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National Credit Union Administration Board v. Morgan Stanley & Co., Inc.

United States District Court, D. Kansas

July 21, 2015

NATIONAL CREDIT UNION ADMINISTRATION BOARD, Plaintiff,
v.
MORGAN STANLEY & CO., INCORPORATED, et al., Defendants.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, District Judge.

This matter comes before the Court on Plaintiff's Motion for Entry of Partial Final Judgment or Certification for Interlocutory Appeal (Doc. # 223). For the reasons set forth below, the Court denies the motion.

I. Background

On December 27, 2013, the Court dismissed as untimely plaintiff's claims against the Morgan Stanley defendants with respect to 20 of the 21 certificates referenced by plaintiff in its complaint. See NCUAB v. Morgan Stanley & Co., 2013 WL 6842596 (D. Kan. Dec. 27, 2013). In making that ruling, the Court reaffirmed and applied various previous rulings in a related case, including its ruling that the applicable limitations period was triggered by plaintiff's appointment as conservator for a credit union and not by its later appointment as liquidator; and its ruling that the limitations period could not be extended by a tolling agreement. See id. at *1 (citing NCUAB v. Credit Suisse Sec. (USA) LLC, 939 F.Supp.2d 1113 (D. Kan. 2013)). With respect to the latter ruling, the Court had held that plaintiff could not alternatively rely on the doctrine of equitable estoppel to avoid dismissal of certain claims as untimely. See Credit Suisse, 939 F.Supp.2d at 1126. The Tenth Circuit subsequently issued its ruling in NCUAB v. Barclays Capital Inc., 785 F.3d 387 (10th Cir. 2015), another related case, and it held that although the limitations period could not be extended by agreement, plaintiff was not precluded from asserting equitable estoppel in that case based on a separate express promise by the defendant not to assert a limitations defense based on the period of time encompassed by the agreement. See id.

Plaintiff then sought reconsideration in this case of the Court's ruling concerning equitable estoppel in light of the Tenth Circuit's decision in Barclays. On May 27, 2015, the Court denied the motion and reaffirmed its prior dismissal of claims against the Morgan Stanley defendants as untimely. See NCUAB v. UBS Sec., LLC, 2015 WL 3407863, at *4-5 (D. Kan. May 27, 2015). In so ruling, the Court relied on the fact that plaintiff's tolling agreement with these defendants did not include the kind of express promise on which the Tenth Circuit relied in Barclays. See id.

Plaintiff seeks to appeal immediately the Court's rulings in this case concerning equitable estoppel and the use of the trigger date of plaintiff's appointment as conservator. Thus, by the present motion, plaintiff requests that the Court either enter final judgment on the dismissed claims pursuant to Fed.R.Civ.P. 54(b) or certify the relevant orders for interlocutory appeal pursuant to 28 U.S.C. ยง 1292(b).

II. Entry of Partial Final Judgment Pursuant to Rule 54(b)

Fed. R. Civ. P. 54(b) provides in relevant part as follows:

When an action presents more than one claim for relief... the court may direct entry of 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.

See id. This rule "preserves the historic federal policy against piecemeal appeals-a policy that promotes judicial efficiency, expedites the ultimate termination of an action and relieves appellate courts of the need to repeatedly familiarize themselves with the facts of a case." See Oklahoma Turnpike Auth. v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001) (citation and internal quotation omitted).

Rule 54(b) entries are not to be made routinely. Indeed, trial courts should be reluctant to enter Rule 54(b) orders since the purpose of this rule is a limited one: to provide a recourse for litigants when dismissal of less than all their claims will create undue hardships. Thus, a certification under Rule 54(b) is only appropriate when a district court adheres strictly to the rule's requirement that a court make two express determinations. First, the district court must determine that the order it is certifying is a final order. Second, the district court must determine that there is no just reason to delay review of the final order until it has conclusively ruled on all claims presented by the parties to the case.

See id. at 1242 (citations and internal quotations omitted).

In making these determinations, the district court should act as a "dispatcher" weighing Rule 54(b)'s policy of preventing piecemeal appeals against the inequities that could result from delaying an appeal. Factors the district court should consider are whether the claims under review are separable from the others remaining to be adjudicated and whether the nature of the claims already determined are such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals.

See Stockman's Water Co. v. Vaca Partners, L.P., 425 F.3d 1263, 1265 (10th Cir. 2005) (citations and ...


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