*The HONORABLE LEONARD I. GARTH, United States Circuit

Judge for the Third Circuit, sitting by designation.

 1The Honorable Catherine D. Perry, United States District

Judge for the Eastern District of Missouri.

___________

No. 95-2215

___________

Pagoda Trading Company, Inc., *

*

Plaintiff/Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Pro Moves, Inc., * [UNPUBLISHED]

*

Defendant, *

*

Timothy D. Brown, *

* Defendant/Appellant. * ___________

 Submitted: December 14, 1995

 Filed: February 26, 1996 ___________

Before FAGG, GARTH,* and WOLLMAN, Circuit Judges. ___________

PER CURIAM.

Timothy D. Brown appeals both the district court's1 grant of

summary judgment in favor of Pagoda Trading Co., Inc. (Pagoda) on

his personal guaranty and its certification of the judgment

pursuant to Federal Rule Civil Procedure 54(b). We affirm.

I.

Brown is a professional football player for the Oakland

Raiders. In 1990, Brown and his brother, Donald Kelly, formed Pro
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Moves, Inc. (Pro Moves) for the purpose of selling athletic shoes.

Brown became Chairman of the Board of Pro Moves and Kelly acted as

President. Pro Moves entered into an agreement with Pagoda in

September of 1990 whereby Pagoda would design and manufacture shoes

and supply them to Pro Moves. 

From 1992 until February 1993, Pagoda sent shipments of

athletic shoes to Pro Moves. Although each shipment contained a

sales invoice, Pro Moves did not pay Pagoda according to the

invoice terms. In fact, during this entire period, Pro Moves paid

Pagoda only $103,233.19 on these invoices, although it ordered

shoes worth $1,594,477.55. In May 1992, Brown complied with

Pagoda's request that he sign a personal guaranty to vouch for Pro

Moves' debt to Pagoda for up to $1 million. 

In February 1993, Pro Moves executed a demand note evidencing

its indebtedness of $1,438,882.76 to Pagoda. Despite Pagoda's

demand for payment, Pro Moves failed to pay. Brown also failed to

honor the terms of his personal guaranty.

 

Pagoda brought an action against Pro Moves and Brown in

September of 1993. Pagoda's suit against Pro Moves consisted of an

action on account, a claim for breach of contract, and an action on

the demand note. Pagoda also brought a claim against Brown on the

personal guaranty. Pro Moves and Brown counterclaimed for breach

of a joint venture agreement. Pagoda filed a motion for summary

judgment as to all of the claims. The district court granted

partial summary judgment on three of Pagoda's claims and on the

counterclaim, leaving only Pagoda's breach of contract claim

against Pro Moves for trial. On motion by Pagoda, the district

court certified the judgment against Brown pursuant to Rule 54(b).

Brown appeals.
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II.

Because our jurisdiction depends on proper certification of

the judgment pursuant to Rule 54(b), we must first decide this

issue before reaching the merits of the grant of summary judgment.

Under Rule 54(b) the district 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." Before granting certification, the district

court must consider the equities involved and take into account

judicial administrative interests so as to prevent piecemeal

appeals. Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8

(1980). We review the district court's grant of Rule 54(b)

certification for an abuse of discretion. Interstate Power Co. v.

Kansas City Power & Light Co., 992 F.2d 804, 807 (8th Cir. 1993).

The district court correctly followed the requirements of Rule

54(b) by stating there was no just reason for delay in certifying

the judgment. Elaborating on its decision, the court stated that

"[t]here are no issues remaining for decision as between plaintiff

[Pagoda] and defendant Brown, and the ultimate resolution of [the

breach of contract claim] against Pro Moves will have no legal

effect on the already-determined liability of defendant Brown on

his personal guarantee." 

We agree that the district court's order entirely disposed of

Pagoda's claim against Brown and that there was no just reason for

delaying certification. The remaining breach of contract claim

involves a potential liability of Pro Moves for shoes that were

ordered but never shipped to Pro Moves because of its nonpayment to

Pagoda. This issue is completely severable from the guaranty claim

against Brown, which is based upon liability already incurred by

Pro Moves. At the very least, Pro Moves owes Pagoda more than $1.4

million as evidenced by the demand note, well over the amount

guaranteed by Brown. Thus, certification was proper because there
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is no significant relationship between the individual claim against

Brown based on his personal guaranty and the remaining claim

against Pro Moves for breach of contract. See In re Flight Transp.

Corp. Sec., 825 F.2d 1249, 1251 (8th Cir. 1987), cert. denied, 485

U.S. 936 (1988) (finding certification proper when "no significant

relationship [existed] between adjudicated and unadjudicated

claims"). 

Moreover, Brown's liability based on the personal guaranty is

separate and distinct from any of Pagoda's claims against Pro

Moves. Under Missouri law, "[g]uarantees are separate contracts,

collateral to and independent of any underlying agreement."

McFarland v. O'Gorman, 814 S.W.2d 692, 694 (Mo. Ct. App. 1991). A

guarantor's liability stems primarily from the guaranty itself.

Id. (citing Boatmen's Bank v. Community Interiors, Inc., 721 S.W.2d

72, 79 (Mo. Ct. App. 1986)). It was not unreasonable, then, for

the district court to order Brown to tender payment before final

resolution of the action. See Federal Deposit Ins. Corp. v.

Elefant, 790 F.2d 661, 664-65 (7th Cir. 1986) (holding that

guarantor may be required to pay obligee at once, despite pending

action on underlying note, when basic liability is apparent). 

Moving on to the merits of this action, we hold that the

district court did not err in granting partial summary judgment on

Brown's personal guaranty. We review a grant of summary judgment

de novo. Grossman v. Dillard Dep't Stores, 47 F.3d 969, 971 (8th

Cir. 1995). Because this is a diversity case, we also review the

district court's interpretation of state law de novo. Michalski v.

Bank of America Arizona, 66 F.3d 993, 995 (8th Cir. 1995) (citing

Salve Regina College v. Russell, 499 U.S. 225, 231 (1991)).

Here, it is undisputed that Brown voluntarily signed an

unconditional, continuing guaranty promising to pay Pagoda up to $1

million for debt incurred by Pro Moves. The terms of the guaranty

are clear and unambiguous. They specifically provide that the
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guaranty may be enforced "independently of any action against said

debtor." Pro Moves has acknowledged by demand note that it owes

Pagoda more than $1 million and has not tendered payment. Based on

these facts, we find that summary judgment was proper. See Lemay

Bank & Trust Co. v. Harper, 810 S.W.2d 690, 693 (Mo. Ct. App. 1991)

(finding summary judgment against guarantor appropriate when

guaranty was unambiguous, underlying debtor used loans pursuant to

guaranty, and debtor defaulted on loans). 

The district court's certification of the judgment pursuant to

Rule 54(b) and its grant of partial summary judgment against Brown

are affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.