EFTA01363297.pdf

Page 7 91 F.3d 385, *; 1996 U.S. App. LEXIS 19807, **; 35 Fed. R. Serv. 3d (Callaghan) 1352 engaging in schemes that were nearly identical to the schemes that the Defendants used to defraud the Plaintiffs. These claims of the Additional Plaintiffs, however, were time-barred under the applicable statutes of limitations. Consequently, the Plaintiffs argued that the claims of the Additional Plaintiffs related back to the date of the filing of the original complaint, pursuant to Fed. R. Civ. P. 15(c). The Plaintiffs asserted that the Additional Plaintiffs had not been previously joined in the action due to a mistake by their attorney, Eric Moss. In support of the motion, the Additional Plaintiffs asserted [**5] that they had retained Moss to commence an action against the Defendants in 1990, at the same time that the Plaintiffs retained Moss to pursue their claims against the Defendants. The Additional Plaintiffs contended that Moss' failure to name them as plaintiffs in the original complaint was a mistake that was caused by Moss' serious illness and subsequent death in 1993. On August 17, 1995, the district court granted Chase's motion for summary judgment to the extent of dismissing the 10(b) claim against Chase, and denied Chase's motion to dismiss the state law claims against it. The district court also denied the Plaintiffs' motion for leave to amend the first amended complaint. The court found that the claims of the Additional Plaintiffs did not relate back to the date of the original complaint under Rule 15(c). Because the claims of the Additional Plaintiffs, without relation-back, were time- barred under the applicable statutes of limitations, the district court concluded that it would be futile to grant the Plaintiffs leave to amend the complaint under Rule 15(a). The Plaintiffs then filed the instant appeal, claiming that the district court erred in determining that the claims [**6] of the Additional Plaintiffs did not relate back and therefore that the district court erred in denying its motion to amend the first amended complaint. DISCUSSION Although the appellees have not argued the issue, we must determine whether we have jurisdiction to review the district court's order denying the Plaintiffs' motion for leave to amend their complaint. See Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir. 1995), cert. denied, 134 L. Ed. 2d 520, 116 S. Ct. 1351 (1996). This Court's jurisdiction is defined by statute and generally is limited to appeals from final judgments of the district court pursuant to 28 U.S.C. § 1291 and from certain interlocutory orders pursuant to 28 U.S.C. § 1292. We lack jurisdiction to hear this appeal under § 1291 because the district court's August 17, 1995 order is not a final judgment. Rule 54(b) of the Federal Rules of Civil Procedure sets forth the requirements for the entry of a partial final judgment in multi-claim or multi- party actions. [HN1] Under Rule 54(b), an order that "adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties" is not a final judgment unless the district court makes "an express rn determination that there is no just reason for delay and . . . an express direction for the entry of judgment." "Strict adherence to the certification requirements of Rule 54(b) has been our consistent view." In re Martin- Trigona, 763 F.2d 135, 139 (2d Cir. 1985). The district court's August 17th order did not dispose of all the Plaintiffs' claims against each of the Defendants. ['38El] Moreover, the district court did not certify its August 17th order by making an express determination that there was no just reason for delay or by directing entry of judgment pursuant to Rule 54(b). For internal use only CONFIDENTIAL - PURSUANT TO FED. R. CRIM. P. 6(e) DB-SDNY-0053247 CONFIDENTIAL SDNY_GM_00199431 EFTA01363297