The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Tuesday, 23 August, 2011 03:54:19 PM Clerk, U.S. District Court, ILCD
Now before the Court are: Plaintiff's Motion for Entry of Judgment under Rule 54(b)(Doc.#164) and Plaintiff's Motion to Dismiss Counts II, III, and IV against JESCO Without Prejudice (Doc. #166). These motions were discussed at a hearing held on August 18, 2011, at which time the Court was advised that there was no opposition to these motions. As stated below, both motions are GRANTED.
Plaintiff ("RMS") originally filed 4 counts against Jesco. This Court has granted summary judgment in favor of RMS and against Jesco as to Count I. RMS now moves for dismissal of the other 3 counts (Counts II, III and IV) as those Counts were "alternative counts" to Count I. There being no opposition to this motion, the Motion is GRANTED. Counts II, III and IV are dismissed without prejudice, parties to bear their own costs.
RMS settled its dispute with Henderson County, entered into a consent judgment, and filed a Joint Motion for Entry of Final Judgment (D121). That Motion was granted on Jan. 14, 2011 (#139). Judgment was entered in favor of RMS and against Henderson County on January 18, 2011. (Doc. #141). This judgment was subsequently amended on March 17, 2011 (Doc. #161).
On March 14, 2011, summary judgment was entered in favor of RMS and against defendant Jesco Construction Company ("Jesco") as to its breach of contract claim only. See Order (Doc. #157). That order was not, however, a final and appealable order, because there remained other claims and cross claims between and among the parties. Plaintiff has now filed its Rule 54(b) motion, seeking to finalize these Orders.
Rule 54(b) provides in pertinent part:
When an action presents more than one claim for relief - whether as a claim counterclaim, cross-claim, 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.
There are 3 prerequisites for entry of a Rule 54(b) judgment: the action must include separate claims; there must be a final decision as to at least one of these claims, and there must be "no just reason for delay." Fed.R.Civ.P. 54(b); see, Stearns v. Consolidated Mgt. Inc., 747 F.2d 1105, 1108 (7th cir. 1984).
The complaint in this case included two counts against Henderson County (Count V for breach of third party beneficiary contract and Count VI for unjust enrichment) and 6 counts against Jesco. The partial judgment as to the claims against Henderson County finalized resolution of Count VI; the parties dismissed Count V. The Court has granted summary judgment against Jesco as to Count I, and RMS has moved, concurrently with this pending motion, to dismiss the remaining counts II, III and IV against Jesco.
RMS's claim against Jesco for breach of contract is certainly separate and distinct from RMS's claims against Henderson County. They are based on separate contracts altogether: RMS's contract with Jesco, and Jesco's contracts with the governmental entities. See, e.g., FDIC v. Elefant, 790 F.2d 661, 664 (7th Cir. 1986). One contract is governed by Illinois law, the other by Delaware law. The fact that there is some factual overlap does not ...