regard to the meaning or effect of the disputed release could become res judicata between the principal parties. Id. at 455.
However, unlike Panichella, the issue of the propriety of the amount of damages will not be revisited by any other party, thereby requiring a second appellate determination. Neither of the principal parties -- Waldorf and the Borough -- will be absent from the appeal. Thus, the third Allis-Chalmers factor does not weigh against certification.
E. Miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, and expense.
Waldorf urges that the factor of delay weighs heavily in favor of certification because of the length of this litigation -- fifteen years -- and the ensuing three jury trials and two appeals. To date, despite the severity of his injuries, he has received no compensation from the defendant. The Borough responds that any delay is likely to be minor because a liability trial can be accomplished in the near future.
The long delay in resolution of this matter favors Waldorf's position. Although the Borough argues that a liability trial would not take very long, the protracted history of this case indicates otherwise. By the time the liability trial finally gets underway, and considering the inevitable appeals which will follow, relief for the plaintiff will be very long in coming.
The Court further finds that economic and solvency considerations do not weigh against certification. In Allis-Chalmers, the court noted that an examination of this factor should ideally take into consideration the financial condition of the parties particularly whether the liable party's "financial condition [is] such that [the plaintiff] might in any way be prejudiced by postponing execution on its judgment." Allis-Chalmers, 521 F.2d at 364. Relevant to its analysis was the presence of a counterclaim by the defendant against the plaintiff which remained to be adjudicated. Id. The financial condition of the parties was important in determining the defendant's ability to satisfy the judgment or the plaintiff's ability to satisfy a potential judgment on the unlitigated counterclaim.
Here, no affirmative defense exists and no set-off for comparative negligence will be available. Therefore, Waldorf's financial condition is not at issue. Moreover, the amount of the judgment against the Borough is definite and fixed. With that knowledge the Borough can undertake the requisite actions as a public entity to meet its obligation to Waldorf under the verdict.
Although there is no evidence that the Borough will be incapable of satisfying the judgment at a later date, postponing execution on the judgment is highly prejudicial to Waldorf. As Waldorf rightly points out, the Borough has for fifteen years enjoyed the benefit of retaining the use of its money during this arduous litigation with no liability to pay prejudgment interest. During this time, he has suffered from catastrophic injuries and has received no compensation from the Borough, the admittedly responsible party. This weighs strongly in favor of Waldorf.
In conclusion, all of the Allis-Chalmers factors support the plaintiff's motion for certification. The Court finds that it is in the interests of "sound judicial administration and public policy" as well as in the interests of justice to certify the judgment as final. Id. at 360. If the jury verdict is affirmed by the Third Circuit, the Court can then schedule the liability phase of the trial and hopefully bring the matter to some resolution.
The Court holds that the Borough has failed to preserve its affirmative defenses against Waldorf. It finds that there is "no just reason for delay," Fed. R. Civ. P. 54(b), and grants the plaintiff's motion for certification of the judgment as final.
William H. Walls, U.S.D.J.
24 March 1997
Walls, District Judge
Plaintiff Mark Waldorf has moved for certification of a final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. Defendant Borough of Kenilworth opposes the motion.
Upon careful consideration of the arguments advanced by the parties and for the reasons stated in the accompanying opinion, the Court rules as follows:
The Court finds that there is "no just reason for delay," Fed. R. Civ. P. 54(b), and grants the plaintiff's motion to certify the judgment as final.
The Court orders that a Final Judgment be and hereby is entered in favor of Waldorf against the Borough in the amount of $ 3,005,941.00 plus costs.
William H. Walls, U.S.D.J.
24 March 1997