Add Another 54(b) Casualty
December 12, 2013 § 1 Comment
At some point (we may already be there), these will be so numerous that they will no longer be newsworthy, but there is yet another dismissed appeal for lack of a final judgment disposing of all issues, and no MRCP 54(b) certification.
The case is Estate of Norton: Jordan v. Norton, handed down by the MSSC December 5, 2013. I won’t bore you with the now-all-too-familiar details. This is a short opinion that you can read yourself in just a few minutes.
I am wondering whether these appellate misfires result from some kind of flaw in our rules, or whether the fault is in our stars, so to speak.
Is MRCP 54(b) ambiguous or unclear? It does not seem so to me, but that may be me looking through judicial-colored glasses with especially thick lenses. Is it unclear to lawyers who battle in the trenches?
Or is it that lawyers are acting out of an abundance of caution? If so, that seems like an expensive way to go, when a simple post-trial motion asking the judge for a 54(b) certification would cover one nicely.
I don’t know. Anyone have any ideas?
The Better Chancery Practice Blog 
The more interesting cases, IMHO, are those where a party obtains a 54(b) cert … and the appellate court still dismisses the appeal because the cert was insufficient as a matter of law. This is particularly sad where the party has drafted the 54(b) order for the trial court.