Civil No. 02-CV-870-BEN (RBB).
September 20, 2005
ALSCHULER GROSSMAN STEIN KAHAN LLP, Marshall B. Grossman, C. Stephen Howard, Scott Vick, Santa Monica, CA.
BUTZ DUNN DESANTIS BINGHAM, Douglas M. Butz, Kevin DeSantis, San Diego, CA. Attorneys for Defendant ARTHUR ANDERSEN LLP.
On or about May 5, 2005, Plaintiffs The Loran Group filed a motion under Federal Rules of Civil Procedure, Rule 54(b), asking the Court to enter separate judgments on two earlier orders of the Court (the "Orders") that had dismissed certain claims in this action against certain defendants (the "54(b) Motion"). The 54(b) Motion was set for hearing on September 19, 2005. Defendant Arthur Andersen LLP ("Andersen") filed Opposition to the 54(b) Motion on July 8, 2005, contending that the Orders were not final as to any claim in the operative Consolidated First Amended Complaint. On August 11, 2005, Plaintiffs filed a Reply to Andersen's Opposition, contending that the Orders were final, relying heavily on, and quoting from, the United States Supreme Court's decision in Gillespie v. United States Steel Corp., 379 U.S. 148 (1964). Plaintiffs' Reply Memorandum at page 1, line 18 to page 2, line 11; page 4, line 25 to page 5, line 1; and page 5, line 13 to page 6, line 7. In Gillespie, the Supreme Court agreed to hear an appeal from a lower court decision that arguably did not meet the strict requirements of finality ordinarily applied in the federal courts. Plaintiffs argued that the more lenient standard of Gillespie should be applied in this case to allow an immediate appeal under Rule 54(b). The Gillespie case was not cited anywhere in Plaintiffs' original 54(b) Motion.
The Court has now taken the hearing on Plaintiffs' 54(b) Motion off calendar and has taken the Rule 54(b) Motion under submission. Because Andersen has not otherwise had an opportunity to comment on Plaintiffs' reliance on the Gillespie case, Andersen lodges this Sur-Reply to call to the Court's attention that Gillespie has in fact been severely limited by both the United States Supreme Court and by the Ninth Circuit.
The Supreme Court has expressly stated that the more lenient standard of finality applied in Gillespie can be justified only because "an unsettled issue of national significance" was at stake. Coopers Lybrand v. Livesay, 437 U.S. 463, 477 n. 30 (1978). In the words of the Supreme Court, "If Gillespie were extended beyond the unique facts of that case, § 1291 would be stripped of all significance." Id. (emphasis added).
Similarly, the Ninth Circuit has declined to apply Gillespie routinely when determining whether an order is final, instead following the Supreme Court's ruling that Gillespie is limited to cases involving unsettled issues of national significance. All Alaskan Seafoods, Inc. v. M/V Sea Producer, 882 F.2d 425, 428 n. 2 (9th Cir. 1989). In All Alaskan Seafoods the Ninth Circuit wrote, "[T]he exception to the finality requirement carved out by Gillespie is a narrow one, applicable only `to orders involving unsettled issues of national importance where immediate review would serve the purpose of judicial economy underlying the finality rule . . .'" Id. (emphasis added).
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