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MYERS & WATTERS CO. v. E. I. DUPONT DE NEMOURS & C

April 17, 1978

MYERS & WATTERS COMPANY
v.
E. I. duPONT de NEMOURS & CO.



The opinion of the court was delivered by: HUYETT

 HUYETT, J.

 On December 29, 1977, we filed an order granting defendant's motion for partial summary judgment on Count III of plaintiff's complaint (alleging trade libel) and Count II of defendant's counterclaim (plaintiff's obligation to pay for paint delivered to plaintiff by defendant). We denied the remainder of the parties' motions for summary judgment on the complaint and the counterclaim. Thus, several claims remain for trial. *fn1" Plaintiff has moved for entry of final judgment and certification pursuant to Fed.R.Civ.P. 54(b) of the summary judgment ruling on Count III of the complaint and Count II of the counterclaim. For the reasons stated below, the motion shall be denied.

 The leading case in this circuit providing focus to the language of Rule 54(b) is Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3d Cir. 1975). The Court of Appeals noted that generally the rule certification was only to be granted in the "infrequent harsh case". Id. at 363, 365, 367. "[The] burden is on the party seeking final certification to convince the district court that the case is 'the infrequent harsh case' meriting a favorable exercise of discretion." Id. at 365. The court supplied several factors to be assessed in determining whether a case was appropriate for Rule 54(b) treatment:

 
1. the relationship between the adjudicated and unadjudicated claims;
 
2. the possibility that the need for review might or might not be mooted by future developments in the district court;
 
3. the possibility that the reviewing court might be obliged to consider the same issue a second time;
 
4. the presence or absence of a claim or counterclaim which could result in set-off against the judgment sought to be made final;
 
5. miscellaneous factors such as delay, economic and solvency considerations, shortening the time for trial, frivolity of competing claims, expense and the like.

 Id. at 364 (footnotes omitted).

 Plaintiff contends that it has met all the criteria stated above and thus has carried its "burden of showing some danger of hardship or injustice through delay which would be alleviated by immediate 54(b) certification." Id. at 366. However, an analysis of the issues in this case in light of Allis-Chalmers convinces us that certification should not be granted.

 The most compelling factor weighing against plaintiff's position is the emphasis that the Allis-Chalmers court placed upon the existence of a claim or counterclaim which could form the basis for a set-off. The Court of Appeals stated:

 
"[In] the absence of unusual or harsh circumstances, we believe that the presence of a counterclaim, which could result in a set-off against any amounts due and owing to plaintiff, weighs ...

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