United States District Court, District of Columbia
L. FRIEDMAN UNITED STATES DISTRICT JUDGE
matter is before the Court on plaintiffs’ Motion for
Final Judgment pursuant to Rule 54(b) of the Federal Rules of
Civil Procedure as to defendants Bank of America, N.A. and
Joseph Massey (“bank defendants”), as well as the
John Akridge Company, Phillip McGovern, Kathleen McKeon, and
Judy Oakley (“Akridge defendants”) [Dkt.
The Court will grant the motion.
in this case stated various claims against the bank and the
Akridge defendants on the central theory that they conspired
with one another and with the District of Columbia to have
plaintiffs unlawfully arrested. Complaint ¶¶ 84-87.
The bank and the Akridge defendants each moved to dismiss all
claims against them under Rule 12(b)(6) of the Federal Rules
of Civil Procedure. Bank Defendants’ MTD (Feb. 28,
2013) [Dkt. 48-1]; Akridge Defendants’ MTD (Feb. 28,
2013) [Dkt. 51-1]. The Court heard oral argument on those
motions on June 9, 2016, and issued an oral opinion from the
bench dismissing with prejudice all claims against the bank
and the Akridge defendants. In brief, the Court’s oral
opinion reasoned that plaintiffs failed to state a plausible
civil conspiracy claim under Ashcroft v. Iqbal, 556
U.S. 662 (2009), and Bell Atl. Corp. v. Twombly, 550
U.S. 544 (2007), against each of the bank and the Akridge
defendants. Specifically, the First Amended Complaint lacked
plausible allegations that those defendants had “a
‘meeting of the minds’ as to some unlawful
purpose, ” which is “an essential element of a
civil conspiracy claim[.]” Sculimbrene v.
Reno, 158 F.Supp.2d 8, 16 (D.D.C. 2001) (quoting
Graves v. United States, 961 F.Supp. 314, 320
(D.D.C. 1997)). The Court subsequently issued an Order
memorializing its oral opinion. Order (June 21, 2016) [Dkt.
86]. Plaintiffs now move to certify that Order for immediate
appellate review pursuant to Rule 54(b) of the Federal Rules
of Civil Procedure.
an order in a case involving multiple claims or defendants is
not final (and therefore not appealable) until the district
court has ‘disposed of all claims against all
parties.’” United States v. All Assets Held
in Account No. XXXXXXXX, 314 F.R.D. 12, 14 (D.D.C. 2015)
(quoting Capitol Sprinkler Inspection, Inc. v. Guest
Servs., Inc., 630 F.3d 217, 221 (D.C. Cir. 2011).
“This approach avoids piecemeal appellate review and
also ‘protects the district court's independence,
prevents multiple, costly, and harassing appeals, and
advances efficient judicial administration.’”
Cincinnati Ins. Co. v. All Plumbing, Inc., 812 F.3d
153, 156 (D.C. Cir. 2016) (quoting Blue v. District of
Columbia Pub. Sch., 764 F.3d 11, 15 (D.C. Cir. 2014)).
Rule 54(b), however, allows the district court to
“direct entry of a final judgment as to one or more,
but fewer than all, claims or parties” upon an express
finding that “there is no just reason for delay.”
Fed.R.Civ.P. 54(b). “Absent an express determination
that the District Court has entered final judgment because
there is no [just] reason for delay, the Court of Appeals
lacks jurisdiction to review an Order the [sic] decides fewer
than all the claims for relief.” Detroit Int'l
Bridge Co. v. Gov't of Canada, 53 F.Supp.3d 28, 31
(D.D.C. 2015) (quoting Blackman v. District of
Columbia, 456 F.3d 167, 175-76 (D.C. Cir. 2006)).
order is “final” within the meaning of Rule 54(b)
if it is the “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). “[I]n deciding whether
there are no just reasons to delay the appeal of individual
final judgments , a district court must take into account
judicial administrative interests as well as the equities
involved, ” including “such factors as whether
the claims under review were separable from the others
remaining to be adjudicated and whether the nature of the
claims already determined was such that no appellate court
would have to decide the same issues more than once even if
there were subsequent appeals.” Id. at 8;
see also Brooks v. Dist. Hosp. Partners, L.P., 606
F.3d 800, 806 (D.C. Cir. 2010). “The D.C. Circuit has
directed the district courts to ‘supply a statement of
reasons’ when ruling on a motion under Rule
54(b).” Detroit Int'l Bridge Co. v. Gov't
of Canada, 53 F.Supp.3d at 31 (quoting Taylor v.
F.D.I.C., 132 F.3d 753, 761 (D.C. Cir. 1997)).
Court will certify its June 21, 2016 Order dismissing with
prejudice all claims against the bank and the Akridge
defendants. The Order is “final” with respect to
the bank and the Akridge defendants because the Court
dismissed the entire complaint against those defendants with
prejudice. See Order at 2 (June 21, 2016) [Dkt. 86].
The plaintiffs recently amended their complaint to
“remove” the bank and the Akridge defendants
“because the Court granted their previous motion to
dismiss with prejudice, ” leaving no further basis for
them to participate in the litigation. See Second
Amended Complaint at 1 n.1 (July 15, 2016) [Dkt. 89].
is also no just reason to delay appellate review. The bank
and the Akridge defendants oppose Rule 54(b) certification
because they argue that a just reason to delay
plaintiffs’ appeal is the risk of duplicative appeals.
Opp. at 2. They suggest that in plaintiffs’ appeal to
the D.C. Circuit they will present the issue of the
constitutionality of D.C. Code § 22-1307 (2012 Repl.)
(“blocking passage statute”) as an
“additional reason” or “alternative basis
to support the order granting the motions to dismiss.”
Opp. at 2. The constitutionality of the blocking passage
statute remains at issue in this case because Count IV of
plaintiffs’ second amended complaint alleges that the
District of Columbia is liable as a municipality under
Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978), for “ma[king] and enforce[ing] the [b]locking
[p]assage law, ” a statute that plaintiffs argue is
unconstitutional. See Second Amended Complaint
¶¶ 221-22 (July 15, 2016) [Dkt. 89].
argument of the bank and the Akridge defendants has some
merit but ultimately is unpersuasive. They are correct that
the D.C. Circuit would review plaintiffs’ appeal de
novo, Int'l Union, Sec., Police & Fire
Professionals of Am. v. Faye, ____ F.3d ___, 2016 WL
3853871, at *1 (D.C. Cir. July 15, 2016), and certainly it
“can affirm a judgment on any basis adequately
preserved in the record below, ” U.S. ex rel. Heath
v. AT & T, Inc., 791 F.3d 112, 123 (D.C. Cir. 2015),
including one not relied upon by this Court. If plaintiffs
successfully persuade the D.C. Circuit that their complaint
pled a plausible civil conspiracy claim against the bank and
the Akridge defendants under Iqbal and
Twombly, however, this Court thinks that it is
exceedingly unlikely that the court of appeals would take any
action other than to reverse and remand to this Court. Even
in the unlikely event that the D.C. Circuit were to accept
the invitation of the bank and the Akridge defendants to
reach out and address the constitutionality of the blocking
passage statute and then was to find its constitutionality an
“alternative basis” to affirm this Court’s
dismissal, the D.C. Circuit’s decision on the matter
would be final; so the D.C. Circuit would not have to
“decide the same issue more than once even if there
were subsequent appeals.” Wright Corp. v. General
Elec. Co., 446 U.S. at 8.
Court also is persuaded that the equities weigh in favor of
granting plaintiffs’ motion for Rule 54(b)
certification. The bank and the Akridge defendants allege no
prejudice to them, only the risk of duplicative appeals
discussed above - or perhaps that the D.C. Circuit would
simultaneously be considering the same issue on appeal while
this Court is addressing it with respect to the remaining
defendants (the District of Columbia and employees of the
District of Columbia, named in their individual capacities).
Plaintiffs just recently amended their complaint with the
consent of the remaining defendants, which suggests that it
will be some time before this Court enters final judgment
with respect to them. To delay plaintiffs’ appeal of
this Court’s Order dismissing the bank and the Akridge
defendants would needlessly prolong a determination of
whether there is any way for plaintiffs ever to vindicate
their rights against the bank and the Akridge defendants.
foregoing reasons, the Court expressly finds that there is no
just reason to delay the entry of final judgment. The Court
will issue an Order consistent with this Memorandum Opinion
this same day.
 The papers considered in connection
with the issues pending include the First Amended Complaint
[Dkt. 16]; Bank of America, N.A. and Joseph Massey’s
Memorandum of Law in Support of Motion to Dismiss Amended
Complaint (“Bank Defendants’ MTD”) [Dkt.
48-1]; Memorandum of Points and Authorities in Support of the
Akridge Defendants’ Motion to Dismiss (“Akridge
Defendants’ MTD”) [Dkt. 51-1]; Order of June 21,
2016 [Dkt. 86]; Plaintiffs’ Motion for Final Judgment
Pursuant to Rule 54(b) as to Bank Defendants and Akridge
Defendants (“Mot.”) [Dkt. 87]; Bank
Defendants’ and Akridge Defendants’ Opposition to
Motion for Final Judgment ...