1:09-cv-00361 | S.D. Ind. | Jul 6, 2009
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
HOWARD G. HAMPTON, ) ) Plaintiff, ) vs. ) 1:09-cv-361-WTL-JMS ) DOUGLAS BELTZ, et al., ) ) Defendants. ) Entry Concerning Selected Matters I. Plaintiff Hampton seeks the immediate appeal of the court’s dismissal of the State of Indiana as a party in this civil rights action. He does so by seeking the entry of a partial final judgment as to that ruling. His claims against other defendants, as he recognizes, remain pending.
Hampton is entitled to proceed as he requests only if, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure, the court enters a partial final judgment. “When one or more of the claims in a litigation remain pending in the district court, any ‘judgment’ is nonfinal unless the district court enters a Rule 54(b) judgment. . . .” Alonzi v. Budget Construction Co., 55 F.3d 331, 333 (7th Cir. 1995). This, in turn, will occur only if two circumstances are present. The proper entry of judgment under Rule 54(b) first requires that the district court reach a judgment that is final in the sense that it completely disposes of a separate claim for relief or finally resolves all claims against a particular party or parties. Second, Rule 54(b) requires an "express determination that there is no just reason for delay." See Steve's Homemade Ice Cream, Inc. v. Stewart, 907 F.2d 364 (2d Cir. 1990); _______________________________ Hon. William T. Lawrence, Judge United States District Court Southern District of Indiana United States General, Inc. v. Albert, 792 F.2d 678, 680-81 (7th Cir. 1986). A "claim" for purposes of Rule 54(b) refers to factually or legally connected elements of a case. Buckley v. Fitzsimmons, 919 F.2d 1230, 1237-38 (7th Cir. 1990), vacated on other grounds, 112 S. Ct. 40 (1991), modified, 952 F.2d 965 (7th Cir. 1992), cert. granted in part, 113 S. Ct. 53 (1992); Horn v. Transcon Lines, Inc., 898 F.2d 589, 592 (7th Cir. 1990) (collecting cases).
Here, the court concludes that although the ruling of May 19, 2009, does entirely dispose of all claims against a particular defendant, these are factually the same claims as presented against the remaining defendants. There is no reason to invite duplicate or piecemeal appeals in which the Court of Appeals would be presented with the same factual record. There is not, moreover, even the hint of merit in appealing the dismissal of the State of Indiana as a defendant. “[A]ny 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.” Fed.R.Civ.P. 54(b).
The plaintiff’s Motion for 54(B) Certification is therefore denied.
II.
Hampton also seeks leave to proceed on appeal in forma pauperis . This motion is denied, because the appeal is not taken in good faith, meaning that there is no objectively reasonable argument the plaintiff could present to argue that the dismissal of the State of Indiana was incorrect or is appealable at this time. Lee v. Clinton, 209 F.3d 1025, 1026 (7th Cir. 2000)(“to sue in bad faith means merely to sue on the basis of a frivolous claim, which is to say a claim that no reasonable person could suppose to have any merit”).
IT IS SO ORDERED.
07/06/2009
Date: Distribution: Michael D. Austin HULSE, LACEY, HARDACRE, AUSTIN & SHINE P.C. maustin@hulse-lacey.com Donald G. Banta
INDIANA OFFICE OF THE ATTORNEY GENERAL
donald.banta@atg.in.gov Ronald J. Semler STEPHENSON MOROW & SEMLER rsemler@stephlaw.com James S. Stephenson STEPHENSON MOROW & SEMLER jstephenson@stephlaw.com Ian L. Stewart STEPHENSON MOROW & SEMLER istewart@stephlaw.com Cory Christian Voight
INDIANA OFFICE OF THE ATTORNEY GENERAL
cory.voight@atg.in.gov Howard G. Hampton 2189 Blue Bluff Road Martinsville, IN 46151