United States District Court, W.D. Oklahoma
IOFINA, INC., IOFINA RESOURCES, INC., and IOFINA CHEMCIAL, INC., Plaintiffs,
IGOR KHALEV and KIVA HOLDING, INC., Defendants.
MILES-LaGRANGE, UNITED STATES DISTRICT JUDGE
the Court is plaintiffs' Motion to Strike or Deny without
Prejudice Defendants' Motion for Attorneys' Fees,
filed March 17, 2017. On April 7, 2017, defendants filed
their response, and on April 14, 2017, plaintiffs filed their
reply. Based upon the parties' submissions, the Court
makes its determination.
March 3, 2017, defendants filed a Motion for Attorneys'
Fees. Plaintiffs assert that defendants' motion is
premature because there is no final appealable
judgment and that defendants' motion, therefore, should
be stricken or denied without prejudice. In their response,
defendants assert that the Court's February 17, 2017
Judgment should be considered a proper partial final judgment
pursuant to Federal Rule of Civil Procedure 54(b).
final decision must dispose of all claims by all parties,
except a decision may otherwise be considered final if it is
properly certified as a final judgment under Federal Rule of
Civil Procedure 54(b).” New Mexico v.
Trujillo, 813 F.3d 1308, 1316 (10th Cir. 2016) (internal
citation omitted). Rule 54(b) provides:
When 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. Otherwise,
any order or other decision, however designated, that
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties does not end the
action as to any of the claims or parties and may be revised
at any time before the entry of a judgment adjudicating all
the claims and all the parties' rights and liabilities.
Fed. R. Civ. P. 54(b). The Tenth Circuit has interpreted the
“expressly determines” language of Rule 54(b) to
require the district courts to make two determinations.
“First, the district court must determine the judgment
is final. Second, it must determine there is no just reason
for delay of entry of its judgment.” Trujillo,
813 F.3d at 1316.
Factors for the district court to consider in making an
express determination of finality and no just reason for
delay include whether the claims under review [are] separable
from the others remaining to be adjudicated and whether the
nature of the claims already determined [is] such that no
appellate court would have to decide the same issues more
than once even if there were subsequent appeals.
Id. (internal quotations and citations omitted).
“In order to determine whether an order is
‘final' a district court must first consider the
separability of the adjudicated and unadjudicated
claims.” Inola Drug, Inc. v. Express Scripts,
Inc., 390 F. App'x 774, 775 (10th Cir. 2010)
(internal citations omitted). “In determining whether
claims are separable, courts should consider whether the
allegedly separate claims turn on the same factual questions,
whether they involve common legal issues, and whether
separate recovery is possible.” Id. at 776
(internal quotations and citation omitted).
time of the Court's entry of the February 17, 2017
Judgment, this Court had not resolved all claims for relief.
Specifically, all but one of defendants' counterclaims
remained pending, though stayed, and the Court had not fully
disposed of plaintiffs' claim for injunctive relief.
Accordingly, the February 17, 2017 Judgment was not a final
having reviewed the parties' submissions, the Court finds
that it would not be appropriate to consider the February 17,
2017 Judgment a partial final judgment pursuant to Rule
54(b). Specifically, the Court finds that the claims
addressed in the February 17, 2017 Judgment are not separable
from at least one, if not more, of the remaining
counterclaims. Defendants have asserted a counterclaim
for declaratory judgment that defendants have not violated
the Oklahoma Uniform Trade Secrets Act. This counterclaim is
a mirror image of plaintiffs' already adjudicated trade
secrets claim under the Oklahoma Uniform Trade Secrets Act,
presenting the same facts and legal issues. The Court,
therefore, finds that its February 17, 2017 Judgment is not
“final” for purposes of Rule 54(b).
in their response, defendants assert that even if the
February 17, 2017 Judgment is not a proper final judgment,
this Court has discretion to issue an interim attorney's
fee award. While Rule 54(d)(2)(B)(i) sets a deadline for a
party to file its motion for attorney's fees, it does not
address the issue of when a motion for attorney's fees
would be premature. Having reviewed the parties'
submissions, and assuming that this Court would have
discretion to issue an interim attorney's fee award in
this case, the Court declines to exercise said discretion.
Specifically, the Court finds that in light of the procedural
posture of this case - plaintiffs' pending appeal, the
likely filing of motions for judgment as a matter of law by
both plaintiffs and defendants once a final judgment has been
entered in this case and the likely appeal of this
Court's rulings on those motions and the jury's
verdict in this case, and the pending, but stayed, remaining
counterclaims - any prevailing party determination would be
premature at this time and, therefore, it would not be
prudent to issue an interim attorney's fee award.
the Court GRANTS plaintiffs' Motion to Strike or Deny
without Prejudice Defendants' Motion for Attorneys'
Fees [docket no. 323] and DENIES defendants' Motion for
Attorneys' Fees [docket no. 315] without prejudice to
refiling once a final judgment has been entered in this case.