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 IN THE UNITED STATES DISTRICT COURT 

 FOR THE DISTRICT OF COLORADO 

Senior Judge Wiley Y. Daniel

Civil Action No. 11-cv-02434-WYD-MEH 

CARL GENBERG, 

 Plaintiff, 

v. 

STEVEN S. PORTER; an individual, 

JEFFREY SPERBER; an individual, 

AL BAUTISTA; an individual, 

MICHELE DARNAUD; an individual, 

CHERYL HOFFMAN-BRAY; an individual, 

PHILIPPE GASTONE; an individual, and, 

MARC REDLICH, an individual, 

Defendants. 

______________________________________________________________________ 

ORDER 

______________________________________________________________________ 

 THIS MATTER is before the Court on plaintiff, Carl Genberg’s, Motion For Entry 

Of Judgment Pursuant To Fed. R. Civ. P. 54(b) [ECF No. 137]. For the reasons stated 

below, the motion is DENIED. 

BACKGROUND 

 On April 16, 2012, plaintiff, Carl Genberg, filed a Second Amended Complaint 

[ECF No. 77] against Steven S. Porter, Jeffrey Sperber, Al Bautista, Michele Darnaud, 

Cheryl Hoffman-Bray, Philippe Gastone, and Marc Redlich, alleging a Colorado state 

law defamation claim and violations under the whistle-blower protection provisions of 

the Sarbanes-Oxley Act (“SOX”) of 2002, 15 U.S.C. § 1514A, and the Dodd-Frank Wall 

Street Reform and Consumer Protection Act (“DFA”), 15 U.S.C. § 78u-6. 

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 This suit results from Genberg’s disclosures to his employer about alleged 

securities violations and his employer’s subsequent actions, including Genberg’s 

termination. On May 3, 2012, defendant, Marc Redlich, filed a Motion to Dismiss [ECF 

No. 84] arguing that this Court lacks subject matter jurisdiction over Genberg’s SOX 

claim against Redlich because Genberg failed to exhaust administrative remedies by 

failing to name Redlich as a respondent in his Occupational Safety and Health 

Administration (“OHSA”) complaint. That same day, defendants, Steven S. Porter, 

Jeffrey Sperber, Al Bautista, Michele Darnaud, Cheryl Hoffman-Bray, and Philippe 

Gastone filed a Motion To Dismiss [ECF No. 85] arguing that: (1) this court lacks 

subject matter jurisdiction over Genberg’s SOX claims because he failed to exhaust 

administrative remedies by not naming any of the defendants, except Porter, in his 

OSHA complaint; and, (2) Genberg’s DFA retaliation claim fails because Ceragenix 

Incorporation’s (“Ceragenix”) failure to pay Genberg post-termination salary pursuant to 

the employment contract is due to Ceragenix’s bankruptcy proceedings and bankruptcy 

law, not Porter and Sperber’s alleged retaliation. On July 11, 2012, Genberg filed a 

Motion For Partial Summary Judgment [ECF No. 92] arguing that he is entitled to 

summary judgment on his SOX claim against Bautista, Hoffman-Bray, Darnaud, 

Gastone, and Porter. On January 18, 2013, Genberg filed a Motion To Compel 

Arbitration [ECF No. 107] arguing that pursuant to Genberg’s employment contract with 

Osmotics Pharma, Inc., now Ceragenix, all claims except those asserted under the DFA 

are arbitable and the parties must proceed to arbitration. 

 On March 25, 2013, I issued an Order [ECF No. 124] in which I: (1) denied 

Genberg’s Motion To Compel Arbitration [ECF No. 107]; (2) granted Redlich’s Motion 

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To Dismiss Second Amended Complaint [ECF No. 84]; and, (3) granted in part and 

denied in part Porter, Sperber, Bautista, Darnaud, Hoffman-Bray, and Gastone’s Motion 

To Dismiss [ECF No. 85]. As a result of that Order [ECF No. 124], the only claims that 

remain are Genberg’s SOX claim and state law defamation claim against Porter. 

Genberg appealed my March 25, 2013, Order [ECF No. 124] and filed his opening brief 

with the United States Court of Appeals for the Tenth Circuit on July 24, 2013. On 

August 7, 2013, Redlich filed a Motion To Dismiss with the Tenth Circuit arguing that it 

lacks subject matter jurisdiction over my ruling regarding his Motion To Dismiss [ECF 

No. 84] because my March 25, 2013, Order [ECF No. 124] is not a final appealable 

order. 

 On August 15, 2013, Genberg filed a Motion For Entry Of Final Judgment 

Pursuant To Fed. R. Civ. P. 54(b) [ECF No. 137] requesting that I direct the Clerk of 

Court to enter final judgment in favor of Redlich, Sperber, Bautista, Darnaud, HoffmanBray, and Gastone against Genberg on his SOX claim. On August 20, 2013, the Tenth 

Circuit issued an Order stating that it will toll briefing in the appeal until I rule on 

Genberg’s Motion For Entry Of Final Judgment Pursuant To Fed. R. Civ. P. 54(b) [ECF 

No. 137]. 

ANALYSIS 

A. Motion For Entry Of Final Judgment Under Rule 54(b) of the FEDERAL RULES of 

CIVIL PROCEDURE

Pursuant to FED. R. CIV. P. 54(b): 

When an action presents more than one claim for relief--

whether as a claim, counterclaim, crossclaim, or third-party 

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 if the court expressly 

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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. 

 

Thus, “[r]ule 54(b) establishes three prerequisites for appeal of a separate final 

judgment on fewer than all claims in a lawsuit: (1) multiple claims; (2) a final decision 

on at least one claim; and (3) a determination by the district court that there is no just 

reason for delay.” Jordan v. Pugh, 425 F.3d 820, 826 (10th Cir. 2005) (citing 10 WRIGHT, 

MILLER & KANE, FED. PRACTICE & PROC. § 2656, at 48-60 (3d ed. 1998)). “Rule 54(b) is 

not intended to provide a mechanism for splitting multiple claims into separate lawsuits.” 

Id. at 829. “Partial final judgment is intended to serve the limited purpose of protecting 

litigants from undue hardship and delay in lawsuits involving multiple parties or multiple 

claims.” Id. (citation omitted). “Application of the rule should preserve the ‘historic 

federal policy against piecemeal appeals.’” Id. (quoting Curtiss-Wright Corp. v. General 

Elec. Co., 446 U.S. 1, 8 (1980)). 

1. Multiple Claims 

 Genberg asserts three claims: (1) Colorado state law defamation; (2) violations 

under the whistle-blower protection provisions of SOX; and, (3) retaliation under the 

DFA. Thus, this action involves multiple claims. 

2. Final Decision On At Least One Claim 

 “To be final for purposes of Rule 54(b), 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.’” Jordan, 425 F.3d at 826 (quoting Curtiss-Wright Corp., 446 U.S. at 7). 

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“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.” 

Okla. Tpk. Auth. v. Bruner, 259 F.3d 1236, 1242 (10th Cir. 2001) (citations omitted). 

“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. at 1243. 

 Genberg seeks certification with respect to my ruling as to his SOX claims. ECF 

No. 137, p. 12. I dismissed the claim as to defendants, Redlich, Sperber, Bautista, 

Darnaud, Hoffman-Bray, and Gastone because Genberg failed to exhaust his 

administrative remedies as to those defendants. ECF No. 124, pp. 14-15. I did not 

dismiss Genberg’s SOX claim against Porter because Genberg properly named Porter 

in his OSHA complaint and therefore exhausted his administrative remedies with 

respect to Porter. Id. 

 Without going into the merits of Genberg’s SOX claims, as they are not properly 

before me at this time, the claims center on the circumstances surrounding Genberg’s 

termination. Genberg alleges that each defendant played a part in his termination, 

either by being a member of Ceragenix’s Board of Directors (Sperber, Bautista, 

Darnaud, Hoffman-Bray, and Gastone), by being Ceragenix’s Chief Executive Officer 

(Porter), or by being the attorney who investigated Genberg’s actions and concluded 

that Genberg violated his fiduciary duties to Ceragenix (Redlich). As such, Genberg’s 

SOX claims are inter-related and not wholly separate from each other. While the 

defendants may present different defenses, the claims involve the same operative facts. 

Thus, I find that Genberg’s SOX claim against Redlich, Sperber, Bautista, Darnaud, 

Hoffman-Bray, and Gastone and Genberg’s SOX claim against Porter are not distinct 

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and separable for the purposes of Rule 54(b). 

3. Just Reason For Delay 

 Having made the finding that Genberg’s SOX claims against the defendants 

involve the same operative facts, I find that there is just reason for delay and I will not 

direct the Clerk of Court to enter judgment on Genberg’s SOX claim against Redlich, 

Sperber, Bautista, Darnaud, Hoffman-Bray, and Gastone. 

CONCLUSION 

After careful consideration of the matter before this Court, it is 

 ORDERED that Genberg’s Motion For Entry Of Judgment Pursuant To Fed. R. 

Civ. P. 54(b) [ECF No. 137] is DENIED. 

 Dated: February 26, 2014. 

BY THE COURT: 

/s/ Wiley Y. Daniel 

Wiley Y. Daniel 

Senior U. S. District Judge 

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