In Scott v. Advanced Pharmaceutical Consultants, Inc., No. 21-14214, — F.4th —, 2023 WL 6817369 (11th Cir. Oct. 17, 2023), the Eleventh Circuit concluded that it lacked jurisdiction to review an order granting partial summary judgment to the defendants in an employment-retaliation case. After the district court granted summary judgment to the defendants on three of four claims, it certified its order as a final and appealable judgment under Federal Rule of Civil Procedure 54(b). The Eleventh Circuit, however, disagreed and dismissed the plaintiff’s appeal, as well as the defendant’s cross-appeal of the denial of summary judgment on the fourth claim.
The plaintiff, Ronda Scott, had been employed by Advanced Pharmaceutical Consultants, a company that provided pharmacy services in Florida prisons. APC was a subcontractor of Centurion of Florida under Centurion’s contract with Florida Department of Corrections.
After Scott was terminated by APC, she claimed that her termination was in retaliation for her reporting “serious conditions” at the prisons. She then filed suit against APC and Centurion, alleging four counts: violations of the Florida Private Whistleblower Act (“FPWA”) and the Florida Public Whistleblower Act (“FWA”) against Centurion and APC, as well as violations of the False Claims Act (“FCA”) and intentional interference with her advantageous business relations (i.e., tortious interference) against Centurion only.
Although there were four separate counts, Scott’s complaint contained only a single “prayer of relief.” Specifically, the complaint requested compensatory damages, injunctive relief, prejudgment interest, attorney’s fees and costs, and punitive damages “on all claims on which such damages may be presently asserted.”
Centurion and APC moved for summary judgment on all counts. The district court granted summary judgment on three of them—the FPWA, FWA, and FCA counts—but denied summary judgment on the tortious-interference count (which was against Centurion alone). The district court also certified all of the counts for immediate review. As to the three resolved counts, the district court directed the clerk to enter a final judgment pursuant to Rule 54(b). And the court certified that its decision on the tortious-interference claim satisfied 28 U.S.C. § 1292(b)’s requirements for interlocutory review.
Scott accordingly appealed the grant of summary judgment to APC and Centurion on the FPWA and FWA claims, and Centurion cross-appealed the denial of summary judgment on the tortious-interference claim.
In an opinion authored by Judge Stanley Marcus, the court declined to consider the merits of the claim, concluding that it did not have jurisdiction over the direct appeal under Rule 54(b) or the cross-appeal under § 1292(b).
As to the direct appeal, the court noted that Rule 54(b) requires two things for an order to be appealable: “a final judgment, and a determination that there is ‘no just reason’ to delay certifying the order as final and immediately appealable.” An appellate court reviews de novo the finality of the judgment, but the existence or not of “just reason for delay” is reviewed for abuse of discretion. Accordingly, the district court must clearly and cogently provide its reasoning as to reason for delay, or there will be nothing to which the appellate court may defer.
In undertaking its Rule 54(b) analysis, the court considered separately the judgment as to Centurion and the judgment as to APC.
The judgment for Centurion, the court concluded, was not a final judgment. To be final, the judgment must dispose entirely of a separate claim or dismiss a party in its entirety. The touchstone for the “separate claim” analysis is what relief is being sought: Is the unresolved claim “separately enforceable” without “mutually excluding” or “substantially overlapping” with the remedies being sought through the remaining claims? As the court explained, “The bottom line is that even if a district court adjudicates one count of a complaint, if another count seeks substantially similar relief, ‘the adjudication of the first count does not represent a final judgment because both counts are functionally part of the same claim under Rule 54(b).’”
Here, the tortious-interference claim was not separable from the other claims against Centurion, because it sought “substantially the same, mutually exclusive relief” as that sought in the three dismissed counts. The primary relief sought was compensatory damages for lost pay, but Scott could recover such damages only once under any theory. The fact that the tortious-interference claim also allowed for punitive damages was not controlling, because the question is whether there is substantial overlap, not whether the relief is identical. And it did not help that the complaint contained only a single “prayer of relief” with no distinction in the relief sought for each count.
The judgment as to APC, on the other hand, was final, because it disposed of all claims against that party. But it nevertheless should not have been certified under Rule 54(b), because it does not meet the “no just reason for delay” requirement. Because the district court did not “clearly and cogently” articulate its reasons for finding no just reason for delay, the Eleventh Circuit could not defer to the district court’s decision. Undertaking its own analysis on appeal, the court found the existence of a just reason for delay, namely having the APC and Centurion claims considered in the same appeal.
Finally, the court considered whether it had jurisdiction to hear Centurion’s cross-appeal. Because Centurion appealed the denial of summary judgment, which is not a final judgment, the appeal would have to meet a statutory exception—here, that contained in § 1292(b). But the statute gives an appellate court jurisdiction only “if application is made to it within ten days after the entry of the order” being appealed. Because Centurion did not apply to the Eleventh Circuit for permission to appeal within ten days of the district court’s order, the court was without jurisdiction.