United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the Court on Third-Party Plaintiff, City
of Mounds' Amended Motion (Doc. 71) for Default Judgment
and Motion (Doc. 76) to Strike Third-Party Defendant Keith
Moran's Response (Doc. 74) in Opposition to the Amended
Motion for Default Judgment.
April 21, 2010, Plaintiff Westmore Equities, LLC
(“Westmore”) entered into a Redevelopment
Agreement with Defendant City of Mounds for the development
of certain property located in Mounds, Illinois. Westmore was
reimbursed for funds expended in 2013, but when it requested
reimbursement in 2014, Westmore was notified that the
contract was void because it was never approved by the
Mounds' City Council. According to the City of Mounds, it
entered into the agreement with Westmore based on the advice
and guidance of DMI and its members, Keith Moran, Eric White
and Deborah Prosser-White.
filed suit seeking a declaration pursuant to 28 U.S.C. §
2201 that the contract is valid and binding, or in the
alternative, relief from Waymon Butler, Jr., the City of
Mounds' mayor, and Robin Barksdale, the city's clerk,
for breach of warranty of authority. (Doc. 1). The Court
notes that defendants Butler and Barksdale have been
dismissed pursuant to the Illinois Local Governmental and
Governmental Employees Tort Immunity Act (“Tort
Immunity Act”)(745 ILSC 10/1-101, et.
City of Mounds filed a third-party Complaint (Doc. 22)
against the third-party defendants claiming that they
violated the Tax Increment Allocation Redevelopment Act
(“TIF Act”, 65 ILCS 5/11-74.4-1, et
seq.); the Uniform Fraudulent Transfer Act
(“UFTA”, 740 ILCS 160/1, et. seq.); and
for contribution. Third-Party defendants Development &
Municipal Initiatives, LLC, Deborah Prosser-White and Eric
White failed to answer the Third-Party Complaint or to
otherwise plead and a Clerk's Entry of Default (Doc. 50)
was entered on June 19, 2015. It is noted that Third-Party
Plaintiff City of Mounds filed a Motion (Doc. 45) for Default
Judgment on June 15, 2015 which the court denied for failure
to comply with Local Rule 55.1. (Doc. 70).
Defendant Keith Moran filed a Motion (Doc. 41) to Dismiss
Counts I and III which the Court granted (Doc. 70) and
allowed Third-Party Plaintiff 30 days to amend the
Plaintiff then filed the Amended Motion for Default Judgment
(Doc. 71) followed by an Amended Third Party Complaint (Doc.
regard to Amended Motion for Default Judgment, the claims
against defendant City of Mounds and Third-Party Defendant
Keith Moran are still pending. Any judgment entered by the
Court against Third-Party defendants Development &
Municipal Initiatives, LLC, Deborah Prosser-White and Eric
White at this stage in the litigation must be pursuant to
Federal Rule of Civil Procedure 54(b), which permits the
Court to certify for appeal a judgment resolving all claims
against a party. See General Ins. Co. of Am. v. Clark
Mall Corp., 644 F.3d 375, 379 (7th Cir. 2011);
National Metalcrafters, Div. of Keystone Consol. Indus.
v. McNeil, 784 F.2d 817, 821 (7th Cir. 1986). Rule 54(b)
Judgment on Multiple Claims or Involving Multiple Parties.
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. Otherwise,
any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
determining whether to grant judgment under Rule 54(b), the
Court must first determine whether the judgment is final in
the sense that it is “‘an ultimate disposition of
an individual claim entered in the course of a multiple
claims action.'” Curtiss-Wright Corp. v.
General Elec. Co., 446 U.S. 1, 7 (1980) (quoting
Sears, Roebuck & Co. v. Mackey, 351 U.S. 427,
436 (1956)); accord General Ins. Co., 644 F.3d at
379. Then, the Court must determine whether there is any just
reason for delay, taking into account the interests of
judicial administration and the equities involved.
Curtiss-Wright, 446 U.S. at 8; General Ins.
Co., 644 F.3d at 379; Schieffelin & Co. v.
Valley Liquors, Inc., 823 F.2d 1064, 1065-66 (7th Cir.
attempting to prevent piecemeal litigation, the Court should
“consider such factors as whether the claims under
review [are] separable from the others remaining to be
adjudicated and whether the nature of the claims already
determined [is] such that no appellate court would have to
decide the same issues more than once even if there were
subsequent appeals.” Curtiss-Wright, 446 U.S.
at 8; see ODC Commc'ns Corp. v. Wenruth Invs.,
826 F.2d 509, 512 (7th Cir. 1987).
decision to certify a final judgment as to fewer than all
claims in a case is left to the sound discretion of the
district court. Curtiss-Wright, 446 U.S. at 8;
Schieffelin, 823 F.2d at 1065. However, district
courts are not to utilize Rule 54(b) unless there is a good
reason for doing so. United States v. Ettrick Wood
Prods., Inc., 916 F.2d 1211, 1218 (7th Cir. 1990).
Ordinarily, a default judgment should not be entered against
one defendant until the matter has been resolved as to all
defendants. Home Ins. Co. of Ill. v. Adco Oil Co.,
154 F.3d 739, 741 (7th Cir. 1998) (citing Frow v. De La
Vega, 82 U.S. (15 Wall.) 552 (1872)). Where claims are
substantively intertwined - such as, for example, where the
pending claims factually overlap with those for which a Rule
54(b) judgment is sought - a Rule 54(b) judgment is
inappropriate. See General Ins. Co., 644 F.3d at 380
(citing Horn v. Transcon Lines, Inc., 898 F.2d 589,
593- 95 (7th Cir. 1990)). In this matter, the initial claims
and the third-party claims are substantively intertwined and
a Rule 54(b) judgment would not be appropriate.
Rule 54(b) is not the major problem with regard to the
amended motion for default judgment. The major problem is
that there are no pending allegations against Third-Party
defendants Development & Municipal Initiatives, LLC,
Deborah Prosser-White and Eric White. As noted above,
Third-Party Plaintiff filed an Amended Third-Party complaint
(Doc. 72). Although Third-Party defendants Development &
Municipal Initiatives, LLC, Deborah Prosser- White and Eric
White are named in the caption of the amended third-party
complaint, the initial paragraph of the third-party complaint
states that it, “hereby complains of Keith
Moran.” (Doc. 72, pg 1). The Court notes that there are
allegations and/or alleged facts within the counts that
reference, “DMI” and “White, ” but
whether “White” refers to Deborah Prosser-White
or Eric White is unclear. Further, with regard to Count IV,
the complaint only requests indemnification from Third-Party
amended pleading is filed, it supersedes the prior pleading.
See WellnessCommunity-National v. Wellness
House, 70 F.3d 46, 49 (7th Cir.1995); Barnett v.
Daley, 32 F.3d 1196, 1198 (7th Cir.1994). “The
prior pleading is in effect withdrawn as to all matters not
restated in the amended pleading, and becomes functus
officio.” Nisbet v. Van Tuyl, 224 F.2d 66, 71
(7th Cir. 1955). Since there are no claims against
Third-Party defendants Development & Municipal
Initiatives, LLC, Deborah ...