In Re United Chair v. ( 1994 )

USCA1 Opinion

          March 14, 1994        [NOT FOR PUBLICATION]


                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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          No. 94-1175

            


                                IN RE:  UNITED CHAIR,

                                     Petitioner.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                        Torruella and Boudin, Circuit Judges.
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               Maria Soledad Ramirez-Becerra and Mercado & Soto on Petition
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          for  Writ  of  Mandamus and  Addendum  to  Petition  for Writ  of
          Mandamus.



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                 Per  Curiam.    Petitioner  seeks  a  writ  of  mandamus
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            directing the district court to set aside its order, pursuant

            to Fed. R. Civ. P. 42(b),  separating the trial of the claims

            brought by plaintiffs against petitioner from the third party

            claims brought by petitioner for contribution and indemnity. 



                 To be  entitled to  the writ,  a petitioner must,  inter
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            alia, "ordinarily demonstrate that something about the order,
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            or  its  circumstances  would  make  an   end-of-case  appeal

            ineffectual or  leave legitimate interests unduly  at risk." 

            In re Pearson, 990 F.2d 653,  656 (1st Cir. 1993) (quoting In
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            re  Recticel Foam  Corp., 859  F.2d 1000,  1005-06 (1st  Cir.
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            1988)).  Petitioner has failed to show make such a showing.  

                 The  order  for  separate  trials,  rather  than  ending

            petitioner's  right to  pursue its  claims against  the third

            party  defendants,  establishes   petitioner's  right  to   a

            separate trial and judgment.  See 6 C. Wright, A. Miller & M.
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            Kane, Federal Practice and  Procedure   1463, at 473  (1990).
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            Furthermore,  unless a  lesser judgment  is certified  by the

            court, there will be  no final judgment until all  the issues

            in  the whole  case have  been determined.   Fed. R.  Civ. P.

            54(b).    In  either  case,  upon  entry  of  final judgment,

            petitioner  has the  right to  appeal the  grant of  separate

            trials  and to secure a new trial should the separation prove

            to  have been  an abuse  of discretion.   See,  e.g., Franchi
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            Constr.  Co. v. Combined Ins. Co.,  580 F.2d 1, 6-8 (1st Cir.
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            1978) (ordering new trial upon finding that grant of separate

            trial was abuse  of discretion).   The fact  that a  separate

            trial will entail delay in any possible recovery against  the

            third  party defendants  and more  burdensome  litigation for

            petitioner is insufficient, by  itself, to justify the remedy

            of mandamus.  See In re Pearson, 990 F.2d at 661.  
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                 Petitioner's request for a writ of mandamus is denied.1
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            1.  For similar reasons, we decline  to consider petitioner's
            challenge  to the  separation  order  under  the  "collateral
            order"  doctrine.  See  In re Harrington, 992  F.2d 3, 6 (1st
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            Cir.  1993)  (collateral  order doctrine  cannot  be  invoked
            unless  challenged ruling  would  result in  irreparable harm
            incapable of vindication on appeal).

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