NOTES TO RULE 54

1937 Adoption

Note to Subdivision (a).

The second sentence is derived substantially from [former] Equity Rule 71 (Form of Decree).

Note to Subdivision (b).

This provides for the separate judgment of equity and code practice.  See Wis.Stat. (1935) § 270.54;  Compare N.Y.C.P.A. (1937) § 476.

Note to Subdivision (c).

For the limitation on default contained in the first sentence, see 2 N.D.Comp.Laws Ann. (1913) § 7680;  N.Y.C.P.A. (1937) § 479. Compare English Rules Under the Judicature Act (The Annual Practice, 1937) O. 13, r.r. 3-12.  The remainder is a usual code provision.  It makes clear that a judgment should give the relief to which a party is entitled, regardless of  whether it is legal or equitable or both.  This necessarily includes the deficiency judgment in foreclosure cases formerly provided for by Equity Rule 10 (Decree for Deficiency in Foreclosures, Etc.).

Note to Subdivision (d).

For the present rule in common law actions, see Ex parte Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920);  Payne, Costs in Common Law Actions in the Federal Courts (1935), 21 Va.L.Rev. 397.

The provisions as to costs in actions in forma pauperis contained in U.S.C., Title 28, former §§ 832-836 [now 1915] are unaffected by this rule.  Other sections of U.S.C., Title 28, which are unaffected by this rule are: [former] §§ 815 (Costs;  plaintiff not entitled to, when), 821 [now 1928] (Costs;  infringement of patent;  disclaimer), 825 (Costs;  several actions), 829 [now 1927] (Costs;  attorney liable for, when), and 830 [now 1920] (Costs; bill of;  taxation).

The provisions of the following and similar statutes as to costs against the United States and its officers and agencies are specifically continued:

U.S.C., Title 15, §§ 77v(a), 78aa, 79y (Securities and Exchange Commission
U.S.C., Title 16, § 825p (Federal Power Commission)
U.S.C., Title 26, [former] §§ 3679(d) and 3745(d) (Internal revenue actions)
U.S.C., Title 26, [former] § 3770(b)(2) (Reimbursement of costs of recovery against revenue officers)
U.S.C., Title 28, [former] § 817 (Internal revenue actions)
U.S.C., Title 28, § 836 [now 1915] (United States--actions informa pauperis)
U.S.C., Title 28, § 842 [now 2006] (Actions against revenue officers)
U.S.C., Title 28, § 870 [now 2408] (United States--in certain cases)
U.S.C., Title 28, [former] § 906 (United States--foreclosure actions)
U.S.C., Title 47, § 401 (Communications Commission)

The provisions of the following and similar statutes as to costs are unaffected:

U.S.C., Title 7, § 210(f) (Actions for damages based on an order of the Secretary of Agriculture under Stockyards Act)
U.S.C., Title 7, § 499g(c) (Appeals from reparations orders of  Secretary of Agriculture under Perishable Commodities Act)
U.S.C., Title 8, [former] § 45 (Action against district attorneys in certain cases)
U.S.C., Title 15, § 15 (Actions for injuries due to violation of antitrust laws)
U.S.C., Title 15, § 72 (Actions for violation of law forbidding importation or sale of articles at less than market value or wholesale prices)
U.S.C., Title 15, § 77k (Actions by persons acquiring securities registered with untrue statements under Securities Act of 1933)
U.S.C., Title 15, § 78i(e) (Certain actions under the Securities Exchange Act of 1934)
U.S.C., Title 15, § 78r (Similar to 78i(e) )
U.S.C., Title 15, § 96 (Infringement of trade-mark--damages)
U.S.C., Title 15, § 99 (Infringement of trade-mark--injunctions) U.S.C., Title 15, § 124 (Infringement of trade-mark--damages)
U.S.C., Title 19, § 274 (Certain actions under customs law)
U.S.C., Title 30, § 32 (Action to determine right to possession of mineral lands in certain cases)
U.S.C., Title 31, §§ 232 [now 3730] and 234 [former] (Action for making false claims upon United States)
U.S.C., Title 33, § 926 (Actions under Harbor Workers' Compensation Act)
U.S.C., Title 35, § 67 [now 281, 284] (Infringement of patent--damages)
U.S.C., Title 35, § 69 [now 282] (Infringement of patent--pleading and proof)
U.S.C., Title 35, § 71 [now 288] (Infringement of patent--when specification too broad)
U.S.C., Title 45, § 153p (Actions for non-compliance with an order of National R.R. Adjustment Board for payment of money)
U.S.C., Title 46, [former] § 38 (Action for penalty for failure to register vessel)
U.S.C., Title 46, § 829 (Action based on non-compliance with an order of Maritime Commission for payment of money)
U.S.C., Title 46, § 941 (Certain actions under Ship Mortgage Act)
U.S.C., Title 46, § 1227 (Actions for damages for violation of certain provisions of the Merchant Marine Act, 1936)
U.S.C., Title 47, § 206 (Actions for certain violations of Communications Act of 1934)
U.S.C., Title 49, § 16(2) [now 11705] (Action based on non-compliance with an order of I.C.C. for payment of money) 1946 Amendment

Note.  The historic rule in the federal courts has always prohibited piecemeal disposal of litigation and permitted appeals only from final judgments except in those special instances covered by statute.  Hohorst v. Hamburg--American Packet Co., 1893, 13 S.Ct. 590, 148 U.S. 262, 37 L.Ed. 443;  Rexford v. Brunswick-Balke-Collender Co., 1913, 33 S.Ct. 515, 228 U.S. 339, 57 L.Ed. 864; Collins v. Miller, 1920, 40 S.Ct. 347, 252 U.S. 364, 64 L.Ed. 616.  Rule 54(b) was originally adopted in view of the wide scope and possible content of the newly created "civil action" in order to avoid the possible injustice of a delay in judgment of a distinctly separate claim to await adjudication of the entire case.  It was not designed to overturn the settled federal rule stated above, which, indeed, has more recently been reiterated in Catlin v. United States, 1945, 65 S.Ct. 631, 324 U.S. 229, 89 L.Ed. 911.  See also United States v. Florian, 1941, 61 S.Ct. 713, 312 U.S. 656, 85 L.Ed. 1105;  Reeves v. Beardall, 1942, 62 S.Ct. 1085, 316 U.S. 283, 86 L.Ed. 1478.

Unfortunately, this was not always understood, and some confusion ensued. Hence situations arose where district courts made a piecemeal disposition of an action and entered what the parties thought amounted to a judgment, although a trial remained to be had on other claims similar or identical with those disposed of.  In the interim the parties did not know their ultimate rights, and accordingly took an appeal, thus putting the finality of the partial judgment in question.  While most appellate courts have reached a result generally in accord with the intent of the rule, yet there have been divergent precedents and division of views which have served to render the issues more clouded to the parties appellant.  It hardly seems a case where multiplicity of precedents will tend to remove the problem from debate.  The problem is presented and discussed in the following cases:  Atwater v. North American Coal Corp., C.C.A.2, 1940, 111 F.2d 125;  Rosenblum v. Dingfelder, C.C.A.2, 1940, 111 F.2d 406;  Audi-Vision, Inc. v. RCA Mfg. Co., Inc., C.C.A.2, 1943, 136 F.2d 621;  Zalkind v. Scheinman, C.C.A.2, 1943, 139 F.2d 895;  Oppenheimer v. F. J. Young & Co., Inc., C.C.A.2, 1944, 144 F.2d 387;  Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., C.C.A.2, 1946, 154 F.2d 814, certiorari denied 1946, 66 S.Ct. 1353, 328 U.S. 859, 90 L.Ed. 1630;  Zarati Steamship Co. v. Park Bridge Corp., C.C.A.2, 1946, 154 F.2d 377;  Baltimore and Ohio R. Co. v. United Fuel Gas Co., C.C.A.4, 1946, 154 F.2d 545;  Jefferson Electric Co. v. Sola Electric Co., C.C.A.7, 1941, 122 F.2d 124;  Leonard v. Socony-Vacuum Oil Co., C.C.A.7, 1942, 130 F.2d 535;  Markham v. Kasper, C.C.A.7, 1945, 152 F.2d 270; Hanney v. Franklin Fire Ins. Co. of Philadelphia, C.C.A.9, 1944, 142 F.2d 864; Toomey v. Toomey, App.D.C.1945, 149 F.2d 19, 80 U.S.App.D.C. 77.

In view of the difficulty thus disclosed, the Advisory Committee in its two preliminary drafts of proposed amendments attempted to redefine the original rule with particular stress upon the interlocutory nature of partial judgments which did not adjudicate all claims arising out of a single transaction or occurrence.  This attempt appeared to meet with almost universal approval from those of the profession commenting upon it, although there were, of course, helpful suggestions for additional changes in language or clarification of detail.  But cf. Circuit Judge Frank's dissenting opinion in Libbey-Owens-Ford Glass Co. v. Sylvania Industrial Corp., supra, n. 21 of the dissenting opinion.  The Committee, however, became convinced on careful study of its own proposals that the seeds of ambiguity still remained, and that it had not completely solved the problem of piecemeal appeals.  After extended consideration, it concluded that a retention of the older federal rule was desirable, and that this rule needed only the exercise of a discretionary power to afford a remedy in the infrequent harsh case to provide a simple, definite, workable rule.  This is afforded by amended Rule 54(b).  It re-establishes an ancient policy with clarity and precision.  For the possibility of staying execution where not all claims are disposed of under Rule 54(b), see amended Rule 62(h).

1961 Amendment

This rule permitting appeal, upon the trial court's determination of "no just reason for delay," from a judgment upon one or more but less than all the claims in an action, has generally been given a sympathetic construction by the courts and its validity is settled.  Reeves v. Beardall, 316 U.S. 283 (1942); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956);  Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445 (1956).

A serious difficulty has, however, arisen because the rule speaks of claims but nowhere mentions parties.  A line of cases has developed in the circuits consistently holding the rule to be inapplicable to the dismissal, even with the requisite trial court determination, of one or more but less than all defendants jointly charged in an action, i.e. charged with various forms of concerted or related wrongdoing or related liability.  See Mull v. Ackerman, 279 F.2d 25 (2d Cir. 1960);  Richards v. Smith, 276 F.2d 652 (5th Cir. 1960); Hardy v. Bankers Life & Cas. Co., 222 F.2d 827 (7th Cir. 1955);  Steiner v. 20th Century-Fox Film Corp., 220 F.2d 105 (9th Cir. 1955).  For purposes of Rule 54(b) it was arguable that there were as many "claims" as there were parties defendant and that the rule in its present text applied where less than all of the parties were dismissed, cf. United Artists Corp. v. Masterpiece Productions, Inc., 221 F.2d 213, 215 (2d Cir. 1955);  Bowling Machines, Inc. v. First Nat. Bank, 283 F.2d 39 (1st Cir. 1960);  but the Courts of Appeals are now committed to an opposite view.

The danger of hardship through delay of appeal until the whole action is concluded may be at least as serious in the multiple-parties situations as in multiple-claims cases, see Pabellon v. Grace Line, Inc., 191 F.2d 169, 179 (2d Cir. 1951), cert. denied, 342 U.S. 893 (1951), and courts and commentators have urged that Rule 54(b) be changed to take in the former.  See Reagan v. Traders & General Ins. Co., 255 F.2d 845 (5th Cir. 1958);  Meadows v. Greyhound Corp., 235 F.2d 233 (5th Cir. 1956);  Steiner v. 20th Century-Fox Film Corp., supra;  6 Moore's Federal Practice p54.34[2] (2d ed. 1953);  3 Barron & Holtzoff, Federal Practice & Procedure § 1193.2 (Wright ed. 1958); Developments in the Law--Multiparty Litigation, 71 Harv.L.Rev. 874, 981 (1958);  Note, 62 Yale L.J. 263, 271 (1953);  Ill.Ann.Stat. ch. 110, § 50(2) (Smith-Hurd 1956).  The amendment accomplishes this purpose by referring explicitly to parties.

There has been some recent indication that interlocutory appeal under the provisions of 28 U.S.C. § 1292(b), added in 1958, may now be available for the multiple-parties cases here considered.  See Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508 (2d Cir. 1960).  The Rule 54(b) procedure seems preferable for those cases, and § 1292(b) should be held inapplicable to them when the rule is enlarged as here proposed.  See Luckenbach Steamship Co., Inc., v. H. Muehlstein & Co., Inc., 280 F.2d 755, 757 (2d Cir. 1960);  1 Barron & Holtzoff, supra, § 58.1, p. 321 (Wright ed. 1960).

1987 Amendment

The amendment is technical.  No substantive change is intended.

Notes of Advisory Committee on 2002 amendments to Rules.

Subdivision (d)(2)(C) is amended to delete the requirement that judgment on a motion for attorney fees be set forth in a separate document.  This change complements the amendment of Rule 58(a)(1), which deletes the separate document requirement for an order disposing of a motion for attorney fees under Rule 54.  These changes are made to support amendment of Rule 4 of the Federal Rules of Appellate Procedure.  It continues to be important that a district court make clear its meaning when it intends an order to be the final disposition of a motion for attorney fees.

The requirement in subdivision (d)(2)(B) that a motion for attorney fees be not only filed but also served no later than 14 days after entry of judgment is changed to require filing only, to establish a parallel with Rules 50,52, and 59.  Service continues to be required under Rule 5(a).

Notes of Advisory Committee on 2003 Amendments to Rules.

Rule 54(d)(2)(D) is revised to reflect amendments to Rule 53.