Appeal from the Superior Court of the District of Columbia. (Hon. Stephen Eilperin, Trial Judge). (Hon. Howard L. Cushenberry, Jr., Trial Judge). (Hon. Joan Zeldon, Trial Judge).
Before Ferren and Ruiz, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Associate Judge: This is an action for plaintiff-appellant's personal injuries from a falling elevator brought against two companies - Warfield & Sanford, Inc. (Warfield) and Elcon Enterprises, Inc. (Elcon) - which had been responsible for servicing the elevator during different time periods before the accident occurred. The trial court granted summary judgment for Warfield, denied a motion to vacate that judgment, and, without stating reasons, certified both orders as a "final judgment" pursuant to Super. Ct. Civ. R. 54 (b) - despite the fact that plaintiff's action was still pending against Elcon and that Elcon's cross-claim was pending against Warfield. In appealing from the orders granting summary judgment and denying her motion to vacate, plaintiff-appellant, Lillie Anne Peoples, contends that the trial court (1) erred in granting summary judgment because the court failed to consider all the evidence in the light most favorable to her, and (2) abused its discretion in denying her motion to vacate under Super. Ct. Civ. R. 60 (b)(2) because it refused to recognize newly discovered evidence. We raise, sua sponte, the question whether the trial court abused its discretion in entering final judgment under Rule 54 (b) in light of the pending claim and cross-claim.
Appellant was injured on November 9, 1988, when an elevator in which she was riding in the United States Customs Building at 1101 Constitution Avenue, N.W., descended rapidly for several floors and came to an abrupt halt. Pursuant to a contract with the General Services Administration (GSA), Warfield was responsible for service and maintenance of the elevator from October 1, 1985, through October 31, 1988, nine days before the accident occurred. Elcon took over the service contract on November 1, 1988.
Almost three years later, on October 31, 1991, appellant filed a complaint for negligence, naming both Warfield and Elcon as defendants. The defendants answered, and Elcon filed a cross-claim against Warfield, which Warfield answered.
The court set April 14, 1992 as the initial deadline for filing requests for discovery. After appellant filed two sets of interrogatories and received answers, she filed a motion with defendants' consent to extend discovery, which the trial court granted until June 14. On May 5, Warfield sent interrogatories to appellant along with requests for production of documents. Appellant never responded. On June 15 and again on June 30, after the deadline for requesting discovery had expired, appellant served Warfield with additional discovery requests, including another request for production of documents.
On August 28, 1992, two and a half months after the extended deadline for filing discovery requests had expired, appellant filed still another motion for extension of discovery. Three days later, on August 31, Warfield filed a motion for summary judgment, contending that the time for discovery had expired without appellant's alleging any breach of duty by Warfield or proffering any evidence of Warfield's negligence. On September 4, appellant received Warfield's responses to her June discovery requests. On September 11, Warfield filed a motion opposing appellant's August 28 request for extending the discovery deadline. On October 7, Judge Eilperin denied appellant's motion to extend and granted Warfield's motion for summary judgment. The Judge noted that "plaintiff had not established through any admissible evidence a factual basis for its lawsuit against this defendant."
On October 30, 1992, appellant's counsel filed a motion to withdraw, as well as a motion for reconsideration of the motion to extend time for discovery. On December 3, the trial court granted both motions and extended discovery until February 1, 1993. *fn1 On December 15, 1992, new counsel entered an appearance for appellant and, in January and February, 1993, deposed several GSA employees who were involved with the contract between GSA and Elcon. During that period appellant's counsel also deposed several elevator technicians and mechanics employed by Elcon at the time of appellant's accident. Appellant also deposed at least one employee of Warfield and obtained substantial additional documentation from Warfield.
On April 22, 1993, appellant filed a motion to vacate the trial court's order granting summary judgment for Warfield. She contended that the evidence obtained from Warfield in early 1993 enabled appellant's expert, for the first time, to render an opinion to a reasonable degree of engineering certainty that Warfield had negligently maintained the elevator over a prolonged period of time, suggesting that this negligence was a proximate cause of appellant's injury. Appellant then argued that this evidence was "newly discovered" within the meaning of Super. Ct. Civ. R. 60 (b)(2) and, for that reason, justified vacation of the summary judgment order. On June 2, Judge Cushenberry summarily denied the motion. A year later, on June 6, 1994, responding to a motion filed by appellant, Judge Zeldon entered an order for final judgment for Warfield pursuant to Super. Ct. Civ. R. 54 (b). On June 24, 1994 appellant filed a timely notice of appeal.
Although appellant challenges the grant of summary judgment, her primary contention on appeal is that her new counsel's additional discovery from Warfield in early 1993, several months after entry of summary judgment, unearthed new evidence that, for the first time, gave substantial life to her negligence claim against Warfield, and thus warranted reversal for abuse of discretion in denying her motion to vacate under Rule 60 (b)(2). If we were to agree, this presumably would mean that appellant's claim had renewed vitality against two defendants, not just one (Elcon). Implicit in this argument for permitting, in effect, an interlocutory appeal is appellant's hope, if not expectation, that this court would reverse and remand the case against Warfield to a trial Judge who had been waiting for our decision before commencing or resuming trial. In that case, the trial could go forward against both defendants, Warfield and Elcon, to sort out which of them (if either) was responsible for negligent maintenance of the elevator. The presumed virtue in this approach would be the avoidance of an expensive retrial of the entire case if a post-trial appeal were to show that Warfield had been removed, erroneously, as one of the defendants. See Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.) cert. denied, 483 U.S. 1021, 97 L. Ed. 2d, 107 S. Ct. 3266 (1987) (citing Hunt v. Mobil Oil Corp., 550 F.2d 68, 70 (2d Cir.), cert. denied, 434 U.S. 984, 54 L. Ed. 2d 477, 98 S. Ct. 608 (1977)).
This focus on avoiding a second trial may be useful in rare instances, see Hunt, 550 F.2d at 70, but it is misplaced in this case. In the first place, appellant was in no hurry to achieve a pretrial appellate reversal; she waited a year after denial of her motion to vacate before obtaining Rule 54 (b) certification. Furthermore, there is nothing to indicate that the proceedings against Elcon (and between Elcon and Warfield) have been suspended; a second trial may be necessary anyway if appellant were to prevail here on appeal. Nor, in any event, is there an established policy favoring the deferral or suspension of trials involving multiple defendants to permit an interlocutory appeal of a dismissal or summary judgment for one of the parties before the trial proceeds to final judgment on all claims presented. See Hogan v. Consolidated Rail Corp., 961 F.2d 1021, 1026 (2d Cir. 1992). To the contrary, for most cases the operating assumption must be that if an appeal goes forward under Rule 54 (b) as to one defendant, the trial will go forward as to the other defendants, creating the possibility, indeed likelihood, of two appeals arising out of the same litigation. The likelihood of a second trial, however, is the same whether the appeals are resolved separately or as one, since the issues raised by all who lose in the trial court ...