Rule 54(b): Have the Courts Been Getting It Wrong?

The concurrence of Judge Jeffrey Sutton in a recent Sixth Circuit case, Adler v. Elk Glenn, No. 14-5159 (6th Cir. July 10, 2014), suggests that the Sixth Circuit and numerous others are laboring under a misreading of Federal Rule of Civil Procedure 54(b). Rule 54(b) provides that “[w]hen an action presents more than one claim for relief . . . or when multiple parties are involved,” a district court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay.” In Adler, an intervening defendant insurance company moved for summary judgment arguing that it was not required to defend one of the original defendants in the suit. The insurance company’s motion was granted, and the district court later certified the question pursuant to Rule 54(b). The district court stated in a minute entry that the intervening defendant would suffer “real prejudice” if the court did not grant the order. It further stated that its order granting summary judgment was “final and appealable,” that it “certifie[d] that its order fully and completely resolved all issues between” the insured and its insurance carrier, and that there was “no just reason to delay appellate review.”