United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
D. Noce, United States Magistrate Judge
the court are two pretrial motions of the defendants: (1) to
amend this court's October 18, 2016 order to add a
certification for interlocutory appeal or, in the
alternative, for entry of a final judgment as to their Count
4 counterclaim of public disclosure of private financial
information (ECF No. 116); and (2) to bifurcate the trial of
this action into a nonjury trial of plaintiff's claim for
a declaratory judgment and a jury trial of defendants'
breach of contract and vexatious refusal claims (ECF No.
118). Both motions are denied.
for interlocutory appeal
seek an interlocutory appeal under 28 U.S.C. § 1292(b).
Section 1292(b) permits the district court to certify an
order for interlocutory appeal, if it is “of the
opinion that such order involves a controlling question of
law as to which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation.” 28 U.S.C. § 1292(b). Section 1292(b)
criteria do not apply to the October 18, 2016, order
dismissing defendants' Count 4 counterclaim.
Defendants' Count 4 state law claim for public disclosure
of private facts is distinct from their other claims, and an
appeal would have no substantial effect on the ultimate
determination of those claims. Accordingly, the motion for
certification for interlocutory appeal is denied.
court also denies defendants' request for entry of an
appealable final judgment. Federal Rule of Civil Procedure 54
allows the court to “direct entry of a 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.” Fed.R.Civ.P. 54(b). In determining
whether there is no just reason for delay, the court is to
consider the equities of the situation and judicial
administrative interests, especially the prevention of
piecemeal appeals. McAdams v. McCord, 533 F.3d 924,
927 (8th Cir.2008). Appeals certified under Rule 54(b) are
generally disfavored. Clark v. Baka, 593 F.3d 712,
714 (8th Cir. 2010). The Eighth Circuit has held that only
the special case warrants an immediate appeal of a partial
disposition of an action. Interstate Power Co. v. Kansas
City Power & Light Co., 992 F.2d 804, 807 (8th Cir.
1993). An important factor in determining whether a case
ought to be immediately appealed is whether "there is
some danger of hardship or injustice which an immediate
appeal would alleviate.” Baka, 593 F.3d at
715. While the defendants' Count 4 counterclaim is
distinct from their other claims, defendants have not
established any potential substantial danger of hardship or
injustice that would occur by waiting for the resolution of
the entire case. Accordingly, defendants' alternative
motion is also denied.
for separate trials
also seek an order that plaintiff's claim for a
declaratory judgment be tried first without a jury, then to
be followed by a jury trial of their counterclaims for breach
of the insurance policies and vexatious refusal. Plaintiff
commenced this action with its claim for a declaratory
judgment. At base, plaintiff alleged defendants breached the
applicable insurance policies, claims on which plaintiff
could have demanded a jury. See Smith Flooring, Inc. v.
Pa. Lumbermens Mut. Ins. Co., 713 F.3d 933, 936-37 (8th
Cir. 2013). However, it did not demand a jury in its
complaint (ECF No. 1), and thereby waived one. Fed.R.Civ.P.
on its own motion the court is authorized to submit the
factual allegations of plaintiff's claim to an advisory
jury. Fed.R.Civ.P. 39(c). But it need not do so, because
those same issues of fact are set to be tried to a jury as a
matter of right on defendants' counterclaims for breach
of the same insurance policies and for vexatious refusal. The
court intends to submit the factual issues on all
parties' claims to a jury on a special verdict form.
Fed.R.Civ.P. 49. The jury's answers to the special
verdict questions will inform the court on the proper
judgment to be issued not only on defendants'
counterclaims but also on plaintiff's claim for a
declaration of the relative rights of the parties. Nor-W.
Cable Commc'ns P'ship v. City of St. Paul, 924
F.2d 741, 745 (8th Cir. 1991) (“Where a case has been
submitted to the jury on special verdicts . . . the
jury's findings are usually binding on the district court
unless they are against the weight of the evidence.”).
argue that separate trials are necessary to avoid jury
confusion when certain evidence is offered on their vexatious
refusal claim, which evidence is not admissible on the
parties' breach of contract claims. The court is
confident that, with the assistance of counsel on both sides,
it can properly instruct the jury on the purpose for which
any evidence may be considered and for which it may not be
considered. Fed.R.Evid. 105; United States v.
Wisecarver, 598 F.3d 982, 989 (8th Cir. 2010) (ruling
that jurors are presumed to follow all court instructions);
cf. Joiner v. Auto-Owners Mut. Ins. Co., 891 S.W.2d
479 (Mo.Ct.App. 1995).
these reasons, IT IS HEREBY ORDERED that the motion of
defendants to amend the October 18, 2016, order to allow for
an interlocutory appeal, or in the alternative for an entry
of final judgment (ECF No. 116) is DENIED.
FURTHER ORDERED that the motion of defendants for separate
trials (ECF No. 118) is DENIED.
FURTHER ORDERED that the parties' final pre-trial
conference is set for November 8, 2016, at 1:30 p.m., with
jury selection to commence on November 9, 2016, at 9 ...