Novick v. AXA Network, LLC, et al., No. 09-5277 (2d Cir. 2011)
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Plaintiff sued defendant asserting claims of breach of contract and various business torts in connection with defendant's alleged wrongful termination of plaintiff's employment affiliation with defendant. Plaintiff appealed from summary judgment in favor of defendant on one of its counterclaims against plaintiff for nonrepayment of the outstanding balance of a loan for which he had given a promissory note. The court held that the district court's order of summary judgment was inappropriate and dismissed the appeal for lack of appellate jurisdiction where the determination that the promissory note was independent of the promises made by defendant in the Affiliation Agreements would involve consideration of defendant's promises underlying plaintiff's claims for breach of contract and wrongful termination and of the relationships among those promises. Therefore, the court would be required to consider many of the same issues that would need to be considered in any appeal from a final judgment adjudicating plaintiff's claims.
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09-5277-cv Novick v.AXA Network, LLC 09 - S277 - cv Novick v. AKA Network, LLC 1 UNITED STATES COURT OP APPEALS 2 POR THE SECOND CIRCUIT 3 August Term, 2010 4 5 (Argued: January 5 , 2011 Decided: June 13, 2011) Docket No. 09 - S277-cv 6 7 B STEVEN S. NOVICK, Plaintiff - Counterclaim- Defendant-Appellant , 9 10 11 - v. AXA NETWORK, LLC, AXA ADVISORS, LLC, Defendants - Counterclaimants-Appellees. 12 13 14 15 Before: KEARSE, WINTER, and HALL, Circuit Judges. Appeal from a partial final judgment of the United States 16 District Court 17 Hellerstein, 18 plaintiff's claims, summary j udgment to defendants on one of their 19 counterc l aims 20 Ped. R. Civ . P. 54(b) . 21 for Judge, for the Southern District of New York, granting, repayment Alvin K. prior to the resolut.ion of any of of money loaned to plaintiff. Appeal dismissed for l ack o f appe ll ate j urisdiction. 22 23 24 25 MI CHAEL S. F1NKELSTEIN, Garden City, New York (F i nkelstein & Feil, Garden City, New York, on the brief); for Plaintiff-CounterclaimDefendant - Appellant . 26 27 28 29 MI CHAEL A. KALISH, New York/ New York, (Howard Schragin, Epstein, Becker & Green, New York, New York, on the brief), for Defendants - Counterclaimants-Appel lees . 1 KEARSE, Circuit Judge: Plaintiff 2 Steven S. who present 4 its 5 (collectively "AXA"), 6 various business torts in connection with AJ<A's alleged wrongful 7 termination 8 appealed from a 9 District Court for company of AXA LLC the act.ion against AXA Network, commenced 3 s i ster defendants Novick, LLC Advisors , ("AXA and Advisors", asserting claims of breach of contract and Novick's employment partial final affiliation judgment of the Southern District of Judge, ("AXA Network"), with the AXA, United New York, has States Alv in K. 10 Hellerstein, granting summary judgment in favor ofAXA on 11 one of 12 outstanding balance of a loan for which he had given a promissory 13 note. 14 of fact to be tried as to that counterclaim and, 15 eiv. 54 (b), 16 immediately 17 $539 , 038 .77 18 attorneys' 19 judgment was inappropriate, 20 his 21 interdependent 22 obligations, and 23 his request I pursuant to Fed. R. Civ. 24 the final 2S claims against AXA . 26 that its counterclaims against Novick for nonrepayment of the The district court ruled that there were no genuine issues P. ordered that a partial on that plus fees. the interest, On affiliation partial counterclaim, Novick (2) with that AXA AY.A Novick to expenses contends arguing that agreements and and that pay AJf.A including (1) summary the promissory note and involved failed to contractually fulfill its own the court abused its discretion in denying P. 62 (h), that execution on judgment be stayed pending resolution of district R. judgment be entered requiring cost.s, appeal, promises final citing Fed. his For the reasons discussed below, we conclude court's Rule - 2 - 54(b) ce rti fication was 1 inappropriate, and we 2 thus appellate jurisdiction. I . 3 The parties 4 dismiss appeal for the following lack of BACKGROUND pleadings I the reveal agreements . 5 I n November 6 with a sizeable book of clients, entered into agreements with AKA 7 Advisors, 8 pursuant to which Novick became affiliated with t hose companies as 9 an 2002, Novick, a stockbroker and insurance salesman a broker/dealer, and AXA Networ k, an insurance company, independent contractor (the Agreements" or 10 "Agreements") . 11 terminating his affiliation with another company, would serve his 12 clients 13 principally 14 revenues he generated. 15 give Novick. 16 $500,000 and one for $1 million, to assist him with the expense of 17 ending his prior business affiliation. 18 loans, Novick executed promissory notes in favor of AXA Network, 19 one in January 2003 for $500,000 (the IIJanuary Loan Note") and the 20 other in August 2003 21 "Loan Note"). 22 subject of this appeal. 23 24 through "The Novick I s The parties agreed, "Affiliation by AXA, and paying him as a that inter alia, that Novick , upon AXA commissions for $1 million latter [August] commissions, compe nsate based on the Novick total AXA The parties also agreed that AXA would "Proven Producer," The would Loan is two early loans, In connection with these (the "August Loan Note" or the promissory Note was one for secured note by that is interests the in compensation and other amounts payable to 3 (AXA Counterclaims ~ 22) . 1 him by AXA." 2 that, 3 could " apply (directly or by the way of set - off) 4 any amounts owing by 5 of 6 under any of 7 at 2.) 8 was scheduled to be repaid in full (see id. 9 also [Novick's] if any Novick kind and defaulted on his 10 [Novick's] 11 entire 12 immediately 13 clause'I ) that in any form payable to (Novick] (August Loan Note 2008 was the date by which the loan any of at 1), the Loan Note AXA Agree me nts affi l iation with AXA is terminated for any reason, amount 14 "[i] f o wed due under this Note payable" and AXA to the payment of agreements with AXA." Although October 1, obligations, all commissions , compensation a mounts [Novick ' s] provided loan payment (Novick] other The Loan Note provided shall (id. at automatically 2 (the or the become "acceleration . I n October 2006 , AXA terminated the Affiliation Agreements Novick, 15 with 16 failure 17 Agreements . la demanded payment of the unpaid principal amount of the August Loan 19 Note, 20 no further payments . 21 to stating that comply with In its all the Nov ember which was $450,000, action was based provisions or 2006 and again on Novick's conditions of in June plus all accrued interest. 2007, the AXA Novick made Novick commenced the present action against AXA Net work in 22 August 2007, adding AXA Advisors 23 complaint, 24 business 25 commissions 26 affiliation with him in retaliation for his "whistle blowing " to asserting torts, to which he a defendant in for breach of contract that claims alleging as AXA had failed was entitled ~ 4 ~ and had an amended and various to pay him terminated its 1 AXA about 2 committed by another AXA broker . 3 14-15.) 4 amount 5 November 2006 6 in 7 "adjudicat ling] 8 parties" 9 Agreements 10 ~~ 27-33), 11 amended complaint also asserted causes of action for , 12 unfair 13 prospective business 14 terminating the 15 about 16 Novick's 17 Novick 18 1 53 - 70.) 1 19 requests for 20 WHEREFORE 21 of 22 [January 23 WHEREFORE management violati ons allegedly (See Amended Complaint 11 Alleging that. "A:/.A's conduc t 9-10, has damaged Mr. Novick in an in excess of $460,491 . 78" -- the amount demanded by AXA i n Novick's (Amended Complaint' 35)--the first cause of action amended complaint the rights ~ (id . 33, requested and the 36) Novick in the 1 whom and a Loan AXA other complaint's or the Note (see The inter alia, with that id. Nov ick's AXA, false after statements in communications with sever AXA their ties with agents. prayer for relief incl uded in compensatory damages "declar[ationJ obligation NoteI to Affi lia tion \1 34-36) . id. made and so l icited lIat least $10,000,000" (a)), Loan alleging filing of the interference Agreements, clients amended financial 1 1 AXA to (see relationships, judgment relationships of the January Note and regulatory become The Loan Affiliation a declaratory regard with practice clients, and August a and other legal 23 - 26) , business any 24 sales - practice (id. that Plaintiff is relieved created pursuant $1 million [Augus t ] to either the Loan Note" ( id . counterclaims wit h (b)) . f i led an answer and asserted 25 respect to Novick's failures to pay the amounts due on the January 26 Loan Note and the August Loan - 5 - Note, along with a third 1 counterclaim alleging unjust enrichment. 2 discovery, partial 3 counterclaim with respect to the August Loan Note. 4 there were no genuine 5 alia , 6 AXA the promissory note in that amount, (c) Novick's repayment of 7 onl y an B balance 9 making Novick's outstanding debt on that loan due immediately upon (a) AXA AXA ' s $550 I 000 of moved issues of making of that $450,000, summary fact and (d) tried as loan, (b) leaving the terms to , Affiliati on Agreements the its inter Novick's giving outstanding of on It argued that to be the $1 million amount I judgment principal promissory 10 termination o f 11 making Novick liable for the expenses of collection. 12 that as of 13 the date of the motion, "for any reason" note $89 ,0 38.77, making the total due $539,038.77. 14 the for Fo llowi ng a period of and AJ<.A stated accrued interest amounted to Novick, without disputing his execution of the August Loan 15 Note, opposed the motion on the grounds, inter alia, 16 of his 17 failure to compensate him fully for his work under the Affiliation 18 Agreements, 19 making additional payments on the August Loan Note, and that the 20 amounts due him on that claim should constitute a setoff of the 21 amount he owed under the August Loan Note; and 22 claim that AXA wrongfully terminated the Affiliation Agreements in 23 retaliation for Novick's having blown the whistle on wrongdoing by 24 another AXA employee, 25 August Loan Note's accelerat i on clause. claims (1) that one is for breach of contract based on AXA's alleged that that failure by AJ(A unfairly prevented him from AXA should not - 6 - be (2) allowed that given his to invoke the 1 Novick argued that promissory 3 were interdependent. 4 copy 5 Internal 6 negotiations for the Affiliation Agreements and the up - front loans 7 that 8 business to AXA. 9 him on board, II an AXA Email" Novick and the should be allowed because his 2 of note setoff promises the Affiliation Agreements In support of that argument, interoffice or needed in "AKA to email dated October Email"), cover the describing cost of he submitted a 16, the bringing 2001 ("AXA then-ongoing his clients' As to what AXA was offering in order "to bring the AXA Email listed, inter alia, the proposed 10 $1 million loan to Novick--along with a $500,000 forgivable loan 11 that 12 production, 13 " [tl his would give him $1.5 million at signing." would 14 be "paid up front and earned out based on his like the normal proven producer bonus" - -stating that Novick requested, enter 15 and 16 counterclaim, 17 pursuant to Fed. 18 claims, 19 part partial 20 counterclaim. 21 immediately, 22 attempt to pursue his claims, and cripple him financially. that final judgment on the August Loan Note the court stay enforcement of such a judgment R. eiv. P. 62(h) pending resolution of Novick's contending that his recovery on those claims would offset or 23 a if the court were to grant AXA' s motion all The of any amounts Novick it would district stated cause court, that him in on AKA's if undue an August execution hardship, order dated Loan were allowed prejudice August Note 27, his 2009 24 (IIAugust 25 judgment on the August Loan Note counterclaim. Applying New York 26 law, counterclaim the 2009 Order"), due court ruled, granted AKA's motion for partial summary inter alia, - 7 - that the was 1 separable from other claims because the agreements in question did 2 not involve interdependent promises. 3 Affiliation Agreements 4 separately," 5 August 6 from 7 correspondingly allow [Novi c k] 8 AXA 9 months Loan Note (Novick] fails [Novick] to and apart, The court reasoned that the the August Loan Note were and it pointed "expressly allows out that "executed while the to withhold commissions AXA if (Novick) defaults on the note, it does not to withhold payment on the note if pay commissions. Nor does the note excuse from payment if he was wrongfully terminated as well as 10 inadequately compensated. 11 of 12 counterclaim or the amounts of principal and interest due on that 13 note as of the date of AKA's motion, 14 pay AXA $539,038. 77, plus additional interest, costs, and expenses 15 including 16 stated, 17 stay entry of judgment against Plaintiff on the note, as it arises 18 from the breach of a separate obligation, and would not prejudice 19 Plaintiff ' s ability to pursue, 20 claims." 21 Novick's Rule 62{h) request that it stay AXA's execution on such a 22 judgment. fact as to II Novick's attorneys citing Fed. ld . liability fees. I R. eiv. at 3 . See P. id. 54 (b), Finding no triable issues on the August Loan the court ordered Novick to at 3-4. The court - 8 - also that it saw "no reason to and collect any judgment on, August 2009 Order at 3. Note his The court sub silentio denied II. 1 On appeal, 2 DISCUSSION Novick contends principally that the district 3 court erred in finding the promises made in the August Loan Note 4 and the Affiliation Agreements 5 and abused its discretion in not granting a stay of execution on 6 the 7 Novick's claims. 8 the district 9 and that 10 judgment upholding AXA ! 5 of Rule the 54 (b) In general, there is a piecemeal appeals.'" 13 Co., U.S. 1, 8 14 Roebuck & Co. v. Mackey, 15 Roebuck") . 16 final 17 have been adj udicated. " 18 F.2d 627, '21 22 23 24 25 26 27 certification partial 12 20 that follow, final we conclude that was judgment inappropriate was an abuse of discretion . 11 19 independent of one another counterclaim pending resolution of For the reasons court I s entry to be 446 Thus, judgment As 629 an is '" historic Curtiss - Wright (1980) federal policy against Corp. v. General ("Curtiss - Wright '" 351 U.S. 427, (quoting 438 in the federal district courts, generally "only Sears! (1956) ( "Sears the entry of a after all claims Harriscom Svenska AB v . Harris Corp., (2d Cir. 1991) exception appropriate Electric to 947 ("Harriscom"). this general principle, Rule provides that [wl hen an action presents more than one claim for relief--whether as a claim, counterclaim, crossclaim, 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. - 9 - 54 (b) 1 Fed. R. Civ. 2 "requires 3 before 4 aggrieved 5 sparingly . that the 6 P. the party case to determination "that 8 Civ. 9 even if brief, 54(b), policy against pie c emea l an that there means concluded, final thereby immediate appeals judgment permitting appeal, he an exercised 947 F. 2d at 629. requirement 7 is take Harriscom, II The court's power - o enter such a t entire The P. 54(b). the is no that the district- court make an express just reason for delay, court must provide a if Fed. R. "reasoned," "explanation" of its considerations, Harriscorn, 947 10 F.2d at 11 have 12 concl us ions [, 13 all 14 appropriate language but unsupported by evaluation of the facts or 15 analysis of 16 Ltd., 17 omitted). 18 to confer appellate jurisdiction. 19 at 20 1978) . for 629, some basis 631; for factors, the law," F.2d 442, that a reviewing court distinguishing between well-reasoned and mere boiler - plate approval phrased in Ansam Associates, 445 (2d Cir. 1985 ) Inc. v. Cola Petroleum , (internal quotation marks A certification that is not appropriate is insufficient Brunswick Corp. To be 21 lilt is essential 1 arrived at after a comprehensive consideration of relevant 760 11 appropriate, both the Sheridan, a policy 582 Rule 54 (b) 22 account 23 against Harriscom, F.2d 175, 183 947 F.2d (2d Cir . certification must take equities between or among the parties. 24 25 26 27 28 29 of v. See,~, piecemeal appeals and Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims . It is left to the sound judicial discretion of the district court to determine the "appropriate time" when each final decision in a - 10 the 1 multiple 2 3 This discretion is to be exercised of sound judicial administration. " 4 5 6 7 8 9 Thus. in dec iding whether there are no just r easons to delay the aopeal of individual final j udgments . a district court must take into 10 11 12 claims action is ready for II appeal. in the interest account judicial administrative interests as well as the equities involved. Consideration of the former is necessary to assure that application of the Rule effectively "pre serves the historic federal policy aqainst piecemeal appeals." It [il s therefore proper for the District Judge to 13 14 consider such factors as whether the claims under review [a] re separable from the others remaining to 15 16 17 18 be adjudicated and whether the nature of the claims already determined [ils such that no appellate court would have to decide the same issues more than once even if there were subsequent appeals. 19 Curtiss-Wright, 446 U.S. at 8 (quoting Sears Roebuck, 20 435, 437 I 438 (emphases ours». 21 22 According ly, in the analysis of whether a 351 U.S. at Rule certification was appropriate, 23 24 25 26 27 28 29 30 31 the standard against which a district court's exercise of discretion is to be judged is the "interest o f sound judicial administration." Admittedly this presents issues not always easily reso lved, but the proper role of the court of appeals is not to reweigh the equities or reassess the facts but to make su re that the conclusions derived from those weighings and assessments are juridically sound and supported by the record. 32 33 34 35 36 37 38 39 40 41 42 43 44 There are thus two aspects to the proper function of a reviewing court in Rule 54 (b) cases. The court of appeals must, of course, scrutinize the district court's evaluation of such fac tors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units. But once such juridical concerns have been met, the discretionary judgment of the district court should be given substantial deference, for that court is "the one most likely to be familiar with the case and with any justifiable reasons for delay." The reviewing court should disturb the trial cou rt's assessment of the - 11 - 54(b) equities only if it can say that conclusion was clearly unreasonable . 1 2 the judge's 3 Curtiss-Wright, 446 U.S. at 10 (quoting Sears Roebuck, 351 U.S. at 4 437 5 902, 6 [Curtiss-Wright] 7 to 8 substantial deference to the trial court ' s discretion. II) . (emphases 905 n.S review (1st the In 9 ours)) see also i Cir. Pahlavi (" It 1984) v. only is Palandjian, after 744 th [e] F . 2d first test is met that the appeals court should go on trial applying court's assessment of these principles, we the equities, have giving repeatedly noted 10 that 11 certification 12 be 13 Bank 14 (other internal quotation marks omitted}) . 15 advance 16 efficiency to have piecemeal appeals 17 th r ee-judge panels to familiarize themselves with a given case " in 18 successive 19 issues. 20 21 22 23 24 25 26 the district court generally should not grant a Rule 54 (b) litigated. of I" if the same or closely related issues Harr iscom, I II Washington the Dolgov, interests appeals Harriscom, In v. the 947 of from F. 2d 853 at F.2d sound 629 57, (quoting 58 (2d National Cir. 198B) "It does not normally judicial successi v e remain to administration that require decisions two on or (or more) interrelated 947 F . 2d at 631 . p r esent case, the district court's Rule 54(b) certification stated as follows: T find no reason to stay entry of judgment against Plaintiff on the note, as it arises from the breach of a separate obli g ation, and would not p r ej udice Plaintiff's ability to pursue, and collect any judgment on, his claims . See Fed. R. Civ. P . 54(b). 27 August 2009 Order at 3 (emphasis added) 28 certification 29 liability on is that our the August review of Loan Note - 12 - Our difficu l ty with this the "arises ruling from that Novick ' s the breach of a 1 separate obligation" 2 note ag ree ment 3 of Novick's arguments that AXA has breached those Agreements and 4 an implied covenant of good faith and fair dealing. In 5 would require consideration not only of the itself but also of the Affiliation Agreements and general, it is 01, more when two made 7 conditional on performances required by the other. ' " 8 Cowles Communications , 9 (1972) 10 (1960 11 contracts 12 National 13 Turtur, 892 14 Rudman, 30 N.Y.2d at 13, 15 v. 16 separate (liRosenthal U ) . National 17 18 19 20 21 22 23 "[t] he boils Union 30 N.Y.2d I, (quoting But ed.I). Fire Folding 3A Corbin, issue down to Insurance F.2d 199, 205 promises made two contracts Inc., that have 6 ("Rudman") likely parties of 13, the (2d Cir. of 198 9) Box & Paper Co., § 696, 226 of of the at ("Turtur"); 290 separate parties." Pittsburgh , 330 N.Y.S.2d at 42; not Rudman v. dependency intent Company are 330 N.Y.S.2d 33, 42 Contracts the in one Pa. v. ~, see, Rosenthal Paper Co. N.Y. 313, 320 (1919) Whether the parties intended to treat both agreements as mutuall v dependent contracts, the breach of one undoing the obligations under the other, is a question of fact. In determining whether contracts are separable or entire, the primary standard is the intent manifested, viewed in the surrounding circumstances . 24 Rudman, 25 also Turtur, 26 usually inappropriate for disposition on summary judgment."). 27 30 N . Y.2d at 13, As to 330 N.Y.S.2d at 42 892 F.2d at 205 (emphases added); ("Questions of intent, we note, see are ", whether the parties assented to all the promises single whole,'" the test is whether '" there would have been 28 as a 29 no bargain whatever, if any promise or set of promises were struck ~ 13 ~ 1 out, '" Lowell 2 1975) 3 (3d ed . W. Jaeger 1962)). 4 be applied with a measure of common sense: ("Lowell") 5 6 7 8 9 10 11 12 Twin Disc , Inc., 527 F . 2d 767, (quoting 6 Williston on Contracts 770 § (2d Cir. 863, at 275 The test as to the parties' intent must By a long series of decisions, the rule has been established that the question whether covenants are to be held depende n t or independent of each other is to be determined by the intention and meaning of the parties, as expressed by them, and by the application of common sense to each case submitted for adjudication. Rosenthal, 226 N.Y. at 320 . 13 14 15 16 17 18 v. When the promises of the parties are concurrent and dependent, either party defaulting in performance cannot, in the course of performance, sustain an action against the other because he has also defaulted. Id. at 322. 19 20 21 22 Furthermore , each contract contains an impl ici t understanding that neither party wlll intentionally do anything to prevent the other party from carryinQ out his part of the agreement. Persons invok i ng the aid of contracts are under implied obligation to exercise good faith not to frustrate the contracts into which they have entered. It is likewise implied in every contract that there is a duty of cooperation on the part of both parties. Thus. whenever the cooperation of the promisee is necessary for the perfo r mance of the promise , there is a condition implied that the cooperation will be given. 23 24 25 26 27 28 29 30 31 Lowell, 527 F.2d at 770 32 emphasis added; 33 is a 34 exists an implied covenant of good faith and fair dealing.") second emphasis fundamental Given 35 (internal quotation marks omitted) princip le these of in original); law that principles, 36 district court properly 37 judicial administration we took account and 14 - see also id . ( "It in every contract there cannot conclude of interests of efficiency - (first the in that determi ning the sound that a 1 partial 2 approprl.ate. 3 was correct in its conclusion that Novick's promise to repay the 4 $1 million loan and AXA' 5 are independent, we think it clear that that conclusion cannot be 6 rev i ewed properly without consideration of the parties' 7 entering 8 surrounding 9 interdependence of promises cannot be determined by examining one 10 final judgment, permitting an immediate appeal, was Without resolving the question of whether the court into the 5 promises in the Affiliation Agreements Affiliation Agreements those Agreements, for and the intent in circumstances independence the or promise in isolation. 11 The district court's observation that the $1 million loan 12 was made months after the Affiliation Agreements were entered into 13 does 14 surrounding the Affiliation Agreements. 15 on 16 Novick argues 17 him to enter into the Affiliation Agreements, 18 the AXA Internal Email. 19 that he needed the $1 million loan in order to, 20 an outstanding loan from the firm he would leave to join AXA, and 21 the 22 Agreements described AXA executives 23 an 24 "satisfy his needs." 25 Novick the $1 million loan plus the forgivable $500,000 loan, and 26 that "[t]his would give him $1.5 milli on at signing." not avoid the need to consider on appeal the AXA merits of that Internal up-front loan summary judgment, we the circumstances Without expressing a view note, for example, that that loan had been promised to him to induce Email we or in the words of "to bring him on board. on could the negotiations give I It Novick asserts inter alia, for the Affiliation calculation of [Novick] /I repay "how much of (emphasis added) to The AXA Email stated that AXA was offering - 15 - Thus, the 1 A'XA Email may indicate that '2 the 3 signing 4 promissory note on the loan. Affiliation of the $1 million loan was integral to A.greements Affiliation the despite the Agreements interval and the between giving the of the S The AXA Email may also indicate that AXA' s promis e s with 6 regard to Novick's compensation were integral to his signing the 7 promissory 8 essentially 9 payout, " note. The email " an advan ced described commission the since $1 million are as lowering his Novick should be able stating the expectation that we loan to, 10 inter alia, repay the $1 million loan in about three years out of 11 the commissions he was expected to earn. 12 of 13 determined without cons i deration of AKA ' s promises with regard to 14 Novick's compensation. Novick ' s 15 promise Further, repay fact that $1 million the Loan cannot Note be expressly 17 failed 18 Novick's 19 Affiliation Agreements were n ot meant to be entirely independent. 20 The 21 Novick to withhold payments on the promissory note ifAXA withheld 22 his 23 may ultimately be 24 note 25 commissions 26 have breached the impl i ed c ovenant of good f aith and fair dealing fact make payments promissory that the commi ssions, if earned August loan allowed to withhold the the absoluteness 16 A1<A to the to Thus , on note the commissions from note an indication that and may AXA 's be Novick obligations if he under the note contains no provision expressly allowing does not eliminate the possibility that Novick found justified in withholding payment on the AXA-~ w hich sufficient had to antic i pated pay the - 16 - that $1 million Novick would loan ~ ~ is earn found to 1 by, as '2 loan after breaching the Affiliation Agreements , 3 i mproperly withholding commissions <1 cl i ents leave thereby 5 loan. 6 claimed to by Novick, him, dema n ding immediate due him repayment by, and of the inter alia, solicit i ng his him from repaying the disabl i ng We think it plain f rom this record that an assessment of 7 the 8 Loan 9 Affiliation correctness Note was of the district independent Agreements underlying of will court's the promises involve Novick ' s ruling made by AXA in the the AXA contract and consideration 11 wrongful 12 promises. 13 required to consider many of the same issues that will need to be 14 considered 15 Novick ' s 16 court's 17 Loap 18 sound j udicial administration and efficiency and thus constituted 19 an 20 insufficient, to confer appellate jurisdiction. Thus, in on any claims. Rule Note abuse appeal the present from Accordingly , 54 (b) for the of of relationships appeal, discretion. this a final we conclude certification of immediate appeal breach of of promises and for the August 10 term i nation claims that is I ts the among Court judgment that to the the certification would be adjudicating judgment on contrary those district the August interests of was therefore 21 Finally, in light of the policy against piecemeal appeals, 22 it is incumbent upon a party seeking immediate relief in the form 23 of 24 sufficiently 25 that the equities 26 essential to our ruling that the present appeal must be dismissed, a Rule 54 (b) judgment separable to to show not avoid only jud i c ial favor entry of such a - 17 - that the i ssues ineffic i ency judgment. but are a l so Although not 1 we note that despite 2 commissions owed to him and despite his repeated requests for an 3 accounting, 4 district court, in either affidavit or documentary form, 5 is not withholding any such commissions. 6 evidence, 7 all-owing B counterclaim. AXA does Novick's not, 10 appear it is difficult AXA to immediately 9 claim to that to see execute have AKA is withholding represented to the that it In the absence of such that the upon the equities favored judgment on its support of the CONCLUSION We have considered AKA's arguments in 11 district court's Rule 54 (b) certification and have found them to 12 be without merit. 13 partial final judgment on AXA's counterclaim constituted an abuse 14 of discretion, 15 counterclaim should remain interlocutory. 16 for lack of appellate jurisdiction. 17 For the reasons discussed above . the entry of a and t he order granting summary judgment on that No costs. - 18 - The appeal is dismissed
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