CONGOO, LLC v. REVCONTENT LLC, 3:16-cv-00401

Congoo (d/b/a Adblade) sued Revcontent and an individual, asserting Lanham Act false advertising, common-law unfair competition, NJ consumer fraud, and tortious interference. Defendants answered and counterclaimed on the same causes of action.
The district court granted Defendants partial summary judgment on the Lanham Act and common-law unfair-competition claims as to consumer products on November 3, 2017.
Parties submitted and the court entered a "Stipulated Order and Final Judgment" on November 9, 2017 that dismissed the remaining claims "without prejudice" but stated those claims would be revived if the partial summary judgment were reversed; the stipulation also declared itself a "final, appealable judgment."
Plaintiff filed a notice of appeal; the Third Circuit questioned appellate jurisdiction because the district court had not certified any Rule 54(b) determination.
Plaintiff moved in district court for entry of a Rule 54(b) certification after the Stipulated Order was entered; Defendants did not oppose. The district court denied the motion, concluding the order was not final under § 1291 and Rule 54(b) was inapplicable.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Stipulated Order is a final decision under 28 U.S.C. § 1291	The parties agreed the Stipulated Order was a final, appealable judgment; the Order's language so states	No opposition to relief; Defendants took no position on the merits of the certification	The court held the stipulation's language cannot override § 1291; the order was not final because it left the possibility of revived claims and thus was more akin to a stay
Whether the adjudicated part of the case satisfies the Curtiss‑Wright finality requirement for Rule 54(b)	The partial grant of summary judgment constitutes an "ultimate disposition" of the adjudicated claims warranting certification	No opposition; Defendants did not contest this element	The court found Plaintiff failed to meet the Rule 54(b) first-prong finality requirement because the stipulated dismissal of remaining claims left substantive contingencies, so the certification prerequisite was unmet
Whether there is "no just reason for delay" to permit a Rule 54(b) certification	Cites Allis‑Chalmers factors: lack of overlap between claims, no set-off risk, efficiency, and avoidance of waste	No objection to Rule 54(b) but did not press affirmative arguments	The court declined to certify under Rule 54(b): policy disfavors piecemeal appeals, the case is not the "infrequent harsh case," and permitting certification could encourage strategic use of similar stipulated orders

Elliot v. Archdiocese of N.Y., 682 F.3d 213 (3d Cir. 2012) (general discussion of finality and Rule 54(b) conversion)
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956) (orders terminating fewer than all claims are generally not final)
Curtiss‑Wright Corp. v. Gen. Elec. Co., 446 U.S. 1 (1980) (Rule 54(b) is an exception to finality and applies only in infrequent cases)
Allis‑Chalmers Corp. v. Phila. Elec. Co., 521 U.S. 360 (1975) (factors for evaluating whether there is "no just reason for delay")
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (1988) (finality defined as litigation on the merits leaving nothing for the court to do but execute judgment)
Sussex Drug Prods. v. Kanasco, Ltd., 920 F.2d 1150 (3d Cir. 1990) (discussing finality standard under § 1291)
Panichella v. Pa. R. Co., 252 F.2d 452 (3d Cir. 1958) (cautioning against routine or strategic use of Rule 54(b) certifications)