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 , 

1 0 - v. -

11 AXA NETWORK, LLC, AXA ADVISORS, 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, summary j udgment to defendants on one of their 

19 countercl aims for repayment of money loaned to plaintiff. 

20 Ped. R. Civ . P. 54(b) . 

21 Appeal dismissed for l ack o f appe llate j urisdiction. 

22 MICHAEL S. F1NKELSTEIN, Garden City, New York 

23 (F i nkelstein & Feil, Garden City, New York, 

24 on the brief); for Plaintiff-Counterclaim- 2 5 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 s i ster 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 wrongful 

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 York, 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, we conclude 

that the district court's Rule 54(b) ce rtification was 

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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 I n 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 to which Novick became affiliated with t hose 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 and one for $1 million, to assist him with the expense of 

17 ending his prior business affiliation. In connection with these 

18 loans, Novick executed promissory notes in favor of AXA Network, 

19 one in January 2003 for $500,000 (the IIJanuary Loan Note") 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 i n 

24 Novick I s commissions, compensation and other amounts payable to 

3 
1 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 or by the way of set - off) to the payment of 

4 any amounts owing by (Novick] all commissions, compensation 

5 of any kind and other a mounts 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 Agreeme nts or 

10 [Novick's] affil iation with AXA is terminated for any reason, the 

11 entire amount o wed under this Note shall automatically become 

12 immediately due and payable" (id. at 2 (the "acceleration 

13 clause'I) . 

14 I n October 2006 , AXA terminated the Affiliation Agreements 

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 . I n Nov ember 2006 and again in June 2007, AXA 

la demanded payment of the unpaid principal amount of the August Loan 

1 9 

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 Net work in 

August 2007, adding AXA Advisors as a defendant in an amended 

complaint, asserting claims 

business torts, alleging 

for breach o f 

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 conduc t has damaged Mr. Novick in an 

4 amount in excess of $460,491 . 78" --the amount demanded by AXA i n 

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 

"adjudicat ling] 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. \1 

Note (see id. 

34-36) . The 

11 amended complaint also asserted causes of action for , inter alia, 

12 unfair business practice and interference with Nov ick'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 sol icited to sever their ties with 

1 7 

18 

Novick and become clients of other AXA agents. 

11 53 - 70.) The amended complaint's prayer for relief incl uded 

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 11 (b)) . 

pursuant to either the 

[Augus t ] Loan Note" ( id . 

AXA f i led an answer and asserted counterclaims with 

25 respect to Novick's failures to pay the amounts due on the January 

26 Loan Note and the August Loan Note, along with a third 

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1 counterclaim alleging unjust enrichment. Fo llowi ng a period of 

2 discovery, AXA moved for partial summary judgment on its 

3 counterclaim with 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) Novick's giving 

6 AXA the promissory note in that amount, (c) Novick's repayment of 

7 only $550 I 000 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 o f the Affiliation Agreements "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 the August 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 compensate him 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 claim that AXA wrongfully terminated the Affiliation Agreements in 

23 retaliation for Novick's having blown the whistle on wrongdoing by 

24 another AXA employee, AXA should not be allowed to invoke the 

25 August Loan Note's accelerati on clause. 

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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 " [tl his 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 

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1 separable from other claims because the agreements in question 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 [Novi c k] 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 pay AXA $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 entry of 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 stay AXA's execution on such a 

22 judgment. 

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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 I s 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 adj udicated. " 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 [wl hen 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 no just reason for delay. 

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1 Fed. R. Civ. P. 54(b). The policy against piec emeal 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 11 lilt is essential that a reviewing court 

11 have some basis for distinguishing between well-reasoned 

12 concl us ions [, 1 arrived at after a comprehensive consideration of 

13 all relevant factors, and mere boiler- plate approval phrased in 

1 4 appropriate language but unsupported by evaluation of the facts or 

1 5 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 

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multiple claims action is ready for appeal. 

This discretion is to be exercised II in the interest 

of sound judicial administration. " 

Thus. in dec iding whether there are no just 

r easons to delay the aopeal of individual final 

j udgments . 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 [il s 

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 there were subsequent appeals. 

19 Curtiss-Wright, 446 U.S. at 8 (quoting Sears Roebuck, 351 U.S. at 

20 435, 437 I 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 o f sound judicial administration." 

26 Admittedly this presents issues not always easily 

27 resolved, but the proper role 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 are juridically sound 

31 and supported by the 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 fac tors 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 concerns have been met, the discretionary judgment 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 cou rt's assessment of the 

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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 Harr iscom, 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 thr ee-judge panels to familiarize themselves with a given case " in 

18 successive appeals from successiv e decisions on interrelated 

19 issues. Harriscom, 947 F . 2d at 631 . 

20 In the p r esent 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 oblig ation, and would not p r ej udice 

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 difficul ty 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 

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1 separate obligation" would require consideration not only of the 

2 note ag reement 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. 198 9) ("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 mutuall v 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 summary judgment."). 

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 dependen t 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 in performance 

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 impl ici t 

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 invoki ng 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 perfor mance 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 i n determi ning that a 

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1 partial final judgment, permitting an immediate appeal, was 

2 

3 

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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 

revi ewed 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 Affiliation Agreements were entered into 

13 does not avoid the need to consider on appeal the circumstances 

14 surrounding the Affiliation Agreements. 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 join AXA, 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 

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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 promise s 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 advan ced 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 consi deration of AKA ' s promises with regard to 

14 Novick's compensation. 

1 5 Further, the fact that the August Loan Note expressly 

16 allowed A1<A to withhold earned commissions from Novick i f 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 withhold payments on the promissory note ifAXA withheld 

22 his commi ssions, does not eliminate the possibility that Novick 

23 may ultimately be found justified in withholding payment on the 

24 note if AXA-~ hich had antici pated that Novick would earn 

2 5 commissions sufficient to pay the $1 million loan is found to 

26 have breached the impl i ed c ovenant of good f aith and fair dealing 

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1 by, as claimed by Novick, deman ding immediate repayment of the 

'2 loan after breaching the Affiliation Agreements, by, inter alia, 

3 i mproperly withholding commissions due him and soliciti ng his 

<1 cl i ents to leave him, thereby disabl i ng him from repaying the 

5 loan. 

6 

7 

8 

9 

We think it plain f rom 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 termi nation 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 , we 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 j udicial administration and efficiency and thus constituted 

19 an abuse of discretion. I ts certification was therefore 

20 insufficient, to confer appellate jurisdiction. 

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 i ssues are 

24 sufficiently separable to avoid judi c ial ineffici ency but a l so 

25 that the equities favor entry of such a judgment. Although not 

26 essential to our ruling that the present appeal must be dismissed, 

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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 be without merit. For the reasons discussed above . the entry of a 

13 partial final judgment on AXA's counterclaim constituted an abuse 

14 of discretion, and t he order granting summary judgment on that 

15 counterclaim should remain interlocutory. The appeal is dismissed 

16 for lack of appellate jurisdiction. 

17 No costs. 

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