# William C. Feinstein v. Resolution Trust Corporation, Etc. > Court of Appeals for the First Circuit · August 13, 1991 · 942 F.2d 34 URL: https://www.frixlaw.com/law-library/cases/9481974 ## Case - **Full name:** William C. FEINSTEIN, Et Al., Plaintiffs, Appellants, v. RESOLUTION TRUST CORPORATION, Etc., Et Al., Defendants, Appellees - **Court:** Court of Appeals for the First Circuit - **Decided:** August 13, 1991 - **Citations:** 942 F.2d 34; 20 Fed. R. Serv. 3d 1093; 1991 U.S. App. LEXIS 18518 - **Precedential status:** Published - **Opinion:** Dissent by Cyr - **Judges:** Selya, Cyr, Keeton - **Cited by:** 239 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Salinas v. United States, 522 U.S. 52 (1997). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9481974 ## How later opinions describe it (automated extraction) - recognizing that "Although the complaint made a ritualistic averment, in wholly conclusory terms, that the defendants, including the appellees, `constitute[d] an enterprise ostensibly engaging in the business of buying, selling, mortgaging, hypothecating, exchanging and pledgi… - stating that “since federal question jurisdiction hinged on that [dismissed] count, and there was no complete diversity of citizenship or other cognizable basis for the assertion of subject matter jurisdiction in the district court, the pendent state law claims were properly d… - recognizing that predicate acts with the "same or similar purposes, results, participants, victims, or methods of commission" or that are "otherwise . . . interrelated by distinguishing characteristics and . . . not isolated events" are related (quoting H.J., 492 U.S. at 240 ) - holding that acts of mail and wire fraud taking place over two years and involving different defendants were not part of a common scheme - noting that where “the affected defendant does not insist that the jurisdictional issue be determined first, . . . we cannot fault the district court for eschewing difficult jurisdictional and venue-related issues in favor of ordering dismissal on the merits” ## Opinion text CYR, Circuit Judge (dissenting). In my view the majority undermines the core imperative of rule 54(b): a district court may direct entry of final judgment under rule 54(b) “only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.” Fed.R.Civ.P. 54(b) (emphasis added). 1 Only by disregarding the plain language of the rule and its principal purpose — safeguarding the policy against piecemeal appellate review, see, e.g., Makuc v. American Honda Motor Co., 692 F.2d 172, 173-74 (1st Cir.1982) (per curiam) — can mere entry of an otherwise interlocutory order be considered a sufficient basis for an appellate court to infer that the district court correctly made the required determination and direction, let alone that it did so expressly. 2 *48 The majority opinion demonstrates the difficulties encountered when an appellate court attempts to infer that a district court has taken express action sub silentio. Yet the court dispenses with the “simple, definite, workable” requirements of the rule, as well as the important policy it serves, see Notes of the Advisory Committee to the 1946 Amendment to Rule 54, not to mention our own supplementary monition aimed at fostering compliance and facilitating effective appellate review, see Spiegel v. Trustees of Tufts College, 848 F.2d 38, 42-43 (1st Cir.1988) (when “the district court concludes that entry of judgment under Rule 54(b) is appropriate, it should ordinarily make specific findings setting forth the reasons for its order.”) (citations omitted). I write separately not so much to emphasize our differences as to urge a stance on an interpretive principle which might offer the prospect of firmer footing for courts whose responsibility it is to discern our course. Sometimes rules of procedure are perceived as mere formalities, even when important prudential policies are at stake; while their enforcement may on occasion entail an unwelcome appearance of wooden decisionmaking, the alternative is to spare the ritual and spoil the rule. 3 I respectfully dissent. . Rule 54(b) goes on to say, in language no less clear: 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. Fed.R.Civ.P. 54(b) (emphasis added). . Although it is clear that rule 54(b) invokes the discretion of the district court, Little Earth of United Tribes, Inc. v. United States Dept. of Housing & Urban Dev., 738 F.2d 310 , 313 (8th Cir.1984) (per curiam), not the court of appeals, the record fails to disclose a sound basis for inferring that the district court made the required determinations respecting the appropri *48 ateness of an immediate appeal. True, the motions for entry of judgment were endorsed by the district judge, but neither they nor the accompanying memoranda articulated particular grounds for concluding that piecemeal review should be permitted in this case. See Panichella v. Pennsylvania R.R. Co., 252 F.2d 452, 455 (3d Cir.1958) (the trial judge is required to exercise a "considered discretion, weighing the overall policy against piecemeal appeals against whatever exigencies the case at hand may present.”). . Normally, the procedure prescribed by rule 54(b) is no mere formality. Panichella, 252 F.2d at 455 ("The power which this Rule confers upon the trial judge should be used only ... as an instrument for the improved administration of justice and the more satisfactory disposition of litigation in the light of the public policy indicated by statute and rule.”) (citations omitted). See abo Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 9-12 , 100 S.Ct. 1460, 1465-67 , 64 L.Ed.2d 1 (1980). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9481974. Public record. Not legal advice.