Cluster 282907 (1968)

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 276 (2d Cir. 1968) ('(A)ny equitable considerations underlying the decision of courts to require indemnity by applying the implied warranty of workmanlike service are ultimately derived from a shipowner's liabilities under the seaworthiness guarantee . . .'); DeGioia v. United States Lines Co., 304 F.2d 421, 425 (2d Cir. 1962) ('The primary source of the shipowner's right to indemnity, as a practical matter, is his…

We concluded that the district court’s dismissal was not error because the United States’ motion for summary judgment was “functionally the same as a motion to dismiss or a motion for judgment on the pleadings.” Id. at 273 (internal quotation marks omitted).

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968).

Co. v. Fruehauf Corp., 472 F.2d 69, 70-71 (6th Cir.1972); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 276 (2d Cir.1968); Hobart v. Sohio Petroleum Co., 445 F.2d 435, 438 (5th Cir.), cert. denied, 404 U.S. 942 , 92 S.Ct. 288 , 30 L.Ed.2d 256 (1971); Davis v. Chas.

As the Second Circuit noted in Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir.1968): [T]he trial court [should] marshall the competing considerations and state the ones considered to be most important ... [when making a Rule 54(b) certification]____ Accord, Gumer v. Shearson, Hammell & Co., Inc., 516 F.2d 283 (2d Cir.1974). [I]t would be helpful to us in reviewing the exercise of discretion in granting a Rule 54(b) certificate if the [district] cour…

As the Second Circuit noted in Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir.1968): 19 [T]he trial court [should] marshall the competing considerations and state the ones considered to be most important ... [when making a Rule 54(b) certification]....

We have repeatedly stated that “in making the ‘express determination’ required under Rule 54(b), district courts should not merely repeat the formulaic language of the rule, but rather should offer a brief, reasoned explanation.” Cullen v. Margiotta, 618 F.2d 226, 228 (2d Cir.1980) (citing Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir.1976)); see Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir.1974); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270…

Ansam argues that the district court's June 9, 1983 order did not contain a proper Rule 54(b) certification; the district court merely stated, "there being no just reason for delay, the Clerk is hereby directed to enter judgment forthwith as to the said claims ...," without reference to Rule 54(b). 14 We have repeatedly stated that "in making the 'express determination' required under Rule 54(b), district courts should not merely repeat the formulaic language of the rule, bu…

In so holding, we note that while the affidavit of Ericsson’s counsel may in the first instance have provided insufficient grounds for granting a summary judgment motion, because the relevant paragraphs were not made on personal knowledge, see Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 , 70 S.Ct. 894, 896 , 94 L.Ed. 1312 (1950); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968); 10A C.

In so holding, we note that while the affidavit of Ericsson's counsel may in the first instance have provided insufficient grounds for granting a summary judgment motion, because the relevant paragraphs were not made on personal knowledge, see Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831 , 70 S.Ct. 894, 896 , 94 L.Ed. 1312 (1950); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968); 10A C.

True, there is a countercurrent in the cases, illustrated by Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 272 (2d Cir.1968), where a federal immigration inspector sued the owner of a French ship, alleging “that while working in the main lounge clearing passengers for admission into the United States, he was caused to trip and fall by reason of the ship’s maintaining its piano platform and the carpeting thereof in a dangerous and defective condition.” The defe…

Louis, Inc., 639 F.2d 404 , 406-07 (8th Cir.1981); White v. Johns-Manville Corp., 662 F.2d 243, 247 (4th Cir.1981). 11 True, there is a countercurrent in the cases, illustrated by Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 272 (2d Cir.1968), where a federal immigration inspector sued the owner of a French ship, alleging "that while working in the main lounge clearing passengers for admission into the United States, he was caused to trip and fall by reason o…

Davis and Security Management Co., Inc., urge the following as the law of this circuit: “In entering a rule 54(b) certification [Fed.R.Civ.P. 54(b)], a district court should include a statement explaining its reasoning for determining [that] there is no just reason for delay.” In support of this proposition, they cite Huckeby v. Frozen Food Express, 555 F.2d 542, 550 (5th Cir. 1977), and Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 274-275 (2d Cir. 1968).

Arlinghaus, supra, 543 F.2d at 464 ; Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir. 1968); see also Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir. 1975).

Kress & Co., 398 U.S. 144, 159 , 90 S.Ct. 1598, 1609 , 26 L.Ed.2d 142 , 155 n. 19 (1970) (witness’ statement, offered in opposition to motion, implied as not complying with Rule 56(c) because unsworn); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968) (answers to interrogatories not to be considered in opposition to motion because, inter alia, not verified); Piper v. United States, 392 F.2d 462, 464 (5th Cir. 1968) (denials in unverified pleadin…

Kress & Co., 398 U.S. 144, 159 , 90 S.Ct. 1598, 1609 , 26 L.Ed.2d 142 , 155 n. 19 (1970) (witness' statement, offered in opposition to motion, implied as not complying with Rule 56(c) because unsworn); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968) (answers to interrogatories not to be considered in opposition to motion because, inter alia, not verified); Piper v. United States, 392 F.2d 462, 464 (5th Cir. 1968) (denials in unverified pleadin…

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968); Moore, supra, Para. 56.02(3), at 2035.

In the same vein, the Second Circuit in Gumer v. Shearson, Hammill & Co., Inc., 516 F.2d 283 (2d Cir. 1974) said: 13 "We suggest to the district courts that in the future it would be helpful to us in reviewing the exercise of discretion in granting a Rule 54(b) certificate if the court, rather than incorporating in the certificate (footnote omitted) the conclusory language of Rule 54(b), would make a brief reasoned statement in support of its determination that, 'there is no…

Accord, Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir. 1968) (“. . . the trial court [should] marshall the competing considerations and state the ones considered to be most important.”).

Hobart, supra, 445 F.2d 435, 439 ; Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 276 (2d Cir. 1968).

“To the extent that a defendant’s motion for summary judgment under Federal Rule of Civil Procedure 56 is based entirely on the allegations of the plaintiff’s complaint, such a motion is functionally the same as a motion to dismiss for failure to state a claim under [Rule] 12(b)(6).”5 Tafari v. McCarthy, 714 F. Supp. 2d 317, 338 (N.D.N.Y. 2010); see Schwartz v. Compagnie General Transatlantique, 405 F.2d 270 , 273 (2d Cir. 1968) (“A motion for summary judgment may be made so…

Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) (citations omitted).

As a result, “[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) [citations omitted]; accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”).

The Second Circuit has recognized that, “[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon a motion for summary judgment.” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968).

See Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968) (“Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.”).

Reply Mem. of Law at 3. 14 “Where, as here, defendants argue that they are entitled to summary judgment because a claim is insufficiently pled, courts evaluate the motion under the Rule 12(b)(6) standard.” Myers v. Moore, 326 F.R.D. 50 , 59 (S.D.N-Y. 2018) (citation omitted); see also Schwartz v. Compaignie General Transatlantique, 405 F.2d 270 , 273-74 (2d Cir. 1968) (“Where appropriate, a trial judge may dismiss for failure to state a cause of action upon [a] motion for su…

Transatlantique, 405 F.2d 270 , 273 (2d Cir. 1968) (“Where appropriate, a trial 4 judge may dismiss for failure to state a cause of action upon motion for summary judgment.”). 5 To the extent Wells Fargo’s arguments are directed at Roza’s inability to provide evidence of a 6 public interest impact at this stage of the litigation, the Court concludes that the motion is 7 premature as Roza has not been able to engage in any discovery, which would be necessary to 8 demonstrate …

A “district court e[an] dismiss for failure to state a claim upon motion for summary judgment, but a motion so decided is functionally equivalent to a motion to dismiss.” Bogosian v. Gulf Oil Corp., 561 F.2d 434, 444 (3d Cir.1977) (cit ing Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968)).

Thus, a witness may not testify to a matter “on information and belief.” Cf. Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968) (refusing to consider interrogatory answers alleged on “information and belief’).

Thus, a witness may not testify to a matter "on information and belief." Cf. Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968) (refusing to consider *73 interrogatory answers alleged on "information and belief").

Transatlantique, 405 F.2d 270 , 273-74 (2d Cir.1968) [citations omitted]; accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”).

Transatlantique, 405 F.2d 270 , 273-74 (2d Cir.1968) [citations omitted]; accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”).

As a result, “[w]here appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) [citations omitted]; accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 sum mary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”).

As a result, “[wjhere appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) [citations omitted], accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to *193 dismiss the complaint] is proper with or without notice to the partie…

As a result, “[wjhere appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270 , 273-74 (2d Cir.1968) [citations omitted], accord, Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y. 1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”…

The district court's well-articulated reasons obviously guided the Supreme Court's ultimate decision to reverse the court of appeals and to reinstate the district court's certification as within its discretion. [2] Even prior to rendition of Curtiss-Wright, the U.S. Court of Appeals for the Second Circuit had already expressed its view that "the trial court [should] marshal the competing considerations and state the ones considered to be most important" when certifying a par…

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir. 1968), the court held that there was no abuse of discretion in certifying final judgment by simply stating that there was "no just reason for delay.” The court went on to state that “Rule 54(b) orders should not be entered routinely or as a courtesy to counsel and suggest that when such orders are granted, the trial court marshal the competing considerations and state the ones considered to be most imp…

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968), quoting 6 J.

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968); Mercantile National Bank at Dallas v. Franklin Life Ins.

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2nd Cir.1968); United States v. Mills, 372 F.2d 693, 696 (10th Cir.1966); Parker v. De Kalb Chrysler Plymouth, 459 F.Supp. 184, 187 (D.C.Ga.1978), aff’d 673 F.2d 1178 (11th Cir.1982); 6 Moore’s Federal Practice, ¶¶ 56.02[3], pp. 56-29, 56.-11[3], p. 56-229.

Kress & Co., 898 U.S. 144 , 158 n. 17, 90 S.Ct. 1598 , 1608 n. 17, 26 L.Ed.2d 142 (1970); British Airways Board v. Boeing Co., 585 F.2d at 952 ; Gordon v. Watson, 622 F.2d 120, 123 (5th Cir.1980); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir.1968).

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2nd Cir.1968); United States v. Mills, 372 F.2d 693, 696 (10th Cir.1966); Parker v. DeKalb Chrysler Plymouth, 459 F.Supp. 184, 187 (D.C.Ga.1978), aff’d 673 F.2d 1178 (11th Cir.1982); 6 Moore’s Federal Practice, ¶¶ 56.02[3], pp. 56-29, 56.11[3], p. 56-229.

Certification is certainly not to be granted “routinely or as a courtesy or accommodation to counsel.” Panichella v. Pennsylvania R.R. (3d Cir. 1958) 252 F.2d 452, 455 , quoted in Brunswick Corp., supra, 582 F.2d at 183 ; Schwartz, supra, 405 F.2d at 274.

While “Rule 54(b) orders should not be entered routinely or as a courtesy to counsel,” Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir. 1968), nonetheless where, as here, determination is complete as to the predominant count of the complaint, where what remains does not involve the issues of that count and the only remaining defendant consents, where appeal of the decision of March 16, 1971 and Order of March 25, 1971 as to count one of the complaint…

Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275-276 (2d Cir. 1968).

See Schwartz, 405 F.2d at 273.

See Schwartz 4 v. Compagnie General Transatlantique, 405 F.2d 270, 273 (2d Cir. 1968); Kincaid v. 5 Anderson, 681 F. App’x 178, 181 (4th Cir. 2017) (“Although interrogatory answers are 6 appropriate materials for summary judgment purposes, Fed.

See Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 273-74 (2d Cir.1968) (‘Where appropriate, a trial judge may dismiss for failure to state a cause of action upon motion for summary judgment.”) [citations omitted]; Katz v. Molic, 128 F.R.D. 35, 37-38 (S.D.N.Y.1989) (“This Court finds that ... a conversion [of a Rule 56 summary judgment motion to a Rule 12(b)(6) motion to dismiss the complaint] is proper with or without notice to the parties.”).

See Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 274 (2d Cir.1968); RePass v. Vreeland, 357 F.2d 801, 804-805 (3d Cir.1966); 10 C.

Accord, Schwartz v. Compagnie General Transatlantique, 405 F.2d 270 , 274 (2d Cir.1968); Aniero Concrete Co. v. New York City Constr.