The Timeliness of a Rule 54(b) Partial Judgment

When an action involves multiple claims, appeals normally must wait until the district court has resolved all of claims. Federal Rule of Civil Procedure 54(b) is one exception to this general rule. It permits a district court to enter a partial judgment on the resolution of some (but not all) claims in an action. That partial judgment is then a final, appealable decision.

What is the deadline for seeking a Rule 54(b) partial judgment? Two Seventh Circuit decisions (one from 1972, the other from 2017) held that the request must come within 30 days of the district court’s decision. Late-filed Rule 54(b) motions required reversing the partial judgment and dismissing the appeal.

But in Wednesday’s DaSilva v. Indiana, the Seventh Circuit determined that this 30-day deadline is not jurisdictional. It is instead a claims-processing rule. So a delayed request for a Rule 54(b) partial judgment does not affect appellate jurisdiction. And an appellee can forfeit any objection to a late-filed Rule 54(b) motion.

The Seventh Circuit also questioned the 30-day limit itself. Although the procedural rules are lousy with deadlines, Rule 54(b) does not contain one. DaSilva ultimately did not require the Seventh Circuit to determine whether the 30-day deadline should exist. It was enough to say that Indiana forfeited any objection. The court suggested, however, that any timeliness issues might best be addressed by asking whether the district court abused its discretion in entering the Rule 54(b) partial judgment.

Rule 54(b) Partial Judgments

In multi-claim actions (whether they involve multiple claims against a single party, claims against multiple parties, or both), a final decision normally does not come until all claims have been resolved. That’s because the resolution of only some claims leaves more to be done in the district court—namely, resolution of the other claims. If litigants want to appeal from the resolution of only some claims, they can seek a partial judgment under Federal Rule of Civil Procedure 54(b). That partial judgment is then final and appealable. And these partial final judgments are appropriate when there is (in the rule’s words) “no just reason for delay[ing]” an appeal of the resolved claims. For example, one party might have been involved only claims that the district court resolved and were unrelated to other, pending claims. It might be wise to allow an immediate appeal of those resolved claims rather than force that party to wait until all other claims are decided.

Rule 54(b) does not impose any deadline on motions for a partial judgment. Nor does any other procedural rule. Federal Rule of Appellate Procedure 4 sets out the time to appeal after the entry of a judgment. So Rule 4 applies only after the district court has entered the partial judgment. Federal Rule of Appellate Procedure 5 sets out the time to request permission to appeal (if the statute or rule authorizing the appeal does not have its own time limit). But Rule 54(b) does not create a discretionary appeal.

In a pair of decisions, the Seventh Circuit imposed a 30-day deadline on Rule 54(b) motions. In 1972’s Schaefer v. First National Bank of Lincolnwood, the plaintiffs waited three months to request a Rule 54(b) partial judgment, and the district court waited about a year to enter that judgment. The Seventh Circuit noted that this lack of diligence made it hard to conclude that there was no just reason for delay. The court of appeals also invoked Rule 4 to hold that requests for partial judgments should normally come within the normal appeal deadline. The Seventh Circuit ultimately held that the district court abused its discretion in entering the Rule 54(b) partial judgment and dismissed the appeal. The court reiterated this hold in 2017’s King v. Newbold.

The Late Rule 54(b) Motion in DiSilva

The plaintiffs in DiSilva were employees in the Indiana House or Senate who attended the legislature’s annual end-of-session party. The state’s attorney general appeared at that party, verbally harassed some female attendees, and then physically harassed them. (The Supreme Court of Indiana later found that the attorney general had committed criminal battery and behaved unethically, and it suspended his law license.)

The plaintiffs brought employment-discrimination claims against the state of Indiana. The Indiana House and Senate intervened, arguing that they were the proper defendants as the plaintiffs’ employer. The district court dismissed the claims against the state because it was not the plaintiffs’ employer.

Thirty-nine days later, the plaintiffs sought and obtained a Rule 54(b) partial judgment on the dismissal of Indiana. They then appealed. Indiana initially said nothing about the delayed Rule 54(b) motion. But in its response brief, the state objected that the motion was untimely.

The Jurisdictionality of a Late Rule 54(b) Motion

The Seventh Circuit concluded that Schaefer and King’s 30-day deadline was not jurisdictional. It went on to conclude that Indiana had forfeited its objection.

The Seventh Circuit pointed out that shortly after King, the Supreme Court held in Hamer v. Neighborhood Housing Services that time limits in procedural rules are not jurisdictional. They’re instead claims-processing rules. And they can be waived or forfeited. Further, the Seventh Circuit held on remand in Hamer that objections to claims-processing rules must be made in the parties’ docketing statements. Objections that appear for the first time in briefs come too late.

There’s no statutory deadline for Rule 54(b) motions. (Indeed, there’s no express deadline for those motions anywhere.) So any time limit would be only a claims-processing rule. And Indiana objected to the timeliness of the plaintiffs’ Rule 54(b) motion in its response brief. The objection was therefore forfeited.

Questioning any Timeline for Rule 54(b) Motions

The Seventh Circuit went on to question whether there was any set deadline for requesting a Rule 54(b) partial judgment. As just noted, Rule 54(b) does not include a deadline. And no other procedural rule imposes one.

Any delay in seeking a partial judgment, the court suggested, should instead affect the propriety of that partial judgment. The courts of appeals can review the entry of a Rule 54(b) partial judgment for an abuse of discretion. And as Schaefer noted, delay in seeking a Rule 54(b) partial judgment raises questions about whether there is any just reason for delaying the appeal.

But a bright-line deadline—like that imposed in Schaefer and approved in King—does not jive with a discretionary decision. “Bright-line rules and abuse-of-discretion standards are almost opposites in legal practice”:

Consider two situations. In the first, a decision is announced on date t, a litigant asks for a Rule 54(b) judgment on date t + 10, and the district judge enters that judgment on date t + 100. In the second, a decision is announced on date t, a litigant asks for a Rule 54(b) judgment on date t + 31, and the district judge enters that judgment on date t + 32. What sense could it make to say that the second is forbidden while the first is not, even though the first entails substantially longer delay? If there is to be an outer limit marking an abuse of discretion, that should reflect the total time between decision and Rule 54(b) judgment, not how much of that time can be laid at one party’s doorstep.

Ultimately, the Seventh Circuit did not need to address the propriety of Schaefer and King’s 30-day deadline. It was enough to say that this deadline was not jurisdictional and that Indiana had forfeited any objection to it.

DaSilva v. Indiana, 2022 WL 1024210 (7th Cir. Apr. 6, 2022), available at the Seventh Circuit and Westlaw.