Opinion
03 Civ. 4033 (RWS)
May 18, 2004
FRANK H. WOHL, ESQ., ETHAN G. ZLOTCHEW, ESQ., LANKLER SIFFERT WOHL, New York, NY, for Plaintiff
JOHN F. REDWINE, ESQ., REDWINE LAW OFFICES, Dallas, TX, for Defendants
SHELDON EISENBERGER, ESQ., New York, NY, for Defendants
OPINION
Plaintiff FTI Consulting, Inc. ("FTI") has moved pursuant to Fed.R.Civ.P. 54(b) for entry of final judgment against defendants A. Cal Rossi, Jr. ("Rossi") and Basic Capital Management, Inc. ("BCM") on FTI's account stated claim. For the reasons set forth below, the motion is granted.
Prior Proceedings
FTI filed suit against Rossi, BCM and defendant Gene Phillips ("Phillips") on June 3, 2003, stating four causes of action, for breach of contract, account stated, conversion and unjust enrichment. On September 3, 2003, FTI moved for partial summary judgment on its account stated claim. Summary judgment on the account stated claim was granted on February 25, 2004. See FTI v. Rossi, 03 Civ. 4033, 2004 WL 359378 (S.D.N.Y. Feb. 25, 2004).
FTI filed the instant motion on March 12, 2004, seeking an order directing the entry of final judgment pursuant to Rule 54(b). After submission of briefs, oral argument was heard on the motion on April 28, 2004, at which time the motion was deemed fully submitted. Discussion
As counsel for both plaintiff and defendants acknowledged at oral argument, the instant case bears many similarities to the related caseLankier, Siffert Wohl v. Rossi, 02 Civ. 10055, before this Court. As in this case, partial summary judgment was granted to the plaintiffs on the account stated claim, see Lankier, Siffert Wohl v. Rossi, 287 F. Supp.2d 398 (S.D.N.Y. 2003), and plaintiffs' request for entry of final judgment was granted. See Lankier, Siffert Wohl v. Rossi, 02 Civ. 10055, 2004 WL 541842 (S.D.N.Y. Feb. 19, 2004) ("Lankler"). FTI has made the same arguments in favor of entry of judgment as were made by the plaintiffs in Lankier, and Rossi and BCM, who are defendants in Lankier, have made the same arguments in opposition.
In the absence of compelling new arguments from defendants, entry of final judgment will be directed against Rossi and BCM. In order to enter final judgment under Rule 54(b),
(1) multiple claims or multiple parties must be present, (2) at least one claim, or the rights and liabilities of at least one party, must finally be decided within the meaning of 28 U.S.C. § 1291, and (3) the district court must make "an express determination that there is no just reason for delay" and expressly direct the clerk to enter judgment.Ginett v. Computer Task Group, 962 F.2d 1085, 1091 (2d Cir. 1992) (quoting Rule 54(b)). As in Lankier, BCM and Rossi concede that the first factor is satisfied. Further, the account stated claims have been finally decided within the meaning of § 1291.
The fact that the [FTI] also [has] claims based on alternate legal theories does not alter that fact. In addition, the grant of partial summary judgment against BCM and Rossi entitles [FTI] to all relief requested on those claims, despite the fact that [FTI] did not also move for summary judgment against Phillips. While there may remain issues regarding apportionment and contribution among the defendants, those issues have no impact on the question of whether judgments may be executed against BCM and Rossi. BCM and Rossi may litigate those issues separately without affecting Plaintiffs' judgments.Lankier, 2004 WL 541842, at *3. BCM and Rossi also argue that the Court has not yet resolved the claims by Rossi and BCM against third party defendant American International Specialty Lines Insurance Company ("AISLIC"). However, such claims are severable from the FTI's account stated claim. The Third Circuit upheld the certification of final judgment under Rule 54(b) by the district court even though the plaintiff "ha[d] direct claims against other defendants, and [one defendant] ha[d] cross-claims for contribution against these same parties." Waldorf v. Shuta, 142 F.3d 601, 611 (3d Cir. 1998); see also Capital Transit Co. v. District of Columbia, 225 F.2d 38, 40 (D.C. Cir. 1955) ("Third party complaints seeking indemnity or contribution have in several instances been held to present a severable claim, capable of separate final adjudication under Rule 54(b). . . ."). Because the claims against Phillips and AISLIC are not "`inherently inseparable' from or `inextricably related' to" FTI's account stated claim against BCM and Rossi, Lankier 2004 WL 541842, at *4 (quoting Ginett, 962 F.2d at 1096), Rule 54(b) certification is appropriate.
BCM and Rossi filed a third-party complaint against AISLIC seeking reimbursement for fees paid to FTI.
The interests of sound judicial administration would be served by the certification of the judgment in FTI's favor. The argument for entry of judgment is even stronger in this action than in Lankler, because there is only one plaintiff in this action, while in Lankier there were eight, two of whom did not move for partial summary judgment. More significantly, as in Lankler, if the judgment for FTI is satisfied on the account stated claim, FTI will have received full relief, and it will not need to litigate its remaining causes of action. Certification will also not involve potentially duplicative work for this Court or the appellate court:
If the appellate court affirms the judgment, the case will be at an end . . . If the judgment [is] vacated, Plaintiff will seek relief on the alternate legal theories — a course of action [it] may undertake in the absence of certification.Lankier, 2004 WL 541842, at *5.
Finally, as in Lankier, FTI has "been waiting for over a year and a half for payment of substantial sums on [its] account stated. It is therefore held, in the interest of sound judicial administration and the financial hardship of Plaintiff, that there is no just reason for the delay of the entry of final judgment on [FTI's claims] for account stated." Id. at *5. The Federal Post-Judgment Rate of Interest Applies
FTI has submitted a proposed final judgment, which includes an award of post-judgment interest calculated according to the New York statutory rate of interest, which is nine percent. See CPLR §§ 5003, 5004. In support of its argument that the New York rate of interest applies, FTI cites the same district court cases employing the state interest rate as were cited by the plaintiffs in Lankler. See, e.g., Inter-Ocean Industries, Inc. v. Nasser, 02 Civ. 8499, 2003 WL 21639453, at *2 (S.D.N.Y. July 2, 2003);Kinqvision Pay-Per-View, Ltd. v. Recio, 02 Civ. 6583, 2003 WL 21383826, at *6 (S.D.N.Y. June 11, 2003).
In Lankler, however, it was determined that the federal post-judgment interest statute, 28 U.S.C. § 1961(a), which applies to "any money judgment in a civil case recovered in a district court," preempted the state interest statute. See Lankler, 2004 WL 541842, at *5-6. As inLankler,
the federal rate of post-judgment interest will apply to the judgments filed by [FTI]. Amended judgments should accordingly be filed by [FTI], with 10 days notice given to the defendants to raise further objections.Id. at *6. Conclusion
The objections of BCM and Rossi to entry of final judgments on FTI's account stated claim pursuant to Rule 54(b) are rejected, and it is determined that there is no just reason for the delay of entry of the judgments. The clerk is therefore directed to enter judgment on the account stated claim. The judgments will be amended to reflect the federal rate of post-judgment interest pursuant to 28 U.S.C. § 1961(a).
It is so ordered.