Raymond E. King, Plaintiff-Appellant,
Steven M. Newbold, et al., Defendants-Appellees.
December 6, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 09 CV1184 -
Sidney I. Schenkier, Magistrate Judge.
Wood, Chief Judge, Rovner and Sykes, Circuit Judges.
defect in appellate jurisdiction prevents us from reaching
the merits of this appeal. The threshold jurisdictional
question is simple: Did the district court abuse its
discretion in granting an untimely motion for a Rule 54(b)
judgment? Our precedent is clear: An untimely Rule 54(b)
motion may be granted only if there is a showing of extreme
hardship. Because there was no showing of hardship-let alone
extreme hardship -we dismiss the appeal for lack of appellate
King, an Illinois prisoner, suffers from a severe case of
temporomandibular joint dysfunction. Since 2004 he has been
confined at two different correctional facilities. He
receives some medical care for his condition from healthcare
personnel employed directly by the State of Illinois; the
rest is overseen by employees of Wexford Health Sources,
Inc., a private correctional healthcare company under
contract with Illinois. After years of failed treatment for
his condition, a complex surgery, and an unsuccessful
postsurgical recovery, King sued Wexford and multiple medical
professionals alleging that they were deliberately
indifferent to his serious medical needs in violation of his
rights under the Eighth Amendment.
defendants moved for summary judgment. On December 16, 2013,
a magistrate judge granted the motion in part. Later, one
defendant moved for judgment on the pleadings on the
remaining claims against him. The judge granted this motion
on December 5, 2014. The combined effect of these two orders
was to significantly narrow the case; claims against two
January 15, 2015, more than 30 days after the order granting
judgment on the pleadings and more than a year after the
partial summary judgment, King made an oral motion at a
status conference for entry of a Rule 54(b) judgment on the
claims for which summary judgment and judgment on the
pleadings were granted. The judge granted the motion, setting
up this appeal.
federal appellate courts have jurisdiction over "all
final decisions of the district courts of the United
States." 28 U.S.C. § 1291. Orders resolving fewer
than all claims are not final for purposes of appeal.
General Ins. Co. of Am. v. Clark Mall Corp., 644
F.3d 375, 379 (7th Cir. 2011). Rule 54(b) of the Federal
Rules of Civil Procedure provides an exception. It allows a
district court to "direct entry of a final judgment as
to one or more, but fewer than all, claims or parties, "
but only if "there is no just reason for delay."
Fed. R. ClV. P. 54(b). If a Rule 54(b) motion is improperly
granted, the appellate court lacks jurisdiction and must
dismiss the appeal. See Horn v. Transcon Lines,
Inc., 898 F.2d 589, 595 (7th Cir. 1990) ("We
accordingly vacate the Rule 54(b) judgment and dismiss the
appeal for want of jurisdiction.").
54(b) motion requires the district court to examine questions
of finality and readiness for appeal. That is, the court must
first determine whether the order in question is truly final
as to one or more claims or parties; if it is, the court must
consider whether there is any good reason to delay entry of
final judgment until the entire case is finished.
Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1,
7-8 (1980) (requiring a district court to determine that it
is dealing with a final judgment and that there is no just
reason for delay).
ago we added a timeliness requirement as a hedge against
dilatory Rule 54(b) motions. Schaefer v. First Nat'l
Bank of Lincolnwood, 465 F.2d 234, 236 (7th Cir. 1972).
We held in Schaefer that "as a general rule it
is an abuse of discretion for a district judge to grant a
motion for a Rule 54(b) order when the motion is filed more
than thirty days after the entry of the adjudication to which
it relates." Id. We recog- nized that
"[t]here may be of course cases of extreme hardship
where dilatoriness is not occasioned by neglect or
carelessness in which the application of this general rule
might be abrogated in the interest of justice."
Id. But "[t]hose occasions/' we said,
"ought... to be extremely rare." Id.
King's Rule 54(b) motion was made 13 months after partial
summary judgment was granted and more than 30 days after the
entry of partial judgment on the pleadings. Because the
motion was seriously tardy, King needed to show hardship. He
has not done so; nor has he given any good reason for the