements, by, inter alia, 3 improperly withholding commissions due him and soliciting his <1 clients to leave him, thereby disabling 

### him from repaying the 5 loan. 6 7 8 9 We think it plain from this record that an assessment of the correctness of the district court's ruling that the August Loan Note was independent of Affiliation Agreements will the promises made by AXA in involve consideration of the the AXA 10 promises underlying Novick's claims for breach of contract and 11 wrongful termination and of the relationships among those 12 promises. Thus, on the present appeal, this Court would be 13 required to consider many of the same issues that will need to be 14 considered in any appeal from a final judgment adjudicating 15 Novick's claims. Accordingly, w e conclude that the district 16 court's Rule 54(b) certification of the judgment on the August 17 Loap Note for immediate appeal is contrary to the interests of 18 sound judicial administration and efficiency and thus constituted 19 an abuse of discretion. Its certification was therefore 20 insufficient,to confer appellatejurisdiction. 21 Finally, in light of the policy against piecemeal appeals, 22 it is incumbent upon a party seeking immediate relief in the form 23 of a Rule 54(b) judgment to show not only that the issues are 24 sufficiently separable to avoid judicial inefficiency but also 25 that the equities favor entry of such a judgment. Although not 26 essential to our ruling that the present appeal must be dismissed,



### - 17

-

### 1 we note that despite Novick's claim that AKA is withholding 2 commissions owed to him and despite his repeated requests for an 3 accounting, AXA does not, appear to have represented to the 4 district court, in either affidavit or documentary form, that it 5 is not withholding any such commissions. In the absence of such 6 evidence, it is difficult to see that the equities favored 7 all-owing AXA to immediately execute upon the judgment on its B counterclaim.

9 CONCLUSION

10 

### We have considered AKA's arguments in support of the 11 district court's Rule 54(b) certification and have found them to 12 bewithout merit. Forthereasonsdiscussed above
. theentryof a 13 partial final judgment on AXA's counterclaim constituted an abuse 14 of discretion, and the order granting summary judgment on that 15 counterclaimshould remain interlocutory. The appeal isdismissed 16 for lackof appellatejurisdiction. 17 No costs.

- 18

-