In Re United Chair v. ( 1994 )

March 14, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-1175
IN RE: UNITED CHAIR,
Petitioner.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Breyer, Chief Judge,
Torruella and Boudin, Circuit Judges.
Maria Soledad Ramirez-Becerra and Mercado & Soto on Petition
for Writ of Mandamus and Addendum to Petition for Writ of
Mandamus.
Per Curiam. Petitioner seeks a writ of mandamus
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
alia, "ordinarily demonstrate that something about the order,
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
re Recticel Foam Corp., 859 F.2d 1000, 1005-06 (1st Cir.
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.
Kane, Federal Practice and Procedure 1463, at 473 (1990).
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.
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.
Petitioner's request for a writ of mandamus is denied.1
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
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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