09 - S277 - cv Novick v. AKA Network, LLC 1 UNITED STATES COURT OP APPEALS 2 POR THE SECOND CIRCUIT 3 4…

09 - S277 - cv
Novick v. AKA Network, LLC
1 UNITED STATES COURT OP APPEALS
2 POR THE SECOND CIRCUIT
3
4 August Term, 2010
5 (Argued: January 5 , 2011 Decided: June 13, 2011)
6 Docket No. 09 - S277-cv
7
B STEVEN S. NOVICK,
9 Plaintiff - Counterclaim - Defendant-Appellant ,
1 0 - v. -
11 AXA NETWORK, LLC, AXA ADVISORS, LLC,
12 Defendants - Counterclaimants-Appellees.
13
14 Before: KEARSE, WINTER, and HALL, Circuit Judges.
15 Appeal from a partial final judgment of the United States
16 District Court for the Southern District of New York, Alvin K.
17 Hellerstein, Judge, granting, prior to the resolut.ion of any of
18 plaintiff's claims, summary j udgment to defendants on one of their
19 counterc l aims for repayment of money loaned to plaintiff.
20 Ped. R. Civ . P. 54(b) .
21 Appeal dismissed for l ack o f appe ll ate j urisdiction.
22 MI CHAEL S. F1NKELSTEIN, Garden City, New York
23 (F i nkelstein & Feil, Garden City, New York,
24 on the brief); for Plaintiff-Counterclaim -
2 5 Defendant - Appellant .
26 MI CHAEL A. KALISH, New York/ New York, (Howard
27 Schragin, Epstein, Becker & Green, New
28 York, New York, on the brief), for
29 Defendants - Counterclaimants-Appel lee s .

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1 KEARSE, Circuit Judge:
2 Plaintiff Steven S. Novick, who commenced the present
3 act.ion against defendants AXA Network, LLC ("AXA Network"), and
4 its s i ster company AXA Advisors , LLC ("AXA Advisors",
5 (collectively "AXA"), asserting claims of breach of contract and
6 various business torts in connection with AJ<A's alleged wrongful
7 termination of Novick's employment affiliation with AXA, has
8 appealed from a partial final judgment of the United States
9 District Court for the Southern District of New York, Alv in K.
1 0 Hellerstein, Judge, granting summary judgment in favor ofAXA on
11 one of its counterclaims against Novick for nonrepayment of the
12 outstanding balance of a loan for which he had given a promissory
13 note. The district court ruled that there were no genuine issues
14 of fact to be tried as to that counterclaim and, citing Fed. R.
15 eiv. P. 54 (b), ordered that a partial final judgment be entered
16 immediately on that counterclaim, requiring Novick to pay AJf.A
17 $539 , 038 .77 plus interest, cost.s, and expenses including
18 attorneys' fees. On appeal, Novick contends that (1) summary
19 judgment was inappropriate, arguing that the promissory note and
20 his affiliation agreements with AXA involved contractually
21 interdependent promises and that AY.A failed to fulfill its own
22 obligations, and (2) the court abused its discretion in denying
23 his request I pursuant to Fed. R. Civ. P. 62 (h), that execution on
24 the partial final judgment be stayed pending resolution of his
2S
26
claims against AXA . For the reasons discussed below, we conclude
that the district court's Rule 54(b) ce rti fication was
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1 inappropriate, and we thus dismiss the appeal for lack of
2 appellate jurisdiction.
3 I . BACKGROUND
4 The parties I pleadings reveal the following agreements .
5 I n November 2002, Novick, a stockbroker and insurance salesman
6 with a sizeable book of clients, entered into agreements with AKA
7 Advisors, a broker/dealer, and AXA Networ k, an insurance company,
8 pursuant to which Novick became affiliated with t h ose companies as
9 an independent contractor (the "Affiliation Agreements" or
10 "Agreements") . The parties agreed, inter alia, that Novick , upon
11 terminating his affiliation with another company, would serve his
12 clients through AXA, and that AXA would compe nsate Novick
13 principally by paying him commissions based on the total AXA
14 re venues he generated. The par ties also agreed that AXA would
15 give Novick. as a "Proven Producer," two early loans, one for
16 $500,000 and one for $1 million, to assist him with the expense of
17 ending his prior business affiliation. In connection with these
18 loans, Novick executed promissory notes in favor of AXA Network,
19 one in January 2003 for $500,000 (the IIJanuary Loan Note") and the
20 other in August 2003 for $1 million (the "August Loan Note" or
21 "Loan Note"). The latter is the promissory note that is the
22 subject of this appeal.
23 "The [August] Loan Note was secured by interests i n
24 Novick I s commissions, compensation and other amounts payable to
3

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1 him by AXA." (AXA Counterclaims ~ 22) . The Loan Note provided
2 that, if Novick defaulted on his loan payment obligations, AXA
3 could " apply (directly or by the way of set - off) to the payment of
4 any amounts owing by (Novick] all commissions , compensation
5 of any kind and other a mounts in any form payable to (Novick]
6 under any of [Novick ' s] agreements with AXA." (August Loan Note
7 at 2.) Although October 1, 2008 was the date by which the loan
8 was scheduled to be repaid in full (see id. at 1), the Loan Note
9 also provided that "[i] f any of [Novick's] AXA Agree me nts or
10 [Novick's] affi l iation with AXA is terminated for any reason, the
11 entire amount o wed under this Note shall automatically become
12 immediately due and payable" (id. at 2 (the "acceleration
13 clause' I ) .
14 I n October 2006 , AXA terminated the Affiliation Agreements
15 with Novick, stating that its action was based on Novick's
16 failure to comply with all the provisions or conditions of the
17 Agreements . I n Nov ember 2006 and again in June 2007, AXA
la demanded payment of the unpaid principal amount of the August Loan
1 9
20
21
22
23
24
Note, which was $450,000, plus all accrued interest.
no further payments .
Novick made
Novick commenced the present action against AXA Net work in
August 2007, adding AXA Advisors as a defendant in an amended
complaint, asserting claims
business torts, alleging
for breach o f
that AXA had
contract and various
failed to pay him
25 commissions to which he was entitled and had terminated its
26 affiliation with him in retaliation for his "whistle blowing " to
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1 AXA management about sales - practice violati ons allegedly
2 committed by another AXA broker . (See Amended Complaint 11 9-10,
3 14-15.) Alleging that. "A:/.A's conduc t has damaged Mr. Novick in an
4 amount in excess of $460,491 . 78" -- the amount demanded by AXA i n
5
6
7
8
9
10
November 2006 (Amended Complaint' 35)--the first cause of action
in Novick's amended complaint requested a declaratory judgment
"adju dicat ling] the rights and other legal relationships of the
parties" (id . ~ 33, 36) with regard to the Affi lia tion
Agreements
~~ 27-33),
23 - 26) ,
and the August Loan
the January Loan
Note (see id. \1
Note (see id.
34-36) . The
11 amended complaint also asserted causes of action for , inter alia,
12 unfair business practice and interference with Nov ick's
13 prospective business relationships, alleging that AXA, after
14 terminating the Affiliation Agreements, made false statements
15 about Novick in a regulatory filing and in communications with
16 Novick's clients, whom AXA so l icited to sever their ties with
1 7
18
Novick and become clients of other AXA agents.
11 53 - 70.) The amended complaint's prayer for relief incl uded
19 requests for lIat least $10,000,000" in compensatory damages (id.
20 WHEREFORE 1 (a)), and a "declar[ationJ that Plaintiff is relieved
21
22
23
24
of any financial obligation created
[January Loan NoteI or the $1 million
WHEREFORE 11 (b)) .
pursuant to either the
[Augus t ] Loan Note" ( id .
AXA f i led an answer and asserted counterclaims wit h
25 respect to Novick's failures to pay the amounts due on the January
26 Loan Note and the August Loan Note, along with a third
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1 counterclaim alleging unjust enrichment. Fo llowi ng a period of
2 discovery, AXA moved for partial summary ju dgment on its
3 counterclaim with respect to the August Loan Note. It argued that
4 there were no genuine issues of fact to be tried as to , inter
5 alia , (a) AXA ' s making the $1 million loan, (b) Novick's giving
6 AXA the promissory note in that amount, (c) Novick's repayment of
7 onl y $550 I 000 of that amount I leaving an outstanding principal
B balance of $450,000, and (d) the terms of the promissory note
9 making Novick's outstanding debt on that loan due immediately upon
10 termination o f the Affiliati on Agreements "for any reason" and
11 making Novick liable for the expenses of collection. AJ<.A stated
12 that as of the date of the motion, accrued interest amounted to
13 $89 ,0 38.77, making the total due $539,038.77.
14 Novick, without disputing his execution of the August Loan
15 Note, opposed the motion on the grounds, inter alia, (1) that one
16 of his claims is for breach of contract based on AXA's alleged
17 failure to compensate him fully for his work under the Affiliation
18 Agreements, that that failure by AJ(A unfairly prevented him from
19 making additional payments on the August Loan Note, and that the
20 amounts due him on that claim should constitute a setoff of the
21 amount he owed under the August Loan Note; and (2) that given his
22 claim that AXA wrongfully terminated the Affiliation Agreements in
23 retaliation for Novick's having blown the whistle on wrongdoing by
24 another AXA employee, AXA should not be allowed to invoke the
25 August Loan Note's accelerat i on clause.
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1 Novick argued that setoff should be allowed because his
2 promissory note and the promises in the Affiliation Agreements
3 were interdependent. In support of that argument, he submitted a
4 copy of an AXA interoffice email dated October 16, 2001 ("AXA
5 Internal Email" or "AKA Email"), describing the then-ongoing
6 negotiations for the Affiliation Agreements and the up - front loans
7 that Novick needed to cover the cost of bringing his clients'
8 business to AXA. As to what AXA was offering in order "to bring
9 him on board, II the AXA Email listed, inter alia, the proposed
10 $1 million loan to Novick--along with a $500,000 forgivable loan
11 that would be "paid up front and earned out based on his
12 production, like the normal proven producer bonus" - -stating that
13 " [tl his would give him $1.5 million at signing."
14 Novick requested, if the court were to grant AXA' s motion
15 and enter a partial final judgment on the August Loan Note
16 counterclaim, that the court stay enforcement of such a judgment
17 pursuant to Fed. R. eiv. P. 62(h) pending resolution of Novick's
18 claims, contending that his recovery on those claims would offset
19 part or all of any amounts due on AKA's August Loan Note
20 counterclaim. Novick stated that if execution were allowed
21 immediately, it would cause him undue hardship, prejudice his
22 attempt to pursue his claims, and cripple him financially.
23 The district court, in an order dated August 27, 2009
24 (IIAugust 2009 Order"), granted AKA's motion for partial summary
25 judgment on the August Loan Note counterclaim. Applying New York
26 law, the court ruled, inter alia, that the counterclaim was
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1 separable from other claims because the agreements in question did
2 not involve interdependent promises. The court reasoned that the
3 Affiliation Agreements and the August Loan Note were "executed
4 separately," months apart, and it pointed out that while the
5 August Loan Note " expressly allows AXA to withhold commissions
6 from (Novick] if (Novick) defaults on the note, it does not
7 correspondingly allow [Novi c k] to withhold payment on the note if
8 AXA fails to pay commissions. Nor does the note excuse
9 [Novick] from payment if he was wrongfully terminated as well as
10 inadequately compensated. II ld . at 3 . Finding no triable issues
11 of fact as to Novick's liability on the August Loan Note
12 counterclaim or the amounts of principal and interest due on that
13 note as of the date of AKA's motion, the court ordered Novick to
14 pay AXA $539,038. 7 7, plus additional interest, costs, and expenses
15 including attorneys I fees. See id. at 3-4. The court also
16 stated, citing Fed. R. eiv. P. 54 (b), that it saw "no reason to
17 stay entry of judgment against Plaintiff on the note, as it arises
18 from the breach of a separate obligation, and would not prejudice
19 Plaintiff ' s ability to pursue, and collect any judgment on, his
20 claims." August 2009 Order at 3. The court sub silentio denied
21 Novick's Rule 62{h) request that it stay AXA's execution on such a
22 judgment.
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1 II. DISCUSSION
2 On appeal, Novick contends principally that the district
3 court erred in finding the promises made in the August Loan Note
4 and the Affiliation Agreements to be independent of one another
5 and abused its discretion in not granting a stay of execution on
6 the judgment upholding AXA ! 5 counterclaim pending resolution of
7 Novick's claims. For the reasons that follow, we conclude that
8 the district court I s Rule 54 (b) certification was inappropriate
9 and that entry of the partial final judgment was an abuse of
10 discretion .
11 In general, there is a '" historic federal policy against
12 piecemeal appeals.'" Curtiss - Wright Corp. v. General Electric
13 Co., 446 U.S. 1 , 8 (1980) ("Curtiss - Wright '" (quoting Sears!
14 Roebuck & Co. v. Mackey, 351 U.S. 427, 438 (1956) ( "Sears
15 Roebuck") . Thus, in the federal district courts, the entry of a
16 final judgment is generally appropriate "only after all claims
17 have been adj udicated. " Harriscom Svenska AB v . Harris Corp., 947
18 F.2d 627, 629 (2d Cir. 1991) ("Harriscom").
19 As an exception to this general principle, Rule 54 (b)
20 provides that
'21 [wl hen an action presents more than one claim for
22 relief--whether as a claim, counterclaim, crossclaim,
23 or third - party claim- -or when multiple parties are
24 involved, the court may direct entry of a final
25 judgment as to one or more, but fewer than all,
26 claims or parties only if the court expressly
27 determines that there is no just reason for delay.
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1 Fed. R. Civ. P. 54(b). The policy against pie c emea l appeals
2 "requires that the court's power -to enter such a final judgme nt
3 before the entire case is concluded, thereby permitting an
4 aggrieved party to take an immediate appeal, he exercised
5 sparingly . II Harriscom, 947 F. 2d at 629.
6 The requirement that the district- court make an express
7 determination "that there is no just reason for delay, if Fed. R.
8 Civ. P. 54(b), means that the court must provide a "reasoned,"
9 even if brief, "explanation" of its considerations, Harriscorn, 947
10 F.2d at 629, for 11 lilt is essential that a reviewing court
11 have some basis for distinguishing between well-reasoned
12 concl us ions [, 1 arrived at after a com prehensive consideration of
13 all relevant factors, and mere boiler - plate approval phrased in
1 4 appropriate language but unsupported by evaluation of the facts or
1 5 analysis of the law," Ansam Associates, Inc. v. Cola Petroleum ,
16 Ltd., 760 F.2d 442, 445 (2d Cir. 1985 ) (internal quotation marks
17 omitted). A certification that is not appropriate is insufficient
18 to confer appellate jurisdiction. See,~, Harriscom, 947 F.2d
19 at 631; Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir .
20 1978) .
21 To be appropriate, a Rule 54 (b) certification must take
22 account of both the policy against piecemeal appeals and the
23 equities between or among the parties.
24 Not all final judgments on individual claims should
25 be immediately appealable, even if they are in some
26 sense separable from the remaining unresolved
27 claims . It is left to the sound judicial
28 discretion of the district court to determine the
29 "appropriate time" when each final decision in a
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1
2
3
4
5
6
7
8
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10
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14
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multiple claims action is ready for appeal.
This discretion is to be exercised II in the interest
of sound judicial administration. "
Thus. in dec idin g whether there are no just
r easons to delay the aopeal of individual final
j udgments . a district court must take into
account judicial administrative interests as well as
the equities involved. Consideration of the former
is necessary to assure that application of the Rule
effectively "pre serves the historic federal policy
aqainst piecemeal appeals." It [il s
therefore proper for the District Judge to
consider such factors as whether the claims under
review [a] re separable from the others remaining to
be adjudicated and whether the nature of the claims
already determined [ils such that no appellate court
would have to decide the same issues more than once
even if there were subsequent appeals.
19 Curtiss-Wright, 446 U .S. at 8 (quoting Sears Roebuck, 351 U.S. at
20 435, 437 I 438 (emphases ours».
21 According ly, in the analysis of whether a Rule 5 4(b)
22 certification was appropriate,
23 the standard against which a district court's
24 exercise of discretion is to be judged is the
25 "interest o f sound judicial administration."
26 Ad mittedly this presents issues not always easily
27 reso lved, but the proper role of the court of appeals
28 is not to reweigh the equities or reassess the facts
29 but to make su re that the conclusions derived from
30 those weighings and assessments are juridically sound
31 and supported by the record.
32 There are thus two aspects to the proper
33 function of a reviewing court in Rule 54 (b) cases.
34 The court of appeals must, of course, scrutinize the
35 district court's evaluation of such fac to rs as the
36 interrelationship of the claims so as to prevent
37 piec em eal appeals in cases which should be reviewed
38 only as single units. But once such ju ridical
39 con cerns have been met, the discretionary judgment of
40 the district court should be given substantial
41 deference, for that court is "the one most likely to
42 be familiar with the case and with any justifiab le
43 reasons for delay." The reviewing court
44 should disturb the trial cou rt's assessment of the
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1
2
equities only
conclusion was
if it
clearly
can say that
unreasonable .
the judge's
3 Curtiss-Wright, 446 U.S. at 10 (quoting Sears Roebuck, 351 U.S. at
4 437 (emphases ours)) i see also Pahlavi v. Palandjian, 744 F . 2d
5 902, 905 n.S (1st Cir. 1984) (" It is only after th [e] first
6 [ Curtiss-Wright] test is met that the appeals court should go on
7 to review the trial court's assessment of the equities, giving
8 substantial deference to the trial court ' s discretion. II) .
9 In applying these principles, we have repeatedly noted
10 that the district court generally should not grant a Rule 54 (b)
11 certification I" if the same or closely related issues remain to
12 be litigated. I II Har r iscom, 947 F. 2d at 629 (quoting National
13 Bank of Washington v . Dolgov, 853 F.2d 57, 58 (2d Cir. 198B)
14 (other internal quotation marks omitted}) . "It does not normally
15 advance the interests of sound judicial administration or
16 efficiency to have piecemeal appeals that require two (or more)
17 th r ee-judge panels to familiarize themselves with a given case " in
18 successive appeals from successi v e decisions on interrelated
19 issues. Harriscom, 947 F . 2d at 631 .
20 In the p r esent case, the district court's Rule 54(b)
21 certification stated as follows:
22 T find no reason to stay entry of judgment against
23 Plaintiff on the note, as it arises from the breach
24 of a separate obli g ation, and would not p r ej udice
25 Plaintiff's ability to pursue, and collect any
26 judgment on, his claims . See Fed. R. Civ. P . 54(b).
27 August 2009 Order at 3 (emphasis added) Our difficu l ty with this
28 certification is that our review of the ruling that Novick ' s
29 liability on the August Loan Note "arises from the breach of a
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1 separate obligation" would require consideration not only of the
2 note ag ree ment itself but also of the Affiliation Agreements and
3 of Novick's arguments that AXA has breached those Agreements and
4 an implied covenant of good faith and fair dealing.
5 In general, 01, when two parties have made two separate
6 contracts it is more likely that promises made in one are not
7 conditional on performances required by the other. ' " Rudman v.
8 Co wles Communications , Inc., 30 N.Y.2d I, 13, 330 N.Y.S.2d 33, 42
9 (1972) ("Rudman") (quoting 3A Corbin, Contracts § 696, at 290
10 (1960 ed.I). But "[t] he issue of the dependency of separate
11 contracts boils down to the intent of the parties."
12 National Union Fire Insurance Company of Pittsburgh , Pa. v.
13 Turtur, 892 F.2d 199, 205 (2d Cir. 198 9) ("Turtur"); see, ~,
14 Rudman, 30 N.Y.2d at 1 3, 330 N.Y.S.2d at 42; Rosenthal Paper Co.
15 v. National Folding Box & Paper Co., 226 N.Y. 313, 320 (1919)
16 (liRosenthal U ).
17 Whether the parti es intended to treat both
18 agreements as mutuall v dependent contracts, the
19 breach of one undoing the obligations under the
20 other, is a question of fact. In determining
21 whether contracts are separable or entire, the
22 primary standard is the intent manifested, viewed
23 in the surrounding circumstances .
24 Rudman, 30 N . Y.2d at 13, 330 N.Y.S.2d at 42 (emphases added); see
25 also Turtur, 892 F.2d at 205 ("Questions of intent, we note, are
26 usually inappropriate for disposition on summary judgment.").
27 As to ", whether the parties assented to all the promises
28 as a single wh ole,'" the test is whether '" there would have been
29 no bargain whatever, if any promise or set of promises were struck
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1 out, '" Lowell v. Twin Disc , Inc., 527 F . 2d 767, 770 (2d Cir.
2 1975) ("Lowell") (quoting 6 Williston on Contracts § 863, at 275
3 (3d ed . W. Jaeger 1962)). The test as to the parties' intent must
4 be applied with a measure of common sense:
5 By a long series of decisions, the rule has been
6 established that the question whether covenants are
7 to be held depende n t or independent of each other is
8 to be determined by the intention and meaning of the
9 parties, as expressed by them, and by the application
10 of common sense to each case submitted for
11 adjudication.
12 Rosenthal, 226 N.Y. at 320 .
13 When the promises of the parties are concurrent
14 and dependent, either party defaulting in performance
15 cannot, in the course of performance, sustain an
16 action against the other because he has also
17 defaulted.
18 Id. at 3 22.
19 Furthermore , each contract contains an impl ici t
20 understanding that neither party wlll intentionally
21 do anything to prevent the other party from carryinQ
22 out his part of the agreement. Persons invok i ng the
23 aid of contracts are under implied obligation to
24 exercise good faith not to frustrate the contracts
25 into which they have entered. It is likewise
26 implied in every contract that there is a duty of
27 cooperation on the part of both parties. Thus.
28 whenever the cooperation of the promisee is necessary
29 for the perfo r mance of the promise , there is a
30 condition implied that the cooperation will be given.
31 Lowell, 527 F.2d at 770 (internal quotation marks omitted) (first
32 emphasis added; second emphasis in original); see also id . ( "It
33 is a fundamental princ ip le of law that in every contract there
34 exists an implied covenant of good faith and fair dealing.")
35 Given these principles, we cannot conclude that the
36 district court properly took account of the interests of sound
37 judicial administration and efficiency i n determ i ning that a
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1 partial final judgment, permitting an imme diate appeal, was
2
3
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6
7
8
9
10
11
12
approprl.ate. Without resolving the question of whether the court
was correct in its conclusion that Novick's promise to repay the
$1 million loan and AXA' 5 promises in the Affiliation Agreements
are independent, we think it clear that that conclusion cannot be
rev i ewed properly with out consideration of the parties' intent in
entering into the Affiliation Agreements and the circumstances
surrounding those Agreements, for the independence or
interdependence of promises cannot be determined by examining one
promise in isolation.
The district court's observation that the $1 million loan
was made months after the Affiliation Agreements were entered into
13 does not avoid the need to consider on appeal the circumstances
14 surrounding the Affiliation Agreements. Without expressing a view
15 on the merits of summary judgment, we note, for example, that
16 Novick argues that that loan had been promised to him to induce
17 him to enter into the Affiliation Agreements, or in the words of
18 the AXA Internal Email. "to bring him on board. It Novick asserts
19 that he needed the $1 million loan in order to, inter alia, repay
20 an outstanding loan from the firm he would leave to join AXA, and
21 the AXA Internal Email on the negotiations for the Affiliation
22 Agreements described AXA executives I calculation of "how much of
23 an up-front loan we could give [Novick] /I (emphasis added) to
24 "satisfy his needs." The AXA Email stated that AXA was offe ring
25 Novick the $1 million loan plus the forgivable $500,000 loan, and
26 that "[t]his would give him $1.5 milli on at signing." Thus, the
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1 A'XA Email may indicate that the $1 million loan was integral to
'2 the Affiliation A.greements despite the interval between the
3 signing of the Affiliation Agreements and the giving of the
4 promissory note on the loan.
S The AXA Email may also indicate that AXA' s promis e s with
6 regard to Novick's compensation were integral to his signing the
7 promissory note. The email described the $1 million loan as
8 essentially " an adva n ced commission since we are lowering his
9 payout, " stating the expectation that Novick should be able to,
10 inter alia, repay the $1 million loan in about three years out of
11 the commissions he was expected to earn. Thus , the absoluteness
12 of Novick ' s promise to repay the $1 million loan cannot be
13 determined without cons i deration of AKA ' s promises with regard to
14 Novick's compensation.
1 5 Further, the fact that the August Loan Note expressly
16 allowed A1<A to withhold earned commissions from Novick i f he
17 failed to make payments on the note may be an indication that
18 Novick's promissory note and AXA 's obligations under the
19 Affiliation Agreements were n ot meant to be entirely independent.
20 The fact that the note contains no provision expressly allo w ing
21 Novick to withhold payments on the promissory note ifAXA withheld
22 his commi ssions, does not eliminate the possibility that Novick
23 may ultimately be found justified in withholding payment on the
24 note if AXA-~ w hich had antic i pated that Novick would earn
2 5 commissions sufficient to pay the $1 million loan ~ ~ is found to
26 have breached the impl i ed c ovenant of good f aith and fair dealing
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1 by, as claimed by Novick, dema n ding immediate repayment of the
'2 loan after breaching the Affiliation Agreements , by, inter alia,
3 i mproperly withholding commiss io ns due him and solicit i ng his
<1 cl i ents to leave him, thereby disabl i ng him from repaying the
5 loan.
6
7
8
9
We think it plain f rom this record that an assessment of
the correctness of the district court's ruling that the August
Loan Note was independent of
Affiliation Agreements will
the promises made by AXA in
involve consideration of the
the
AXA
10 promises underlying Novick ' s claims for breach of contract and
11 w rongful term i nation and of the relationships among those
12 promises. Thus, on the present appeal, this Court would be
13 required to consider many of the same issues that will need to be
14 considered in any appeal from a final judgment adjudicating
15 Novick ' s claims. Accordingly , we conclude that the district
16 court's Rule 54 (b) certification of the judgment on the August
17 Loap Note for immediate appeal is contrary to the interests of
18 sound j udicial administration and efficiency and thus constituted
19 an abuse of discretion. I ts certification was therefore
20 insufficient , to confer appellate jurisdiction.
21 Finally, in light of the policy against piecemeal appeals,
22 it is incumbent upon a party seeking immediate relief in the form
23 of a Rule 54 (b) judgment to sho w not only that the i ssues are
24 sufficiently separable to avoid jud i c ial ineffic i ency but a l so
25 that the equities favor entry of such a judgment. Although not
26 essential to our ruling that the present appeal must be dismissed,
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1 we note that despite Novick's claim that AKA is withholding
2 commissions owed to him and despite his repeated requests for an
3 accounting, AXA does not , appear to have represented to the
4 district court, in either affidavit or documentary form, that it
5 is not withholding any such commissions. In the absence of such
6 evidence, it is difficult to see that the equities favored
7 all-owing AXA to immediately execute upon the judgment on its
B counterclaim.
9 CONCLUSION
10 We have considered AKA's arguments in support of the
11 district court's Rule 54 (b) certification and have found them to
12 be without merit. For the reasons discussed above . the entry of a
13 partial final judgment on AXA's counterclaim constituted an abuse
14 of discretion, and t he order granting summary judgment on that
15 counterclaim should remain interlocutory. The appeal is dismissed
16 for lack of appellate jurisdiction.
17 No costs.
- 18 -

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