The opinion of the court was delivered by: Judge Nora Barry Fischer
This matter is before the Court on Alternative Motions for Rule 54(b) or Certification Pursuant to 28 U.S.C. 1292(b), or Motion to Allow Trial Testimony [DE 87], filed by Plaintiff State Steel on February 20, 2008. On February 29, 2008, Defendants American Compost Corporation, A&M Composting, Inc. and Solid Waste Services, Inc., d/b/a J.P. Mascaro & Sons (collectively hereinafter, "Defendants") filed their Response in Opposition to Plaintiff, State Steel's Motion for Rule 54(b), Certification Pursuant to 28 U.S.C. 1292(b) or to Allow Trial Testimony (Docket No. 97) as well as their Memorandum of Law in Support of its Opposition to Plaintiff's Motion for Rule 54(b) or Certification Pursuant to 28 U.S.C. 1292(b) or to Allow Testimony of Adrienne Chizek (Docket No. 98). Plaintiff did not file a reply.
In its motion, Plaintiff requests that the Court grant one of the following forms of relief: (1) certification for appeal pursuant to Rule 54(b) for the Court's December 18, 2007 Order, granting in part and denying in part summary judgment and/or its January 16, 2008 Order, denying Plaintiff's first motion for reconsideration; (2) certification for appeal pursuant to 28 U.S.C. § 1292(b) for the same Orders; or (3) permission for Adrienne Chizek to testify at trial as to Plaintiff's breach of contract claim. (Docket No. 87, at 1). The Court will address each request for relief in turn.
I. RULE 54(b) CERTIFICATION
Federal Rule of Civil Procedure 54(b), "Judgment on Multiple Claims or Involving Multiple Parties," provides:
When an action presents more than one claim for relief--whether as a claim, counterclaim, cross-claim, or third-party claim--or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.
Fed.R.Civ.P. 54(b). In support, Plaintiff asserts that because breach of contract is separable from the remaining claims and because "[t]here is no just reason to delay" in allowing an appeal, the Court should certify the summary judgment order as a final order. The Court disagrees.
Rule 54(b) "attempts to strike a balance between undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties." Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 363 (3d Cir. 1975). The rule authorizes district courts to enter final judgment and certify judgment for immediate appellate review so to reduce the chance that delay will cause substantial hardship and unfairness to parties in complex multi-claim actions. Zenith Radio Corp. v. Matsushita Elec. Indus. Co., Ltd., 513 F.Supp. 1334, 1336 (3d Cir. 1981). Therefore, motions pursuant to Rule 56(b) are addressed to the trial court's sound discretion, but prior to the exercise thereof, three conditions must be met: (1) there must be multiple claims or multiple parties; (2) there must be a final decision resolving the rights and liabilities of at least one party; and (3) there must be a finding that there is no just reason for delay. Oyster v. Johns-Manville Corp., 568 F.Supp. 83, 85 (E.D. Pa. 1983).
To aid trial courts in determining when certification is proper, the Third Circuit has identified five nonexclusive factors to consider:
(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 of trial, frivolity of ...