259 F.3d 135 (3rd Cir.

2001)

BERCKELEY INVESTMENT GROUP, LTD.

v.
DOUGLAS COLKITT; SHORELINE PACIFIC
INSTITUTIONAL FINANCE, THE INSTITUTIONAL
DIVISION OF FINANCE WEST GROUP; NATIONAL
MEDICAL FINANCIAL SERVICES CORPORATION
DOUGLAS COLKITT, APPELLANT
No. 00-3433

UNITED STATES COURT OF APPEALS FOR THE THIRD

CIRCUIT
Argued December 12, 2000
July 26, 2001
1

On Appeal from the United States District Court for the Middle District of
Pennsylvania (D.C. No. 97-CV-1242) District Judge: Honorable James F.
McClure, Jr.

James P. Kimmel, Jr., Esq. (Argued) Peter Konolige, Esq. Marcy L. Colkitt &
Associates 983 Old Eagle School Road The Woods, Suite 618 Wayne, PA
19087 Counsel for Appellant

Mitchell R. Katz, Esq. (Argued) Jay Starkman, Esq. Joel Magolnick, Esq.
Moscowitz, Starkman & Magolnick Bank of America Tower, 37th Floor 100
Southeast 2nd Street Miami, FL 33131 Luis E. Delgado, Esq. Homer, Bonner &
Delgado Bank of America Tower, Suite 3400 100 Southeast 2nd Street Miami,
FL 33131 Counsel for Appellee Berckeley Investment Group, Ltd.

Michael J. Lawson, Esq. (Argued) Lisa M. Carvalho, Esq. Steefel, Levitt &
Weiss, P.C. One Embarcadero Center, 30th Floor San Francisco, CA 94111
James J. Kutz, Esq. Duane, Morris & Heckscher 305 North Front Street P.O.
Box 1003, 5th Floor Harrisburg, PA 17108-1003 Counsel for Appellee
Shoreline Pacific Institutional Finance, The Institutional Division of the
Financial West GroupBefore: Scirica, Ambro, Circuit Judges, and Pollak,
District Judge.*

OPINION OF THE COURT

Ambro, Circuit Judge
5

Defendant-Appellant Douglas Colkitt appeals from the District Court's award

of summary judgment in favor of the Plaintiff-Appellee Berckeley Investment
Group, Ltd. ("Berckeley"), and the denial of his own cross-motion for summary
judgment. Berckeley's claims against Colkitt are for breach of contract -- more
particularly, Colkitt's refusal to convert debentures held by Berckeley into
unregistered shares of National Medical Financial Services Corp. ("National
Medical"), as required by the Offshore Convertible Securities Purchase
Agreement (the "Agreement") the two entered into in 1996. Colkitt has
interposed various defenses, including the allegation that Berckeley violated
several registration provisions of the securities laws of the United States,
thereby voiding his obligations to convert the debentures under the Agreement.

Berckeley's complaint makes additional claims against the broker of the

transaction -- Shoreline Pacific Institutional Finance, the Institutional Division
of the Financial West Group ("Shoreline") -- claiming breaches of contract and
fiduciary duty. Shoreline, in turn, has made cross-claims against Colkitt for
breach of contract and contractual indemnification. The claims by and against
Shoreline remain unresolved.

While we recognize the benefits of the expeditious resolution of the parties'

conflict, we nevertheless find that this Court, in the absence of the District
Court's certification of its order as a partial final judgment pursuant to Federal
Rule of Civil Procedure 54(b), does not have jurisdiction to entertain this appeal
in light of the pending claims against Shoreline. We therefore refuse
jurisdiction under 28 U.S.C. S 1291 and remand to the District Court for
consideration of those factors relevant to such certification and, if it deems
necessary, compliance with Rule 54(b).
I. FACTS AND PROCEDURAL HISTORY

On May 30, 1996, Colkitt and Berckeley entered into an Agreement by which
Berckeley purchased forty convertible debentures issued by Colkitt at a price of
$50,000 each, for a total of $2,000,000. The debentures had a term of one year
and paid interest of 6%, due quarterly. The debentures further provided that
Berckeley had the unilateral option to demand that Colkitt convert each
debenture into unregistered shares of National Medical, a company led by
Colkitt as the Chairman of its Board of Directors and which traded on the

Nasdaq Stock Exchange. The number of shares converted depended on the

price of National Medical stock and included a 17% discount from the market
price. The discount was, in part, because the National Medical shares held by
Colkitt for the transaction were not registered with the Securities and Exchange
Commission, as would be required for sales of those shares within the United
States by Section 5 of the Securities Act of 1933. 15 U.S.C. S 77(e). The
Agreement between Colkitt and Berckeley was brokered by Shoreline and it
was through Shoreline that the $2,000,000 eventually passed to Colkitt on May
31, 1996.
9

Berckeley made its first demands for conversion of the debentures in

September 1996, after the expiration of a 100-day waiting period required by
the Agreement. Colkitt initially refused to convert the debentures, but
eventually acceded to the conversion of 18,320 shares, a small fraction of the
requested share conversions, in November of 1996. No other shares were
converted despite Berckeley's demands. Colkitt also refused to make interest
payments on the debentures.

10

The battle of claims then began. Berckeley filed suit against Colkitt, National
Medical and Shoreline in the United States District Court for the Middle
District of Pennsylvania on August 13, 1997.1 The complaint alleged breaches
of contract by both Colkitt and National Medical and breaches of both fiduciary
duty and contract by Shoreline. National Medical was eventually dismissed
from the action and the claims against it are immaterial to this appeal. Colkitt
filed his answer, affirmative defenses and counterclaims on October 17.
Shoreline filed a cross-claim against Colkitt on December 10. The District
Court dismissed all of Colkitt's counterclaims on April 1, 1998, but Colkitt
reasserted those counterclaims not dismissed with prejudice in an amended
counterclaim complaint, filed April 21, 1998. Berckeley filed an answer and
affirmative defenses to Colkitt's claims on May 13, 1998 and presented the first
of its motions for summary judgment in October of that year.

11

As discovery progressed, Colkitt filed another set of counterclaims and

affirmative defenses, together with a motion for summary judgment, in April
1999. In response, Berckeley filed a second motion for summary judgment in
July 1999.

12

On December 7, 1999, the District Court granted Berckeley's motion for

summary judgment and denied Colkitt's, but left open the question of damages.
In its December 7 Order, the Court noted that "the following claims/issues
remain for trial: (1) the amount of Berckeley's claim for damages due to the
breach of contract by Colkitt (Count I of the complaint); (2) Berckeley's claims

against Shoreline Pacific for breach of contract and breach of fiduciary duty
(Counts II and III of the complaint); and (3) Shoreline Pacific's cross-claims
against Colkitt for breach of contract and contractual indemnity." Recognizing
the pendency of these claims, the Court sought submissions from the parties
about how to proceed with trial and expressly stated that the "entry of final
judgment is deferred pending disposition of the remaining claims."
13

Colkitt's response to the District Court represented that he "will shortly file a
motion under Rule 54(b) and/or 28 U.S.C. S 1292(b) to immediately appeal the
Court's decision regarding the grant of summary judgment on the lack of
scienter." Berckeley filed a response outlining its recommended procedure,
including either dispositive motions or a trial on damages, the entry of final
judgment and a one-year stay of the proceedings involving Shoreline. The stay
was recommended to permit Berckeley the opportunity to collect its damages
from Colkitt, thereby mitigating its claims against Shoreline and possibly
limiting Shoreline's indemnification claims against Colkitt. In response to these
submissions, the District Court entered its January 12, 2000 Order, which
accepted Berckeley's proposed procedures. As to Colkitt's submission, the
Court stated: "Colkitt indicates that he intends to file a motion for leave to take
an interlocutory appeal. While we do not prejudge any such motion, we do not
believe that the record reflects the need for an interlocutory appeal."

14

Following the receipt of motions for final judgment and a stay, the District
Court entered its March 30, 2000 Order, awarding damages to Berckeley in the
amount of $2,611,075.52. With respect to Colkitt's threatened interlocutory
appeal, the Court stated the following: "Colkitt indicated that he intends to file
a motion for leave to take an interlocutory appeal. No such motion was filed.
Instead, Colkitt has filed a motion `for revision of and/or relief from' our orders
of December 7, 1999 and January 12, 2000. The motion in effect is a motion for
reconsideration." In fact, Colkitt's motion for reconsideration did cite Rule
54(b), but neither the text of the motion nor its supporting memorandum
contained any discussion of Rule 54(b) or partial final judgment.

15

The Court denied the motion for reconsideration and granted a one-year stay of
the proceedings involving Shoreline, the stated purpose of which was "to allow
Berckeley to obtain a final judgment against Colkitt and begin collection
efforts, which would reduce or eliminate Shoreline's potential liability to
Berckeley." The Order went on to grant Berckeley's motion for "the entry of
final judgment" and "directed" the clerk "to enter final judgment in favor of
Berckeley and against Colkitt . . . ." The Court also directed the clerk "to close
the file administratively during the period of the stay" and stated that"[i]f no
motion to lift the stay is filed before it expires, the matter will be deemed

resolved and the case shall be closed."

16

Colkitt filed a notice of appeal on April 25, 2000. His appeal was taken from
"the Order and Final Judgment entered by the district court on March 30, 2000
and from the underlying orders of December 7, 1999 and January 12, 2000." In
a surreal (though presumably strategic) change of course, Colkitt now claims
that we do not have jurisdiction because the judgment of the District Court was
not final for purposes of execution or appeal.2
II. DISCUSSION OF LAW

17

This Court's appellate jurisdiction is conferred and limited by Congress's grant

of authority. See Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850) ("Courts
created by statute can have no jurisdiction but such as the statute confers."). In
this case, appellate jurisdiction is claimed pursuant to 28 U.S.C. S 1291,3 which
states that the "courts of appeals (other than the United States Court of Appeals
for the Federal Circuit) shall have jurisdiction from appeals from all final
decisions of the district courts of the United States . . . ." The clause "final
decision" has been interpreted to require that all proceedings and claims have
been terminated in the District Court. "Ordinarily, an order which terminates
fewer than all claims, or claims against fewer than all parties, does not
constitute a `final' order for purposes of appeal under 28 U.S.C. S 1291." Carter
v. City of Philadelphia, 181 F.3d 339, 343 (3d Cir.), cert. denied sub nom., Roe
v. Carter, 528 U.S. 1005 (1999); see also Sears, Roebuck & Co. v. Mackey, 351
U.S. 427, 431-32 n.3 (1956) ("In cases involving multiple parties where the
alleged liability was joint, a judgment was not appealable unless it terminated
the action as to all the defendants.") (citing Hohorst v. Hamburg-American
Packet Co. , 148 U.S. 262, 264 (1893)).

18

Recognizing, however, that "sound judicial administration" could benefit from

relaxing the "final decision" rule, especially in complex cases involving
multiple litigants and claims, Federal Rule of Civil Procedure 54(b) was first
promulgated in 1939 to permit the district court to enter "partial" final
judgments of less than all of the claims. Mackey, 351 U.S. at 433-34. Rule
54(b) now states the following:

19

(b) Judgment Upon Multiple Claims or Involving Multiple Parties. When more
than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third-party claim, or when multiple parties are
involved, the court may direct the entry of a final judgment as to one or more
but fewer than all of the claims or parties only upon an express determination

that there is no just reason for delay and upon an express direction for the entry
of judgment. In the absence of such determination and direction, any order or
other form of decision, however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all the parties shall not
terminate the action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the entry of judgment
adjudicating all the claims and the rights and liabilities of all the parties.
20

Fed. R. Civ. P. 54(b) (emphasis added). Put more succinctly by the Supreme
Court, "[i]f the District Court certifies a final order on a claim which arises out
of the same transaction and occurrence as pending claims, and the Court of
Appeals is satisfied that there has been no abuse of discretion, the order is
appealable." Cold Metal Process Co. v. United Eng'g & Foundry Co., 351 U.S.
445, 452 (1956).4

21

Berckeley and Shoreline argue on appeal that the District Court's Order of
March 30, 2000 met the requirements of Rule 54(b) and thus we have
jurisdiction over this appeal. Their argument, however, is weakened by the
absence of both "an express determination that there is no just reason for
delay," as literally required by the text of Rule 54(b), and a clear indication
from the District Court's rulings that it was considering all the questions
relevant to a Rule 54(b) determination.5

22

Taking first the requirement of an express determination that there is no just

reason for delay, nowhere in the District Court's orders resolving this case did
it use the words "no just cause for delay" or make any statement of an
indisputably similar effect. Berckeley and Shoreline maintain that we can imply
that such a statement was the District Court's intent from similar language it
used to praise expedition in the resolution of the proceedings. Specifically,
Berckeley points to language in the Court's January 12, 2000 Order that
acceptance of Berckeley's proposal to allow it to seek collection after the entry
of summary judgment "would not delay an appeal by more than one or two
months" and that the "matter is close to resolution in this court, and may reach
resolution if the suggestion of Berckeley is followed." Neither of these
statements, however, contains "an express determination that there is no just
reason for delay," as required by Rule 54(b). In fact, neither of these statements
even implies that the District Court was considering the delay caused by an
immediate appeal of summary judgment, as the Court also said in the same
paragraph that "we do not prejudge any such motion" by Colkitt for an
interlocutory appeal. We decline to adopt the position that general references to
the necessity of expedition can substitute for the "express" determination
required by the Rule. See Bhatla v. U.S. Capital Corp., 990 F.2d 780, 786 n.6

(3d Cir. 1993).

23

Recognizing the absence of any express statement of "no just cause for delay,"
both Berckeley and Shoreline argue that such an "express" statement is not of
talismanic importance in determining whether this Court has jurisdiction after
our holding in Carter v. City of Philadelphia, 181 F.3d 339 (3d Cir. 1999).
Their reliance on Carter for the proposition that this Court no longer requires a
district court to make the express determination of Rule 54(b) is misplaced. In
Carter, we were asked to consider whether Rule 54(b) required that district
courts explain their consideration of factors in support of the determination that
there was no just cause for delay. Id. at 344-45. We had previously held that a
"proper exercise of discretion under Rule 54(b) requires the district court to do
more than just recite the 54(b) formula of `no just reason for delay.' The court
should clearly articulate the reasons and factors underlying its decision to grant
54(b) certification." Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d
360, 364 (3d Cir. 1975); see also Waldorf v. Shuta, 142 F.3d 601, 611 (3d Cir.
1998).

24

Carter was concerned with whether the court's failure to articulate the factors
discussed in Allis-Chalmers divested us of appellate jurisdiction, not whether
the express determination of "no just cause for delay" was required for
certification under Rule 54(b). Indeed, we noted in Carter that the district court
in that case had expressly stated both that there was no just cause for delay and
that it was entering a final judgment. Carter, 181 F.3d at 343 n.8. We further
stated that "the requirements of Rule 54(b) are clearly met," id. at 346, and we
went on to hold that Allis-Chalmers's requirement of a statement of reasons for
a Rule 54(b) entry of final judgment "stands not as a jurisdictional prerequisite
but as a prophylactic means of enabling the appellate court to ensure that
immediate appeal will advance the purpose of the rule." Id. at 345.6 Given the
clarity of our holding in Carter, Berckeley's and Shoreline's argument that we
intended to hold that an express determination of `no just cause for delay' was
not a jurisdictional prerequisite is unpersuasive.

25

Indeed, only one court has held that a district court's failure to state expressly
that there was "no just cause for delay" permits the exercise of jurisdiction by
the court of appeals. In Kelly v. Lee's Old Fashioned Hamburgers, Inc., 908
F.2d 1218 (5th Cir. 1990), the Fifth Circuit, en banc, held that "[i]f the
language in the order appealed from, either independently or together with
related portions of the record referred to in the order, reflects the district court's
unmistakable intent to enter a partial final judgment under Rule 54(b), nothing
else is required to make the order appealable. We do not require the judge to
mechanically recite the words `no just reason for delay.' " Id. at 1220. Unlike

Carter, the Fifth Circuit's holding in Kelly does establish the proposition on
which Berckeley and Shoreline must rely in support of their argument that this
Court has jurisdiction.
26

Further examination of the district court's holding in Kelly demonstrates that

the circumstances supporting jurisdiction in that case are not comparable to
those presented here, and therefore we do not address whether this Court
should adopt the Fifth Circuit's holding in Kelly.7

27

The district court in Kelly was undoubtedly passing on the propriety of a partial
final summary judgment under Rule 54(b). The district judge solicited a
judgment form pursuant to Rule 54(b) from the dismissed defendant, the signed
judgment was captioned "F.R.C.P. 54(b) JUDGMENT," and the order directed
"that there be final judgment entered pursuant to Federal Rule of Civil
Procedure 54(b) . . . ." Id. at 1219. There were thus three indications that the
district court, though it did not state "no just cause for delay," intended to enter
a judgment under Rule 54(b). The clarity of the district court's ruling was a
necessary condition of the Fifth Circuit's holding that the absence of an express
determination of "no just cause for delay" would not defeat its jurisdiction.
After noting the district court's three references to its intent to enter judgment
under Rule 54(b), the Fifth Circuit stated that "[t]he only question, then, is
whether this language reflects with unmistakable clarity the district judge's
intent to enter a partial final summary judgment under Rule 54(b). We have no
doubt that it does." Id. at 1221.

28

But no indicia of the District Court's intent to enter judgment under Rule 54(b)
is evident from its rulings in this case. The District Court's order does not cite
Rule 54(b) or discuss its application, but only states that it is granting "final
judgment" on the claims between Berckeley and

29

Colkitt, while holding the remaining claims by and against Shoreline in

abeyance during a one-year stay. In light of the well-known rule that a
judgment is not appealable unless it terminates all claims, see, e.g. Carter, 181
F.3d at 343, we do not take the invocation of the words "final judgment" to
indicate that the Court intended to grant an appealable partial final judgment
under Rule 54(b). The sole reference to the immediate appeal of its entry of
summary judgment is the Court's statement that "we do not prejudge any such
motion" by Colkitt for an interlocutory appeal. Not only does this statement
disclaim that it is making any ruling at all, but it appears to refer to a
hypothetical motion pertaining to the interlocutory appeal provisions of 28
U.S.C. S 1292.

30

The only reference to the application of Rule 54(b) in this case is a lone citation
to "Fed. R. Civ. P. 54 and 56" contained in the motion for the entry of final
judgment filed by Berckeley and repeated once in its Memorandum of Law, and
the similarly summary citation in Colkitt's Motion for Reconsideration. Given
the generality of these references and the paucity of any further discussion of
the requirements of Rule 54(b), we are not persuaded that the District Court
intended to enter partial final judgment in compliance with the dictates of that
Rule. The facts of this case are in stark contrast to those of Kelly and we are
unconvinced that the District Court's "language reflects with unmistakable
clarity the district judge's intent to enter a partial final summary judgment under
Rule 54(b)." Kelly, 908 F.2d at 1221.

31

Even the Fifth Circuit has recognized that the absence of an express
determination of no just cause for delay cannot be excused where it is unclear
whether the district court intended to enter a partial final judgment under Rule
54(b). See Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc., 170
F.3d 536 (5th Cir. 1999). Discussing its holding in Kelly, the court concluded
that, "[t]he intent must be unmistakable; the intent must appear from the order
or from documents referenced in the order; we can look nowhere else to find
such intent nor can we speculate on the thought process of the district judge."
Id. at 539.

32

Indeed, the facts in Briargrove substantially mirror those presented here.

"Unlike the facts in Kelly , the district court nowhere mentions Rule 54(b). And
in further contrast with the Kelly facts, neither of the parties in the instant case
submitted a motion mentioning Rule 54(b) to the district court." Id. at 539-40
(citations omitted). While the failure to mention Rule 54(b) will not, by itself,
defeat jurisdiction under that section, United States v. Ettrick Wood Prods.,
Inc., 916 F.2d 1211, 1217 (7th Cir. 1990), where there is a concurrent failure to
make an express determination of no just cause for delay, we cannot reasonably
conclude that the District Court intended to enter a partial final judgment
pursuant to that Rule.

33

We are buttressed in this conclusion by the absence of any indication, in a

colloquy with counsel or written document (order, memorandum or opinion),
that the District Court was considering any of those factors relevant to Rule
54(b), particularly those factors related to whether there was a justifiable cause
for delay. See Briargrove, 170 F.3d at 540 ("the district court in this case did
not issue any orders or memoranda discussing the substantive concerns
surrounding a Rule 54(b) certification"). We announced an illustrative list of
Rule 54(b) factors in Allis-Chalmers Corp., including:

34

(1) the relationship between the adjudicated and unadjudicated claims; (2) the
possibility that the need for review might or might not be mooted by future
developments in the district court; (3) the possibility that the reviewing court
might be obliged to consider the same issue a second time; (4) the presence or
absence of a claim or counterclaim which could result in set-off against the
judgment sought to be made final; (5) miscellaneous factors such as delay,
economic and solvency considerations, shortening the time of trial, frivolity of
competing claims, expense, and the like. Depending upon the facts of the
particular case, all or some of the above factors may bear upon the propriety of
the trial court's discretion in certifying a judgment as final under Rule 54(b).

35

Allis-Chalmers Corp., 521 F.2d at 364 (citations omitted). While the

consideration of these factors is not a jurisdictional prerequisite, see Carter, 181
F.3d at 345, this case illustrates why explaining the relevant factors in
determining that there is no just cause for delay has the importance we
attributed to it in Allis-Chalmers . Without the District Court's consideration of
the relevant factors, we find ourselves as frustrated as Berckeley and Shoreline,
for we, as much as they, want to reach the merits of this appeal by Colkitt, who
now finds it to his strategic advantage to undermine his own appeal by delaying
any decision on the merits. But we are stymied because we are unable even to
assess whether the District Court evaluated those factors that might show no
just cause for delay.

36

As an example, were we to assume the District Court intended to enter

judgment under Rule 54(b), we would find little on the current record that
would allow us to review whether the District Court properly made that
judgment. While there was some general discussion of the relationship between
the adjudicated claims of Berckeley and Colkitt and the unadjudicated claims
involving Shoreline, and the District Court did comment on the effect of partial
final judgment on the remaining claims, none of those discussions was in the
context of the application of Rule 54(b). Furthermore, there was no analysis of
the particular factors relating to whether just cause for delay existed, including
"whether the claims under review [are] separable from the others remaining to
be adjudicated and whether the nature of the claims already determined [is]
such that no appellate court would have to decide the same issues more than
once even if there were subsequent appeals." Carter, 181 F.3d at 346 (citing
Curtiss-Wright Corp., 446 U.S. at 8). Indeed, the Sixth Circuit has held that, in
the absence of a statement of reasons explaining the entry of partial final
judgments under Rule 54(b), it will not accord deference to the district court's
determination of the issue. Corrosioneering, Inc. v. Thyssen Envtl. Sys., Inc. ,
807 F.2d 1279, 1282-83 (6th Cir. 1986). We will similarly not accord deference
to the District Court where it has not announced that there is "no just cause for

delay" and did not consider those factors relevant to this inquiry. Indeed, it can
hardly be said that we must accord deference to the District Court, given our
doubt that the Court ever intended to enter a partial final judgment under Rule
54(b).
37

Thus, we abstain from considering the merits of the Fifth Circuit's position in
Kelly until an analogous case, one in which there is an unmistakable intent to
enter judgment under Rule 54(b) but no express determination of "no just cause
for delay," presents itself. For purposes of Colkitt's appeal, we cannot say that
the District Court's orders show any such unmistakable intent. We therefore
find the appeal premature until the District Court enters final judgment as to all
parties and claims or chooses to make an express determination that there is no
just cause for delay of the appeal of the entry of summary judgment. We leave
this determination in the capable hands of the District Court, "the one most
likely to be familiar with the case and with any justifiable reasons for delay."
Bank of Lincolnwood v. Federal Leasing, Inc., 622 F.2d 944, 948 (7th Cir.
1980) (citing Mackey, 351 U.S. at 437).

38

For the reasons noted above, we dismiss this appeal for lack of jurisdiction and
remand to the District Court for further proceedings.

Notes:
*

Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.

The District Court properly took original jurisdiction of this matter pursuant to
28 U.S.C. S 1332(a), as there is complete diversity among the parties and the
amount in controversy exceeds $75,000.

Even had Colkitt not reversed course and argued that our jurisdiction was
lacking, we nevertheless would be required to examine, sua sponte, the basis
for our jurisdiction. See Ortiz v. Dodge, 126 F.3d 545, 547 (3d Cir. 1997);
American Motorists Ins. Co. v. Levolor Lorentzen, Inc., 879 F.2d 1165, 1169
(3d Cir. 1989).

Though Colkitt threatened to take an interlocutory appeal pursuant to 28 U.S.C.

S 1292(b) in his response to the District Court's December 7, 1999 Order, none
of the parties now attempt to justify our jurisdiction under that provision. This
is perhaps because an application for interlocutory appeal must be presented to
this Court within ten days of the District Court's certification of the question of

law. Braden v. University of Pittsburgh, 552 F.2d 948, 950-51 (3d Cir. 1977)
(en banc) ("It is well-settled that the neglect of a party to petition for leave to
appeal within ten days of the entry of the certification order deprives an
appellate court of jurisdiction to consider the petition, and that [Federal Rule of
Appellate Procedure] 26(b) forbids appellate courts to enlarge the time for
filing such a petition." (citation omitted)).
4

While we will typically afford discretion to the District Court's determination

that there is no just cause for delay, see Gerardi v. Pelullo, 16 F.3d 1363, 1368
(3d Cir. 1994); Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 10
(1980), we are presented here with what is solely a question of law entitled to
plenary review -- our interpretation of the requirements of Rule 54(b). See
Griffiths v. CIGNA Corp., 988 F.2d 457, 462 (3d Cir.) (noting that though a
motion for a new trial is ordinarily reviewed for an abuse of discretion, where
the outcome of that motion relies on "legal precepts," the court would engage in
plenary review), cert. denied, 510 U.S. 865 (1993), overruled on other grounds,
Miller v. CIGNA Corp., 47 F.3d 586 (3d Cir. 1995).

The parties do not contest that the District Court ordered the entry of final
judgment as to at least one or more, but less than all, claims or parties. See
Waldorf v. Shuta, 142 F.3d 601, 611 (3d Cir. 1998) ("[a] final judgment is `an
ultimate disposition of an individual claim entered in the course of a multiple
claims action' ") (citing Mackey, 351 U.S. at 436). While the Court's orders
resolve Berckeley's breach of contract claim against Colkitt, see Gerardi, 16
F.3d at 1370, the Court has not terminated the claims of all parties, and thus it
has not entered an appealable final order under 28 U.S.C. S 1291. See Carter,
181 F.3d at 343.

In doing so, we concurred with other courts of appeals that have considered the
question. See Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 166
(11th Cir. 1997); Feinstein v. Resolution Trust Corp., 942 F.2d 34, 39-40 (1st
Cir. 1991); Fuller v. M.G. Jewelry, 950 F.2d 1437, 1441 (9th Cir. 1991);
Pension Benefit Guar. Corp. v. LTV Corp., 875 F.2d 1008, 1015 (2d Cir. 1989),
rev'd on other grounds, 496 U.S. 633 (1990); Bank of Lincolnwood v. Federal
Leasing, Inc., 622 F.2d 944, 948-49 (7th Cir. 1980).

Indeed, the "touch the bases" approach taken by the Kelly dissenters, see Kelly,
908 F.2d at 1223, has merit both because it is consistent with the plain meaning
of Rule 54(b) and because it would result in a predictable process by which
appeals are taken under that rule. See also Taylor v. FDIC, 132 F.3d 753, 760
(D.C. Cir. 1997). That argument proceeds from the recognition that Rule 54(b)
is a simple rule. Its substance is comprised of two sentences. The first sentence
details the mechanism by which a district court may enter partial final summary

judgment. A court must make both an "express determination that there is no

just reason for delay" and an "express direction for the entry of judgment." Fed.
R. Civ. P. 54(b). The word "express" separately modifies both the
determination of no just cause for delay and the direction for the entry of
judgment. Black's Law Dictionary defines "express" as "[c]lear; definite;
explicit; plain; direct; unmistakable; not dubious or ambiguous." Black's Law
Dictionary 580 (6th ed. 1990); see also Kelly, 908 F.2d at 1222 (referring to the
substantially similar definition in Webster's Third New International
Dictionary). "Under this definition, `express determination that there is no just
reason for delay' can mean only one thing: The judge's very words must state
specifically that he or she has decided that there is no just reason for delay."
Kelly, 908 F.2d at 1222. Thus, the argument proceeds, it is self-evident that the
first sentence of Rule 54(b) requires an explicit manifestation that the district
court has determined there is "no just cause for delay" and directing the entry
of final judgment.
The second sentence explains the effect of a district court's failure to comply
with the mechanism detailed in the first. It begins by stating "[i]n the absence
of such determination and direction," thereby echoing the first sentence's
requirements of both an "express determination" that there is "no just cause for
delay" and "express direction" for entry of judgment. The second sentence goes
on to state broadly that any court order that does not comply with both of these
requirements "shall not terminate the action as to any claims or parties" and the
order shall be subject to later revision. As the dissent in Kelly notes, the second
sentence's prohibition applies to all orders, "however designated," thereby
limiting an appellate court's ability to find alternative indicia of finality where
there has not been strict compliance with the rule. "The inclusion of the
`however designated' proscription serves to underscore the importance of the
`express determination' requirement in the [present Rule]. The drafters
apparently viewed this requirement as absolute --one that could not be
circumvented by use of a mere title." Kelly, 908 F.2d at 1226. Furthermore,
while the first sentence permits the district court some discretion by stating it
"may" enter partial final judgment where the two requirements are met, the
second sentence's use of the word "shall" arguably allows no discretion for an
appellate court to take jurisdiction pursuant to 28 U.S.C. S 1291 where those
requirements are deficient. See Miller v. French, 120 S. Ct. 2246, 2253 (2000)
(discussing the difference between "shall" and "may" in statutory
interpretation).
The Supreme Court and this Court have repeatedly held that the Federal Rules
of Civil Procedure, like any other statute, should be given their plain meaning.
Business Guides, Inc. v. Chromatic Communications Enters., Inc., 498 U.S.
533, 540 (1991); Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S.

120, 123 (1989); Walker v. Armco Steel Corp., 446 U.S. 740, 750 n.9 (1980);
United States v. Nahodil, 36 F.3d 323, 328 (3d Cir. 1994). "As with a statute,
our inquiry is complete if we find the text of the Rule to be clear and
unambiguous." Business Guides, Inc., 498 U.S. at 540-41.
The manner in which we dispose of this case does not require us to address,
head on, the issue presented in Kelly . Thus, we leave for another day deciding
whether the words "no just cause for delay" are required in haec verba to confer
appellate jurisdiction under Rule 54(b).