chevron-down Created with Sketch Beta.
September 15, 2020 Practice Points

Using Federal Rule of Civil Procedure 54(b) During the COVID-19 Pandemic

Unsticking the wheels of justice.

By Saran Q. Edwards

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside our paywall and available to all readers.

The civil justice system’s “wheels,” notoriously slow during normal times, have been further affected by an unprecedented and extremely contagious global virus. Nevertheless, there may be an unsung hero waiting in the wings: the oft-neglected Federal Rule of Civil Procedure 54(b).

To see how Rule 54(b) might be used to “unstick” the wheels of justice, one need only look to the case of Alex Morgan, et al. v. United States Soccer Federation, Inc., where members of the U.S. Women’s National Soccer Team sued the sport’s umbrella organization, alleging violations of the Equal Pay Act of 1963 and discrimination on the basis of gender and working conditions, in violation of Title VII of the Civil Rights Act. The U.S. District Court for the Central District of California granted in part, the defendant’s motion for summary judgment dismissing the Equal Pay Act and Title VII discrimination claims, as well as the Title VII discriminatory-working-conditions claim regarding field surface conditions. However, the plaintiffs’ Title VII discriminatory-working conditions-claims pertaining to travel conditions and personnel and support services survived dismissal. Consequently, the plaintiffs filed an unopposed motion for entry of final judgment under Rule 54(b), as to allow an immediate appeal of the aforesaid dismissed claims.

Rule 54(b) and Finality

Under Rule 54(b), when an action presents more than one claim for relief, a district court “may direct the entry of a final judgment as to one or more, but fewer than all, claims upon determination that ‘there is no just reason for delay.’” See also Curtiss–Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 10 (1980). In deciding a Rule 54(b) motion, a court must first find that there has been a final judgment. A disposition is considered to be final if there has been a decision upon a cognizable claim for relief, and if it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Id at 6–7. In Morgan, the plaintiffs posited that the district court’s dismissal of the Equal Pay and Title VII claims were final, as it was the court’s ultimate judgment regarding cognizable claims for relief.

No Just Delay

If a court determines that the disposition is final, then it must then ascertain whether there exists “no just reason for delay.” Fed R. Civ. P. 54(b). In doing so, it takes “into account judicial administrative interests as well as the equities involved.” Curtiss–Wright Corp., 446 U.S. at 8. As mentioned above, the COVID-19 pandemic has created quite a conundrum: Cases scheduled for jury trials have been placed on indefinite holds until it can be determined how to safely reconvene. Therefore, litigators should consider borrowing a page from the Morgan plaintiffs’ unopposed motion, and averring that the aforesaid holding pattern weighs in favor of finding no just reason for delay, especially if their appeals to the respective circuit courts can proceed through briefing, argument, and decision largely unimpeded. Further, allowing the appeal to proceed would avoid the risk of a second trial with the same participants in the event the dismissals are subsequently reversed, a less-than-ideal outcome considering the significant health risks posed by the coronavirus and the corresponding impracticability of holding jury trials.

Judicial Administrative Interests and the Weight of the Equities

A court also considers whether the claims in question are separable from those that remain and if the nature of the claims already determined would require an appellate court to decide the same issues more than once. As a result, if the moving party can allege that the claims in question are sufficiently dissimilar from those that remain, and that the need to streamline the issues is great, it can establish that judicial administrative interests would be satisfied by granting its Rule 54(b) motion. Further, the Morgan plaintiffs argued that Rule 54(b) certification is necessary to prevent undue hardship and prejudice because their appeal would likely endure an indeterminate delay caused by the current public-health emergency, a situation all litigators find themselves in at present. Ergo, there is no reason to believe that the precedent argument would be any less impactful for other similarly situated attorneys.


In sum, to avoid endless adjournments, prejudice, and duplicitous proceedings as a result of the ongoing COVID-19 pandemic, it would befit attorneys to perpend seeking certification pursuant to Federal Rule of Civil Procedure 54(b) whenever prudent.

Saran Q. Edwards is an attorney with John Rue & Associates, LLC in Lake Hopatcong, New Jersey.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).