Certification Under Rule 54(b): Risky Efficiency
| Publication year | 1984 |
| Pages | 997 |
1984, June, Pg. 997. Certification Under Rule 54(b): Risky Efficiency
Congested court dockets and runaway costs of litigation demand that responsible civil litigators constantly search for ways to streamline their cases. The modern challenge is to reach a successful resolution of the client's problem in the most timely and economical manner.
Meeting this challenge has engendered increasingly novel departures from the traditional blueprint for litigation. Motions for partial summary judgment, motions in limine, bifurcated trials and preliminary injunctions are a few examples of these efforts. Rule 54(b) of the Colorado Rules of Civil Procedure ("C.R.C.P.") can be a valuable tool in this streamlining and paring process, but using the tool in the wrong situation can have exactly the opposite results.
C.R.C.P. Rule 54(b) reads as follows: Judgment Upon Multiple Claims Or Involving Multiple Parties. 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. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
The current version of the rule dates from the 1946 revisions to the federal rule, which responded to a litigant's need for clarity in identifying when a specific order or judgment was final, particularly for purposes of perfecting the appeal. By making the trial court the "dispatcher" of issues for appeal, the revised rule eliminated the flood of precautionary appeals. In 1961, the rule was further amended to provide the same results in cases involving multiple parties.(fn1)
Obtaining a Rule 54(b) certification from the trial court is a tempting device in all sorts of situations where the final determination on a contested point of law may eliminate all or many other issues in the case or may facilitate settlement. It is used most often to test a partial summary judgment or order of dismissal, but may also have its place where the trial has been bifurcated, joinder of parties or claims is contested, the legal validity of a counterclaim is pivotal or the relative responsibility of co-defendants is at issue.
Given the increasing popularity of naming as a defendant every individual or entity in sight, using Rule 54(b) to obtain finality as to an early dismissal of peripheral defendants can dramatically reduce litigation costs for those defendants as well as simplify the trial for the remaining parties. Recording a notice of lis pendens is similarly popular in every case even remotely affecting real property. Thus, Rule 54(b), in combination with amended Rule 105(f)(2), offers a badly needed escape route from the possibility of a continuing cloud on title created by the lis pendens recorded incident to interminable litigation.
In summary, Rule 54(b) is increasingly used by lawyers and parties to avoid the horror of dragging through protracted litigation and trial in reliance on a particular ruling of the trial court, only to have that ruling overturned later on appeal and being forced to start all over.
Lawyers on opposite sides of a case frequently agree that a particular ruling
...
To continue reading
Request your trial