Counts & Claims for Rule 54(b) Appeals

In Scott v. Advanced Pharmaceutical Consultants, Inc., the Eleventh Circuit reversed the entry of a partial judgment under Federal Rule of Civil Procedure 54(b). The district court had resolved most (but not all) of the counts pleaded in the plaintiff’s complaint. But the district court’s rejection of those counts did not resolve a distinct “claim” for purposes of Rule 54(b). All of the counts stemmed from the same events and involved similar remedies for a single injury. So the counts were instead different causes of action—different theories of recovery—for the same claim. They were not severable for purposes of Rule 54(b).

The Counts in Scott

The plaintiff in Scott alleged that she was wrongfully terminated from her job. She sued two defendants—her direct employer and the company that contracted with her employer. The complaint contained four counts: “violations of the Florida Private Whistleblower Act and Florida Public Whistleblower Act against both defendants, and violations of the False Claims Act and intentional interference with her advantageous business relations against one defendant.” (Cleaned up.)

The district court eventually granted summary judgment to the defendants on all but one of those counts: the tortious-interference one that involved only one defendant. The district court then entered a partial judgment under Federal Rule of Civil Procedure 54(b) on the resolved counts. It also certified for an immediate appeal under 28 U.S.C. § 1292(b) its decision to deny summary judgment on the one remaining count.

Partial Judgments Under Rule 54(b)

Normally, the resolution of only some claims in a single action is not a final, appealable decision. That comes once the district court has resolved all of the claims. But sometimes it makes sense to allow an immediate appeal from the resolution of some claims. Enter Rule 54(b).

Rule 54(b) permits district courts to enter an appealable judgment on the resolution of some (but not all) claims in multi-claim/multi-party actions:

When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may 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.

The courts of appeals occasionally inquire into a district court’s decision to enter a Rule 54(b) judgment. The standard of review is mixed. Appellate courts decide for themselves whether the district court’s decision was eligible for a partial judgment. (The Eleventh Circuit calls this step determining whether “a partial adjudication amounts to a final judgment,” which is probably not entirely accurate. The real question is whether the partial adjudication resolves one or more claims. Talking about “final judgments” in this context is unnecessary and potentially misleading.) If the decision was eligible for a partial judgment, appellate courts then defer to the district court’s decision to enter that judgment.

Claims, Not Counts

In Scott, the Eleventh Circuit determined that part of the district court’s decision was not eligible for a Rule 54(b) partial judgment.

To be sure, part of the decision was. The district court had dismissed all claims against one defendant and thus dismissed that defendant entirely. That part of the district court’s decision resolved an entire claim.

But the district court had not resolved an entire claim against the other defendant. Recall that one count remained pending. And both the dismissed and remaining counts concerned the same “claim.” They all stemmed from the same events (the plaintiff’s termination) and sought a similar remedies (compensatory damages) for the same injury (again, the plaintiff’s termination). The counts thus involved different legal theories but the same claim. No matter how many counts the plaintiff prevailed on, she would obtain largely the same relief.

The counts were thus not separable claims. They all stemmed from a single claim. The district court therefore could not enter a Rule 54(b) partial judgment on the resolved counts.

A Few Other Jurisdictional Points

The Eleventh Circuit went on to hold that the district court had abused its discretion in entering a Rule 54(b) partial judgment for the resolution of all claims against one defendant. Those claims substantially overlapped with those still pending against the other defendant. So any appeal of that decision should happen alongside the district court’s resolution of those pending claims.

As to the certified appeal under 28 U.S.C. § 1292(b), the defendant never asked the Eleventh Circuit for permission to appeal. The failure to do so was a jurisdictional bar to appellate review.

A Few Thoughts

Scott contains a nice explanation of the difference between counts and claims for purposes of Rule 54(b). I am often sloppy in using the term “claims” to refer to what are really different “counts” or “causes of action”—different legal theories seeking recovery for the same injury. Scott is a good reminder that precision matters.

I do, however, have one quibble with the decision (and no stronger word than quibble is appropriate). In support of its conclusion that the resolved counts involved a single claim, the court pointed to the plaintiff’s prayer for relief:

Indeed, her complaint included only a single “prayer of relief” that did not draw any distinction between the relief sought for the different counts alleged.

I don’t find this terribly persuasive on the count-versus-claim point. I have to imagine that a single prayer for relief is relatively common (feel free to correct me if I’m wrong), even in actions that truly involve multiple claims. Hopefully courts won’t rely on this point in the future when distinguishing counts and claims.

Thanks to Andrew Pollis for sending this case to me. Anyone interested in Rule 54(b) should check out Andrew’s article Civil Rule 54(b): Seventy-Five and Ready for Retirement.

Scott v. Advanced Pharmaceutical Consultants, Inc., 2023 WL 6817369 (11th Cir. Oct. 17, 2023), available at the Eleventh Circuit and Westlaw