220 F.R.D. 232 | S.D.N.Y. | 2004
DECISION AND ORDER
Plaintiff Siemens Westinghouse Power Corporation (“SWPC”) moves under Federal Rule of 54(b) for an order entering final judgment with respect to a claim upon which it prevailed by summary judgment. The Court’s summary judgment order declared that SWPC would be entitled to reimbursement from defendant Dick Corporation
I. BACKGROUND
The Court has recited the basic facts of this dispute in several decisions, most recently as follows:
[SWPC] and [Dick] formed a consortium for the purpose of constructing a power plant. The plant construction became severely delayed, and the plant owners collected liquidated damages against the consortium by drawing upon letters of credit SWPC had posted on the consortium’s behalf. The parties are now suing each other, in part, to determine how much each party is responsible for those liquidated damages. In a summary judgment Decision and Order dated October 14, 2003 (“October Order”), the Court determined that, under the parties’ Consortium Agreement, Dick, not SWPC, was liable for the liquidated damages to the owners up front, and that the ultimate apportionment of those damages would be determined according to other provisions of the Consortium Agreement. See Siemens Westinghouse Power Corp. v. Dick Corp., 293 F.Supp.2d 336 (S.D.N.Y.2003).1
Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 553-54 (S.D.N.Y.2004) (footnote in original).
II. DISCUSSION
A Court may enter an otherwise interlocutory order as a final judgment under Rule 54(b) where (1) there are multiple claims or parties; (2) the order at issue is a final decision within the meaning of 28 U.S.C. § 1291; and (3) there is “ ‘no just reason for delay.’ ” See Ginett v. Computer Task Group, Inc., 962 F.2d 1085, 1091 (2d Cir.1992) (quoting Fed.R.Civ.P. 54(b)). Dick first contends that the October Order resolving SWPC’s claim is not a final decision because it may be offset by Dick’s own counterclaims and is therefore intertwined with those pending counterclaims. The Court disagrees.
The Supreme Court has held that the “mere presence” of “nonfrivolous counterclaims” which may offset a party’s liability “does not render a Rule 54(b) certification inappropriate.” Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 9, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980). As with any other claims, the significance of counterclaims “turns on their interrelationship with the claims on which certification is sought.” Id. The Second Circuit has held that “[o]nly those claims ‘inherently inseparable’ from or ‘inextricably interrelated’ to each other are inappropriate for rule 54(b) certification.” Ginett, 962 F.2d at 1096. SWPC’s claim for the initial liquidated damages payments is not intertwined with Dick’s counterclaim because the claims “can be decided independently of each other.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436, 76 S.Ct. 895, 100 L.Ed. 1297 (1956). That is, whether SWPC is entitled to reimbursement for the payment of liquidated damages to a third party initially is a simple matter of interpreting particular contract provisions which have nothing to do with the separate contract provisions determining the ultimate apportionment of liability as between Dick and SWPC.
Second, Dick argues that there are “just reason[s] for delay,” Fed.R.Civ.P. 54(b), namely (1) the hardship that Dick will suffer in having to immediately pay a sum which may ultimately be offset by the Court’s later
III. ORDER
For the reasons stated, it is hereby:
ORDERED that, in accordance with the Court’s Decision and Order dated October 14, 2003, defendant Dick Corporation is found liable to plaintiff Siemens Westinghouse Power Corporation (“SWPC”) for breach of contract in the amount of $15,041,327.98 and the Clerk of Court is directed to enter final judgment for SWPC in that amount in accordance with Federal Rule of Civil Procedure 54(b).
SO ORDERED.
. The Court's October Order stated that its determination as to Dick's liability would be subject to a later determination regarding certain affirmative defenses to that liability. 293 F.Supp.2d at 343. In January 2004, the Court determined that those affirmative defenses would not affect Dick’s liability to pay the liquidated damages up front. See Siemens Westinghouse Power Corp. v. Dick Corp., 299 F.Supp.2d 242 (S.D.N.Y.2004).