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March 24, 1997

MARK WALDORF, Plaintiff,
BOROUGH OF KENILWORTH, et als., Defendants.

The opinion of the court was delivered by: WALLS

 Walls, District Judge

 Before the Court is the renewed motion of plaintiff Mark Waldorf ("Waldorf") for certification of a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Defendant Borough of Kenilworth ("the Borough") opposes certification. The Court decides this motion on the basis of the written submissions of the parties pursuant to Rule 78. *fn1"

 Factual Background

 Although the background of this unfortunate case is familiar to all involved, the Court will briefly recount the facts relevant to this motion.

 On November 17, 1982, Waldorf was a passenger in a van which collided with an automobile in an intersection, controlled by a malfunctioning traffic light, in the Borough of Kenilworth. The accident left him a quadriplegic.

 Waldorf brought suit against the Borough, the drivers and occupants of the vehicles, members of the Borough's police department who allegedly had received notice of the malfunctioning traffic light before the accident and had failed to take preventive action, and various elected officials of the Borough. *fn2" In its Amended Answer to the Complaint, the Borough pleaded the affirmative defense of comparative negligence.

 Procedural History

 In 1988, the case was tried to determine liability and damages. The jury awarded Waldorf $ 8,400,000. The Court of Appeals for the Third Circuit affirmed in part, reversed in part and remanded for a new trial.

 On July 28, 1992, before the second trial, a pretrial hearing was held before the magistrate judge. At this proceeding, counsel for the Borough argued, over Waldorf's objections, that it should be permitted to stipulate liability in the second trial on the condition that the case be bifurcated with different juries hearing liability and damages and that the damages trial proceed before a liability trial. Counsel stated:

The borough has, after much consideration and soul searching, authorized me to advise the Court that they will not contest liability in this matter, provided two things, and these are absolute conditions for this admission by them: one is that the case be bifurcated and different juries hear liability and damages; and the second thing is that the damage trial proceed first before a liability trial. Therefore, a decision not to contest liability is predicated on those two prerequisites.

 Transcript of the Proceedings of July 28, 1992 at 3:2-10. On August 4, 1992 the magistrate judge incorporated this precise statement in a Case Management Order, thus memorializing the agreement.

 In September 1992, the damages phase of the second trial proceeded. This time, the jury returned a verdict in the amount of $ 16,135,716. The Third Circuit vacated the verdict and remanded for a new trial.

 After the second trial, the Borough's new counsel moved to withdraw its stipulation of liability. In a published opinion, the Court ruled that the stipulation was binding and denied the application. Waldorf v. Borough of Kenilworth, 878 F. Supp. 686 (D.N.J. 1995). In October 1995, the case was retried and the jury awarded Waldorf $ 3,086,500. *fn3"

 In September 1996, Waldorf moved for certification of the judgment as final pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The Court granted his motion in an Order dated October 10, 1996 but did not make its reasons for doing so explicit for the record. The appeal was dismissed by the Court of Appeals for the Third Circuit on December 5, 1996 "for lack of appellate jurisdiction."

 The Court has instructed the parties to brief the issue again so that it could make specific findings for the benefit of appellate review as to why certification was warranted. The renewed motion is now before the Court.

 Legal Discussion

 I. Whether The Renewed Motion Is Appropriate In View of the Court of Appeals' Dismissal of the Appeal.

 In certifying a judgment as final pursuant to Rule 54(b), a district court must state on the record the analysis by which it determined that there was no just reason for delay, to assist a reviewing court in the event that the certification is challenged on appeal. Allis-Chalmers Corp. v. Philadelphia Elec. Co., 521 F.2d 360, 364 (3d Cir. 1975); see also Cemar, Inc. v. Nissan Motor Corp., U.S.A., 897 F.2d 120, 122-23 (3d Cir. 1990) (dismissing appeal for lack of jurisdiction because district court did not state its reasons for certification on the record).

 The Third Circuit dismissed Waldorf's appeal "for lack of appellate jurisdiction," citing Rule 54(b) of the Federal Rules of Civil Procedure. No further explication was provided. The defendant argues that relitigating the certification is inappropriate in light of the Third Circuit's dismissal. It submits that all relevant issues were before the court of appeals, and an assumption that the merits were not considered at that time is therefore improper. Waldorf reads the dismissal as a statement that the prerequisites for certification had not been met -- that this Court failed to make specific findings, on the record, supporting certification.

 The Court hesitates to divine the intent of the Third Circuit's concise statement. However, it is probably likely that this Court's failure to make its reasons for certification explicit for the record was the reason for the dismissal for lack of appellate jurisdiction. See, e.g., Cemar, 897 F.2d at 122-23 (ruling that court lacked appellate jurisdiction because of unsupported Rule 54(b) order); Allis-Chalmers, 521 F.2d at 364 (articulating rule requiring reasoned statement in support of Rule 54(b) certification). Furthermore, paramount to the certification analysis is the presence of an affirmative defense. The presence or absence of a affirmative defense is in dispute by the parties. The Court has not made a determination on the issue but will do so now.

 Therefore, the Court addresses the certification issue anew in view of its resolution of the affirmative defense issue. It sets out its findings with regard to certification, should ...

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