MEMORANDUM OPINION AND ORDER Before the Court is a motion for Federal Rule of Civil Procedure 54(b) certification and to stay this case, filed by Plaintiff, John Galvan ("plaintiff") [dkt. 118]. Plaintiff filed this motion after we granted defendant Krueger International, Inc.'s ("defendant") motion for summary judgment, which was directed at Count I of plaintiff's complaint for strict product liability. So the only claim left for trial is Count II of plaintiff's complaint, for negligence. Because this motion immediately follows our ruling on the motion for summary judgment, we will dispense with any recitation of the facts and simply refer back to our previous Order.
In the present motion, plaintiff argues that the Court should certify for immediate appeal to the Seventh Circuit our ruling that dismissed the strict liability claim. In support, plaintiff claims that there exists some danger of hardship to plaintiff should the appellate court reverse, and plaintiff be required to re-try his case for a second time. We disagree.
Defendant submitted a supplemental brief on this issue and, as it noted, Rule 54(b) certification is not applicable here. To be appealable, our ruling on Count I must be a final judgment. Rule 54(b) provides that,
[w]hen 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.*fn1 To be a "judgment" per the rule it must be a "decision upon a cognizable claim for relief" and to be "final" it must be "'an ultimate disposition of an individual claim entered in the course of a multiple claims action.'"*fn2 The court then must determine whether there is "no just reason for delay."*fn3
As noted by the Seventh Circuit, to determine whether Rule 54(b)
applies to a given case, the critical question is whether more than
one claim for relief is presented. In this case there are two claims
alleged: strict product liability and negligence. If these two counts
constitute one claim for relief for purposes of Rule 54(b), then we
are required to resolve both counts before the case is
appealable.*fn4 The purpose behind the confined scope
of Rule 54(b) is to "'spare the court of appeals from having to keep
relearning the facts of a case on successive appeals.'"*fn5
The Seventh Circuit explains, therefore, that they have
adopted a standard that focuses on the degree of "factual
overlap" between the claim being certified for appeal and the issues that would
remain before the district court.*fn6
Similar to the Seventh Circuit's analysis in Indiana Harbor Belt R.
Company v. American Cyanamid Company,*fn7 this case
does not present a difficult question on this point. Plaintiff has
sought relief in the form of damages for medical expenses related to
his injury. In support of his asserted right to recover those damages,
plaintiff has offered two legal theories. Because "mere variations of
legal theory do not constitute separate claims"*fn8
plaintiff's possible recovery under his strict liability claim, for
example, would satisfy, in full, his claim for relief.*fn9
It is settled that when a party appeals from the dismissal of
one of many different counts, courts agree that it is sound to
prohibit an immediate appeal because "the party attempting to appeal
may still be awarded relief on one or more of the counts which were
not dismissed..."*fn10 As in Indiana Harbor, this case
does not present an exception to the general rule that "mere
alternative legal theories constitute only one claim for relief for
purposes of Rule 54(b)."*fn11
Though we need not address the second step in the process - whether there is any just reason for delay - a brief mention is worthwhile. As stated by the Supreme Court of the United States, even if a court determines that there is a "final judgment" for purposes of Rule 54(b), "not all final judgments on individual claims should be immediately appealable."*fn12 The district court acts as a "dispatcher" and must use its discretion to determine when a decision is ready for appeal.*fn13 The Supreme Court has, therefore, refused to "fix or sanction narrow guidelines" for district courts to follow when ruling on Rule 54(b) requests.*fn14 Here we find the issues presented in both Counts to be so similar that subsequent appeals would be unnecessary, and would certainly be duplicative work for the court of appeals.
Finally, because we stated that we would also construe plaintiff's motion as a motion to reconsider, we must briefly address plaintiff's supplemental brief on this point. Unfortunately, plaintiff does nothing more than reargue the issues in the motion for summary judgment, which is not permissible.*fn15 Plaintiff again asserts that defendant did not establish, in its original motion, the exact date of delivery of possession to the United States Postal Service ("USPS") for purposes of the statute of repose. Plaintiff reiterates that defendant has the burden of establishing that the date of delivery of possession of the chair apparatus to the USPS was outside of the repose period. But because, plaintiff argues, defendant did not, the burden did not shift back to plaintiff (as the non-moving party).
We, however, read the standard for a motion for summary judgment differently. As the moving party, we agree that defendant has the initial burden of informing the court of the basis for its motion, and must identify the portions of "'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,'" that it believes demonstrate the absence of a genuine issue of material fact.*fn16 The nonmoving party, though, must also go beyond the face of the pleadings, affidavits, depositions, and admissions on file to demonstrate, through specific evidence, that there remains a genuine issue of material fact.*fn17 More specifically, the non-movant must show that a rational jury could return a verdict in its favor.*fn18 And because defendant would have the burden of establishing its defense, that the statute of repose applies, it must establish "affirmatively the lack of 'sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.'"*fn19 In other words, defendant must show that the evidence of its defense is so "one-sided" that it must prevail as a matter of law.*fn20
We believe that it did. Plaintiff would prefer a standard that requires defendant to present direct evidence showing the exact date of delivery and, if it cannot (or if such evidence does not exist), then plaintiff believes he has a right to trial so that he can argue that the apparatus may not have been delivered before the applicable date. But the grant of summary judgment has never required only the showing of direct evidence. Where direct evidence is unavailable, cases are often proven by circumstantial evidence. In fact, circumstantial evidence can be "'of equal probative value to direct evidence'" or even more reliable.*fn21
In this case, defendant had the initial burden to show that "delivery of possession"*fn22 occurred within "10 years from the date of the product's first sale to an initial user."*fn23 We acknowledged in our original summary judgment ruling that defendant presented no direct evidence of delivery on December 3, 1993, or thereafter. Defendant, rather, submitted multiple documents evidencing that the apparatus shipped directly to the USPS on December 3, 1993, from a location that was less than 200 miles from the USPS location. Plaintiff responded with nothing. Plaintiff argued then, and now, that because there is no certainty (i.e., direct evidence) that the apparatus actually arrived on December 3, 1993, or within two months thereafter, a fact question exists warranting a jury determination. But that is not the summary judgment standard. There must be a "genuine issue" for the case to proceed to trial.*fn24 "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts."*fn25 However theoretically possible it might be that the apparatus left the manufacturer but then did not arrive at its destination for over two months, "[plaintiff] must flesh out [his] theory with evidence; speculation will not do."*fn26 With no contrary evidence from plaintiff, a reasonable factfinder could not determine that the apparatus failed to arrive at the USPS - as was indicated on the shipping documents - on or around December 3, 1993. Without "some evidence calling into question the accuracy of [defendant's] representations on this subject, we accept them as true for summary judgment purposes."*fn27 We, therefore, find that defendant met its burden.
As a final note, the case relied upon by plaintiff, Baugh ex rel. Baugh v. Cuprum S.A. de C.V.,*fn28 only supports this finding. In that case, the plaintiff was seriously injured when he allegedly fell from a defective ladder, though he did not remember falling and no one saw the cause of the accident. The defendants sought summary judgment arguing that the facts did not support the inference that there was a defect in the ladder. The court, however, disagreed. The court relied on circumstantial evidence, such as witness testimony of the scene after plaintiff's accident and testimony by the first responders.*fn29 The court held that such evidence established a genuine issue of material fact as to whether the plaintiff's accident was caused by the failure of the ladder.*fn30 As that court noted, to avoid summary judgment the non-movant must do more than "raise a 'metaphysical doubt' as to the material facts," and because plaintiff had done so - by presenting evidence that linked the accident to the ladder (though there was no direct evidence that the ladder caused the accident) - the court denied summary judgment.*fn31
We, therefore, conclude that plaintiff is simply incorrect when he claims that defendant's evidence "did nothing to establish, or even suggest by inference, the date of delivery of possession to the USPS."*fn32 To the contrary, defendant put forth circumstantial evidence to show just that. And plaintiff has failed to show - both during the original briefing on the motion for summary judgment and now - any evidence that would permit a reasonable factfinder to find delivery did not, in fact, occur. Plaintiff's speculation that the delivery may not have occurred in that two month time period after shipment is simply insufficient in opposition to defendant's substantial evidence that the apparatus left the manufacturer on December 3, 1993.*fn33