Nat'l Bank of Washington v. Dolgov, 853 F.2d 57 (2d Cir. 1988). · Go Syfert
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Nat'l Bank of Washington v. Dolgov, 853 F.2d 57 (2d Cir. 1988). Cases Citing This Book View Copy Cite
48 citation events (16 in the last 25 years) across 8 distinct courts.
Strongest positive: NYSA Series Trust v. Dessein (ca2, 2015-11-25)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 29 distinct citers. How cited ↗
discussed Cited as authority (rule) NYSA Series Trust v. Dessein
2d Cir. · 2015 · confidence medium
See, e.g., Harriscom, 947 F.2d at 630 (“Absent an explanation by the district court, we have no basis for conducting a meaningful review of the district court’s exercise of its discretion.”); National Bank of Washington v. Dolgov, 853 F.2d 57, 58-59 (2d Cir.1988) (given a certification that only tracked the language of Rule 54(b), without an explanation, dismissing the appeal for lack of appellate jurisdiction); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (same); Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (same); see also id. (a “unified” appeal “is particu…
discussed Cited as authority (rule) Securities & Exchange Commission v. Frohling
2d Cir. · 2015 · confidence medium
See, e.g., Harriscom, 947 F.2d at 630 (“Absent an explanation by the district court, we have no basis for conducting a meaningful review of the district court’s exercise of its discretion.”); National Bank of Washington v. Dolgov, 853 F.2d 57, 58-59 (2d Cir.1988) (given a certification that only tracked the language of Rule 54(b), without an explanation, dismissing the appeal for lack of appellate jurisdiction); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (same); Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (same); see also id. (a “unified” appeal “is particu…
discussed Cited as authority (rule) Krys v. Sugrue
2d Cir. · 2013 · confidence medium
See, e.g., Harriscom Svenska AB v. Harris Corp., 947 F.2d 627, 630 (2d Cir.1991) (“Absent an explanation by the district court, we have no basis for conducting a meaningful review of the district court’s exercise of its discretion.”); National Bank of Washington v. Dolgov, 853 F.2d 57, 58-59 (2d Cir.1988) (given a certification that only tracked the language of Rule 54(b), without an explanation, dismissing the appeal for lack of appellate jurisdiction); Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (same); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (same).
discussed Cited as authority (rule) Novick v. AXA NETWORK, LLC
2d Cir. · 2011 · confidence medium
In applying these principles, we have repeatedly noted that the district court generally should not grant a Rule 54(b) certification “ ‘if the same or closely related issues remain to be litigated.’ ” Harriscom, 947 F.2d at 629 (quoting National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (other internal quotation marks omitted)).
discussed Cited as authority (rule) Morse v. City of New York (2×) also: Cited "see"
2d Cir. · 2002 · confidence medium
See id. at 630 ; National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988).
discussed Cited as authority (rule) United States v. Hansel
N.D.N.Y. · 1998 · confidence medium
“An order that ... adjudicates the rights and liabilities of fewer than all of the parties is not a final order unless the court directs the entry of a final judgment as to the dismissed claims or parties ‘upon an express determination that there is no just reason for delay.’ ” National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (quoting Fed.R.Civ.P. 54(b)); L.B.
discussed Cited as authority (rule) Harriscom Svenska Ab v. Harris Corporation
2d Cir. · 1991 · confidence medium
In general, a Rule 54(b) certification of the dismissal of fewer than all the claims in an action should not be granted “ ‘if the same or closely related issues remain to be litigated.’ ” National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) (quoting Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.), cert. denied, 483 U.S. 1021 , 107 S.Ct. 3266 , 97 L.Ed.2d 764 (1987)); see Cullen v. Margiotta, 811 F.2d at 711 (“In a case involving multiple claims, the court should not enter final judgment dismissing a given claim unless that claim is separable from the cla…
discussed Cited as authority (rule) LTV Steel Co. v. United Mine Workers
2d Cir. · 1991 · confidence medium
Case law dictates that “a district court cannot merely announce that ‘there is no just reason for delay.’ ” Pension Benefit Guarantee Corp. v. LTV Corp. (PBGC), 875 F.2d 1008, 1014 (2d Cir.1989) (quoting Fed.R.Civ.P. 54(b)). “ ‘Rather, its certification must be accompanied by a reasoned, even if brief, explanation of its conclusion.’ ” Id. (quoting National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) (citation omitted)), rev’d on other grounds, — U.S. —, 110 S.Ct. 2668 , 110 L.Ed.2d 579 (1990); see Curtiss-Wright Corp. v. General Elec.
discussed Cited as authority (rule) In Re Chateaugay Corporation
2d Cir. · 1991 · confidence medium
Courts, if anything, have interpreted Rule 54(b) even more strictly than the Rule's language requires. 5 Case law dictates that "a district court cannot merely announce that 'there is no just reason for delay.' " Pension Benefit Guarantee Corp. v. LTV Corp. (PBGC), 875 F.2d 1008, 1014 (2d Cir.1989) (quoting Fed.R.Civ.P. 54(b)). " 'Rather, its certification must be accompanied by a reasoned, even if brief, explanation of its conclusion.' " Id. (quoting National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) (citation omitted)), rev'd on other grounds, --- U.S. ----, 11…
discussed Cited as authority (rule) St. Paul Fire and Marine Insurance Company v. Pepsico, Inc., Pepsico, Inc., Third-Party v. Banner Industries, Inc., Third-Party (2×) also: Cited "see, e.g."
2d Cir. · 1989 · confidence medium
First, the court’s error was not that it used formulaic and conclusory language in granting PepsiCo’s motion for the entry of judgment, see, e.g., National Bank, 853 F.2d at 58 (criticizing use of conclusory language to fulfill requirements of Rule 54(b)); Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.) (same), cert. denied, 483 U.S. 1021 , 107 S.Ct. 3266 , 97 L.Ed.2d 764 (1987).
discussed Cited as authority (rule) Pension Benefit Guaranty Corp. v. LTV Corp.
2d Cir. · 1989 · confidence medium
In issuing a Rule 54(b) certification, a district court cannot merely announce that “there is no just reason for delay.” “ ‘Rather, its certification must be accompanied by a reasoned, even if brief, explanation of its conclusion.’ ” National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) (quoting Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.), cert. denied, 483 U.S. 1021 , 107 S.Ct. 3266 , 97 L.Ed.2d 764 (1987)).
discussed Cited as authority (rule) United States Court of Appeals, Second Circuit
2d Cir. · 1989 · confidence medium
As there were claims left unresolved, the appropriateness of a Rule 54(b) certification was properly raised. 32 In issuing a Rule 54(b) certification, a district court cannot merely announce that "there is no just reason for delay." " 'Rather, its certification must be accompanied by a reasoned, even if brief, explanation of its conclusion.' " National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) (quoting Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.), cert. denied, 483 U.S. 1021 , 107 S.Ct. 3266 , 97 L.Ed.2d 764 (1987)).
cited Cited as authority (rule) Weissman v. Fruchtman
S.D.N.Y. · 1989 · confidence medium
The National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988).
cited Cited "see" Kaufman LLC v. Derzaw
2d Cir. · 2023 · signal: see · confidence high
See Nat’l Bank of Wash. v. Dolgov, 853 F.2d 57 , 58 (2d Cir. 1988).
cited Cited "see" Gidatex, S.R.L. v. Campaniello Imports, Ltd.
S.D.N.Y. · 1999 · signal: see · confidence high
See Nat’l Bank of Washington v. Dolgov, 853 F.2d 57 , 58 (2d Cir.1988) (per curium).
cited Cited "see" Rodriguez v. DeBuono
S.D.N.Y. · 1999 · signal: see · confidence high
See Nat’l Bank of Washington v. Dolgov, 853 F.2d 57 , 58 (2d Cir.1988) (per curiam).
discussed Cited "see" Advanced Magnetics, Inc. v. Bayfront Partners, Inc.
2d Cir. · 1997 · signal: see · confidence high
See generally National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam); Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (per curiam); Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir.1978); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (per curiam).
discussed Cited "see" Advanced Magnetics, Inc. v. Bayfront Partners, Inc.
2d Cir. · 1997 · signal: see · confidence high
See generally National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam); Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (per curiam); Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir.1978); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (per curiam). 62 Second, though AMI's claims under § 10(a) and Rule 10a-1 are set out in a section of the complaint entitled "SECOND CAUSE OF ACTION," with its claims under § 10(b) and Rules 10b-5 and 10b-21 having been set out in the section denominated "FIRST CAUSE OF ACTION," we doubt whether the two sections…
discussed Cited "see" Pepper v. King County
Wash. Ct. App. · 1991 · signal: see · confidence high
See National Bank of Wash. v. Dolgov, 853 F.2d 57 , 58 (2d Cir. 1988) (dismissing appeal under Fed.
discussed Cited "see" Fox v. Sunmaster Products, Inc.
Wash. · 1990 · signal: see · confidence high
See National Bank of Wash. v. Dolgov, 853 F.2d 57 , 58 (2d Cir. 1988) (dismissing appeal from partial summary judgment order resolving claims against all but one defendant because the order "merely repeated the language of Rule 54(b) in haec verba"); Schiffman v. Hanson Excavating Co., 82 Wn.2d 681, 689 , 513 P.2d 29 (1973) (also a multiparty case).
discussed Cited "see, e.g." O'Bert ex rel. Estate of O'Bert v. Vargo
2d Cir. · 2003 · signal: see, e.g. · confidence medium
See, e.g., National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) (haec verba certification); Cullen v. Margiotta, 618 F.2d at 228 (haec verba certification); Brunswick Corp. v. Sheridan, 582 F.2d at 183 (stated reasons for certification inadequate); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (per curiam) (haec verba certification).
discussed Cited "see, e.g." O'Bert v. Vargo
2d Cir. · 2003 · signal: see, e.g. · confidence medium
See, e.g., National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir. 1988) (per curiam) (haec verba certification); Cullen v. Margiotta, 618 F.2d at 228 (haec verba certification); Brunswick Corp. v. Sheridan, 582 F.2d at 183 (stated reasons for certification inadequate); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (per curiam) (haec verba certification).
discussed Cited "see, e.g." John Andrew Cuoco v. Kenneth Moritsugu
2d Cir. · 2000 · signal: see also · confidence low
Foster Co. v. America Piles, Inc., 138 F.3d 81, 86 (2d Cir. 1998); see also National Bank v. Dolgov, 853 F.2d 57 , 58 (2d Cir. 1988) (per curiam) (dismissing appeal for lack of a final judgment where certification merely recited the words of Rule 54(b)). 48 The district court offered no explanation for entering a partial final judgment here, stating conclusorily that it "perceives no just reason for delay in the entry of judgment of dismissal in favor of those defendants." Ordinarily, this insufficiency would prevent us from exercising appellate jurisdiction over this cross-appeal.
discussed Cited "see, e.g." Cuoco v. Moritsugu
2d Cir. · 2000 · signal: see also · confidence low
Foster Co. v. America Piles, Inc., 138 F.3d 81, 86 (2d Cir.1998); see also National Bank v. Dolgov, 853 F.2d 57 , 58 (2d Cir.1988) (per curiam) (dismissing appeal for lack of a final judgment where certification merely recited the words of Rule 54(b)).
discussed Cited "see, e.g." L.B. Foster Company v. America Piles, Inc., Grace Industries, Inc., Michael J. Amoruso, Esq.
2d Cir. · 1998 · signal: see, e.g. · confidence medium
See, e.g., National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir. 1988) (per curiam) (dismissing appeal for lack of a final judgment where certification merely recited the words of the Rule); Cullen v. Margiotta, 618 F.2d at 228 (same); Arlinghaus v. Ritenour, 543 F.2d 461, 463-64 (2d Cir.1976) (per curiam) (same).
discussed Cited "see, e.g." Horace D. McCowan Jr. And Sarah E. McCowan v. Dean Witter Reynolds Inc.
2d Cir. · 1989 · signal: see also · confidence low
When a complaint asserts multiple claims, until a district court finally disposes of all of them “the effect of no certification by the district court is to make any adjudication as to a claim ... interlocutory, and hence non-ap-pealable as a final judgment.” 6 Moore’s Federal Practice 1154.28[2], at 54-135 (2d ed. 1988) (footnote omitted); see also National Bank v. Dolgov, 853 F.2d 57 , 58 (2d Cir.1988).
discussed Cited "see, e.g." Comite Pro Rescate De La Salud, Etc. v. Puerto Rico Aqueduct and Sewer Authority, Etc.
1st Cir. · 1989 · signal: compare · confidence medium
Compare Consolidated Rail, 861 F.2d at 326 and Spiegel, 843 F.2d at 44 (in the absence of a statement of reasons, the appellate court, while foregoing “deference,” may nonetheless allow appeal) with National Bank of Washington v. Dolgov, 853 F.2d 57, 58 (2d Cir.1988) (per curiam) and Knafel v. Pepsi Cola Bottlers of Akron, Inc., 850 F.2d 1155, 1159-60 (6th Cir.1988) (refusing to permit appeal because district court failed to analyze Rule 54(b) factors).
discussed Cited "see, e.g." Fletcher v. Marino
2d Cir. · 1989 · signal: see also · confidence medium
See Pension Benefit Guaranty Corp. v. LTV Corp., 875 F.2d 1008, 1014 (2d Cir.1989) (citing Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974)); see also National Bank, 853 F.2d at 58 (district court did not give reasons for certification under Rule 54(b) and reasons for certification were not apparent from limited record before the Court); Perez v. Ortiz, 849 F.2d 793, 796-97 (2d Cir.1988) (policies underlying Rule 54(b) best served by exercising jurisdiction over appeal where reasons district court would provide on remand were "obvious").
discussed Cited "see, e.g." Fletcher v. Marino
2d Cir. · 1989 · signal: see also · confidence medium
See Pension Benefit Guaranty Corp. v. LTV Corp., 875 F.2d 1008, 1014 (2d Cir.1989) (citing Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974)); see also National Bank, 853 F.2d at 58 (district court did not give reasons for certification under Rule 54(b) and reasons for certification were not apparent from limited record before the Court); Perez v. Ortiz, 849 F.2d 793, 796-97 (2d Cir.1988) (poli cies underlying Rule 54(b) best served by exercising jurisdiction over appeal where reasons district court would provide on remand were “obvious”).
Retrieving the full opinion text from the archive…
The National Bank of Washington
v.
Murray Dolgov, Halpert, Oberst and Company, Security Pacific National Trust Company, and Security Pacific Clearing & Services Corp.
1254.
Court of Appeals for the Second Circuit.
Jul 18, 1988.
853 F.2d 57
Cited by 15 opinions  |  Published

853 F.2d 57

11 Fed.R.Serv.3d 1143

The NATIONAL BANK OF WASHINGTON, Plaintiff-Appellant,
v.
Murray DOLGOV, Halpert, Oberst and Company, Security Pacific
National Trust Company, and Security Pacific
Clearing & Services Corp., Defendants-Appellees.

No. 1254, Docket 88-7250.

United States Court of Appeals,
Second Circuit.

Argued June 23, 1988.
Decided July 18, 1988.

Louis J. Maione, New York City (Kathryn Dalli, Maione & Collins, New York City, on the brief), for plaintiff-appellant.

Anthony Djinis, Washington, D.C. (MariAnne Pisarri, Pickard and Djinis, Washington, D.C., Catherine A. Ludden, Gaston & Snow, New York City, on the brief), for defendants-appellees Halpert, Oberst and Co., Sec. Pacific Nat. Trust Co., and Sec. Pacific Clearing & Services Corp.

Before NEWMAN, KEARSE and CARDAMONE, Circuit Judges.

PER CURIAM:

[*~57]1

Plaintiff National Bank of Washington ("NBW") appeals from a judgment of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, dismissing its complaint as to defendants Halpert, Oberst and Company, Security Pacific National Trust Company, and Security Pacific Clearing & Services Corp. (collectively the "dismissed defendants"). Because the case remains pending against another defendant and because the district court has not stated adequate reason for the immediate entry of a final judgment as to the dismissed defendants, we dismiss the appeal for lack of appellate jurisdiction.

BACKGROUND

2

NBW commenced the present action in December 1987 in connection with the erroneous issuance of a security known as a bank depository receipt ("BDR"), seeking to recover $120,000 (a) from defendant Murray Dolgov for alleged conversion, unjust enrichment, fraud, and negligent misrepresentation with regard to the endorsement of the BDR, or (b) from the dismissed defendants for breach of warranty under Article 8 of the Uniform Commercial Code with regard to the signatures endorsing the BDR. Shortly after commencement of the action, certain of the dismissed defendants advised the court that they wished to move to dismiss the complaint, and on February 11, 1988, the district judge held a conference of all the parties. No written motion was served or filed, and the proceedings at the conference apparently were not recorded.

3

On February 26, the court ordered that the complaint be dismissed against all defendants except Dolgov. There was no written opinion or memorandum accompanying the order, nor any statement in the order itself as to the grounds for the dismissal. The order provided "that, there being no just reason for delay, pursuant to Rule 54(b), F.R.Civ.P. and upon the express direction of the Court, final judgment in favor of [the dismissed defendants] shall be entered forthwith." A document entitled "Partial Judgment," dated March 22, 1988, was entered accordingly, and this appeal by NBW followed. For the reasons below, we dismiss.

DISCUSSION

4

Since the decision of the district court challenged here does not relate to an injunction, see 28 U.S.C. Sec. 1292(a)(1) (1982 & Supp. IV 1986), and is not an interlocutory order as to which we have granted leave to appeal, see id. Sec. 1292(b) (1982 & Supp. IV 1986), this Court lacks jurisdiction to hear the present appeal unless the decision is a "final" order within the meaning of 28 U.S.C. Sec. 1291 (1982). An order that adjudicates fewer than all of the claims remaining in the action or adjudicates the rights and liabilities of fewer than all of the parties is not a final order unless the court directs the entry of a final judgment as to the dismissed claims or parties "upon an express determination that there is no just reason for delay." Fed.R.Civ.P. 54(b).

5

Respect for the federal policy against piecemeal appeals requires that the district court's power to enter a final judgment before the entire case is concluded be exercised sparingly. See, e.g., Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 100 S.Ct. 1460, 1464, 64 L.Ed.2d 1 (1980); Cullen v. Margiotta, 811 F.2d 698, 710 (2d Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 3266, 97 L.Ed.2d 764 (1987). Exercise of that power is reviewable on appeal and may be overturned for abuse of discretion. Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 8-10, 100 S.Ct. at 1460-66; Cullen v. Margiotta, 811 F.2d at 711. In light of the reviewability of the decision to enter a Rule 54(b) order, "it does not suffice for the district court to announce its determination that 'there is no just cause for delay' in conclusory form. Rather, its certification must be accompanied by a reasoned, even if brief, explanation of its conclusion." Cullen v. Margiotta, 811 F.2d at 711. Thus, in a number of cases, where the certification merely repeated the language of Rule 54(b) in haec verba and provided no illumination as to why there was no just cause for delay, or where the reasons cited by the district court were inadequate, we have dismissed the appeals for lack of a final judgment. See, e.g., Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (per curiam) (haec verba certification); Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir.1978) (stated reasons for certification inadequate); Arlinghaus v. Ritenour, 543 F.2d 461 (2d Cir.1976) (per curiam) (haec verba certification).

6

The order of the district court in the present case was conclusory in form, merely reciting the language of Rule 54(b) without providing any explanation for the conclusion that a partial final judgment should be entered immediately. Thus, we do not regard the March 22, 1988 Partial Judgment as a proper final judgment. Nor, given the limited record before us, is it at all clear that a Rule 54(b) certification should be entered, since such a certification is generally not appropriate "if the same or closely related issues remain to be litigated against the undismissed defendants." Cullen v. Margiotta, 811 F.2d at 710. From the allegations in the complaint, it would appear that the claim of forgery asserted against Dolgov is closely related to the claim that the dismissed defendants breached their warranties that the BDR endorsements were genuine and appropriate. Indeed, at the oral argument of this appeal, the panel posed a number of questions relating to the claims against the dismissed defendants and was given answers that apparently have been developed in the discovery currently being conducted on the surviving claim against Dolgov.

7

Finally, we note that even if we were presented with a final order within the meaning of Sec. 1291, we would be unable to conduct a meaningful review of the dismissal on the basis of the present record. In dismissing, the district court did not record the reasons for its decision. There is no written opinion, no statement of the grounds of the dismissal in the order itself, no transcript of any grounds for dismissal that the court may have mentioned orally at the conference, and no written motion stating grounds that the court might have endorsed. We trust that when an appropriate final judgment is entered, the record will provide greater illumination of the grounds for the decisions that may be challenged on appeal.

CONCLUSION

[*~58]8

The appeal is dismissed for lack of appellate jurisdiction. No costs.