IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Senior Judge Wiley Y. Daniel

Civil Action No. 11-cv-02233-WYD-MJW

CBS OUTDOOR, INC., a Delaware Corporation,

Plaintiff,

v.

800 LINCOLN LLC, a Colorado Limited Liability Company,

Defendant.

ORDER

THIS MATTER is before the Court on Defendant’s Motion for Certification of

Final Judgment Pursuant to F.R.C.P. 54(b) and for Stay filed November 8, 2012. 

Plaintiff filed a response in opposition to the motion on November 30, 2012, and a reply

was filed on December 14, 2012. 

Defendant asserts in its motion that the Order on Summary Judgment Motions

filed September 24, 2012, constitutes a final order and that there is no just reason to

delay its entry as a final judgment. For the reasons stated below, Defendant’s Motion

for Certification of Final Judgment Pursuant to F.R.C.P. 54(b) and for Stay is denied.

Rule 54(b) of the Federal Rules of Civil Procedure provides in relevant part:

When more than one claim for relief is presented in an action, whether as

a claim, counterclaim, cross-claim, or third-party claim, or when multiple

parties are involved, the court may direct the entry of a final judgment as

to one or more but fewer than all of the claims or parties only upon an

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

express direction for the entry of judgment.

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The Tenth Circuit has made clear that “‘Rule 54(b) entries are not to be made routinely 

. . . .’” Okla. Turnpike Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) (quotation

omitted).

Thus, certification under Rule 54(b) “is appropriate only when the district court

‘adheres strictly to the rule's requirement that a court make two express

determinations.’” Stockman’s Water Co., LLC v. Vaca Partners, L.P., 425 F.3d 1263,

1265 (10th Cir. 2005) (quotation omitted). “First, the district court must determine that

its judgment is final.” Id. (citing Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7

(1980)). “Second, the district court must determine that no just reason for delay of entry

of its judgment exists.” Id. (citing Curtiss-Wright, 446 U.S. at 8).

In the case at hand, Plaintiff asserts claims for declaratory judgment, breach of

contract and breach of the duty of good faith and fair dealing. Plaintiff’s first claim for

relief is for a declaratory judgment that (a) Plaintiff “is the legal owner” of an outdoor

advertising sign (“the Sign”), “which consists of the entire metal structure or framework

above the Roofline of the Building” (“the ownership issue”) and (b) Plaintiff “could

remove the Sign and its framework from the building (“the removal issue”). (Compl.

¶ 62.) Plaintiff’s second claim, also for declaratory relief, seeks a declaration that

“regardless of what entity is determined to be the ownership of the existing Sign, no

party, other than [Plaintiff], can maintain or operate any off-site commercial advertising

on the Building until January 2, 2016” (“the advertising issue”). (Compl. ¶ 67.) The third

and fourth claims are for breach of contract and breach of good faith and fair dealing

claims (the “contract claims”), and are based upon Defendant’s termination of a Lease

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related to the Sign. Defendant’s counterclaim for declaratory judgment requests a

declaration that it is the owner of the framework of the Sign and the advertising rights

related thereto. (Counterclaim ¶ 42.) 

The Order on Summary Judgment did not dispose of all claims. While it resolved

the portion of Plaintiff’s declaratory judgment claims relating to ownership and

advertising as well as Defendant’s declaratory judgment counterclaim, Plaintiff’s

declaratory judgment claim was resolved only partially as to the issue of removal of the

Sign. Specifically, I found in that Order “that in executing the Lease, whatever legal

rights either of the parties might otherwise have had regarding the Sign and/or its

Framework or however the Sign might otherwise be characterized (an improvement,

appurtenance, trade fixture, etc.), the parties unambiguously agreed that the Sign and

its Framework was and would remain the property of CBS and was subject to removal

by it.” (Order on Summ. J. Mots. at 26.) Thus, while I found that Plaintiff was entitled to

remove the Sign as its owner, I found that there were genuine issues of material fact as

to whether the Framework of the Sign could be removed by Plaintiff without material

damage to the building. (Id. at 27.) Accordingly, the removal issue was not fully

resolved. Plaintiff’s claims for breach of contract and breach of duty of good faith and

fair dealing also remain pending, and were not the subject of the summary judgment

motions. Thus, I must determine whether the requirements of Rule 54(b) are met for

certification.

“To be considered ‘final,’ an order 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.’” 

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Okla. Turnpike Auth., 259 F.3d at 1242 (quotation omitted). “While the exact definition

of ‘claim’ for purposes of Rule 54(b) is unsettled, . . .a ‘claim’ is generally understood to

include all factually or legally connected elements of a case.” Id. “Thus, a judgment is

not final for the purposes of Rule 54(b) unless the claims resolved are distinct and

separable from the claims left unresolved.” Id. “In determining whether claims are

separable, courts should ‘consider whether the allegedly separate claims turn on the

same factual questions, whether they involve common legal issues, and whether

separate recovery is possible.’” Inola Drug, Inc. v. Express Scripts, Inc., 390 F. App’x

774 (10th Cir. 2010) (quoting Jordan v. Pugh, 425 F.3d 820, 827 (10th Cir. 2005)).

In the case at hand, Defendant argues that the remaining declaratory judgment

claim relating to removal and the contract claims are distinct and separable from the

claims resolved in the summary judgment order because they are predicated upon

independent factual bases. According to Defendant, the removal claim involves

whether the Framework can be removed without causing material injury to the building,

and the contract claims involve the propriety of Defendant’s termination of the Lease.

I disagree and find that the summary judgment order was not final for purposes

of Rule 54(b). I agree with Plaintiff that the ownership issue of the Sign that has been

resolved is integrally related to the removal issue that remains. Both the ownership and

removal issue were asserted in a single claim for relief seeking a declaration that

Plaintiff owns the Sign and, as the owner, is entitled to remove the Sign. The ownership

and removal issues also turn on the same provision of the parties’ lease; thus, they

involve a common legal issue and are not separable. Indeed, I found in favor of Plaintiff

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on both the removal and ownership issue based on the language of the lease. The only

issue remaining on the removal issue relates to factual issues regarding whether the

Sign can be removed without material damage. I also note that Defendant’s argument

on ownership in its summary judgment briefing was based in large part on issues of

removability and mobility.

Defendant apparently would have two appellate panels (one focusing solely on

ownership and one solely on removal) interpreting the same provisions of the Lease

and the impact of that contractual language on common law doctrines raised by it. Both

appeals would also require that the appellate panels become familiar with the same

factual details of the structure of the Sign and the Building. This shows the

interrelatedness of the claims, and also shows that certification would promote

piecemeal appeals. See, e.g., McAdams v. McCord, 533 F.3d 924, 929 (8th Cir. 2008)

(rejecting Rule 54(b) certification that would result in piecemeal appeals arising out of

the same factual allegations and would require a future court to “refamiliarize itself with

this same complex set of facts”); see also Stewart v. Gates, 277 F.R.D. 33, 37 (D.D.C.

2011) (denying certification of claims that involved the same “nucleus of facts” for the

remaining claims). 

I also find that the second element required for certification is not met. 

Defendant has not shown that there is no just reason for delay of entry of judgment. 

Indeed, as discussed in the previous paragraph, a second appeal of the removal issue

would require the court of appeals to revisit the same issues decided in the first appeal. 

Certification is not appropriate under those circumstances. See Jordan, 425 F.3d at

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827. Indeed, in making a certification determination under Rule 54(b) I must take into

account “judicial administrative interests as well as the equities involved.” CurtissWright Corp., 446 U.S. at 7. 

I also note on the judicial efficiency issue that I disagree with Defendant’s

argument that if it were determined the owner of the Framework of the Sign on appeal,

Plaintiff’s contract claims would be rendered moot. Even if Defendant was declared the

owner of the Sign, Plaintiff’s claims that it suffered damages by Defendant’s wrongful

termination of the Lease and prevention of the collection of advertising revenues

through the term of the Lease would still be viable. Finally, I find on the judicial

efficiency issue that certification of the removal issue is not appropriate as the only

remaining issue regarding removal should be able to be resolved promptly as there is

only a small portion of the Sign that remains in dispute.

Based upon the foregoing, it is

ORDERED that Defendant’s Motion for Certification of Final Judgment Pursuant

to F.R.C.P. 54(b) and for Stay (ECF No. 52) is DENIED. It is

FURTHER ORDERED that the parties shall jointly contact my Chambers at

(303) 844-2170 on or before Friday, January 18, 2013, to schedule a status

conference.

Dated: January 10, 2013

BY THE COURT:

s/ Wiley Y. Daniel 

Wiley Y. Daniel

Senior United States District Judge

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