Opinion
CIVIL ACTION NO. 00-2738, SECTION "C" (5)
July 20, 2001
IT IS ORDERED that the motion for entry of final judgment pursuant to Rule 54(b) filed by Sentry Select Insurance Company is DENIED without prejudice. The mover seeks a judgment ordering indemnification in an unspecified amount, payment of a specific sum representing losses to date "without prejudice to Sentry's right to seek payment of additional losses as they are incurred," and the posting of collateral in the amount of the reserve posted.
Although this motion is unopposed, the consent of the parties is not determinative of whether the Court should exercise its discretion to enter a Rule 54(b) judgment. James Wm. Moore, 10 Moore's Federal Practice § 54.23 (2001). Although the Court has granted the mover's motion for summary judgment, the judgment that is sought is not final, but merely interim and partial, presumably to be followed by other interim and partial judgments as to a single claim. First, Rule 54(b) does not eliminate the statutory requirement of finality. Id., at § 54.28. In addition, a judgment has implications for purposes of appeal and execution of judgment that are not well served by interim and partial judgments. Discretion under Rule 54(b) should be exercised to avoid piecemeal appeals. Id., at § 54.23.
Under these circumstances, the Court can not find that the judgment sought disposes of a single claim or party or that there is no just reason for delay for purposes of Rule 54(b). This denial is without prejudice in the event that the mover can provide the Court with a proposed judgment that would meet the prerequisites of the rule.
In addition, the mover states that Acadian and the Edwardses have assigned to it the amounts which become due under the contract with Cashman.