Blake et al v. NCMIC Insurance Company et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BRITTANY BLAKE, D.C., et al.,
Plaintiff,
vs.
NCMIC INSURANCE COMPANY,
et al.,
Defendant.
Case No. 3:17-cv-00193-JMK
ORDER DIRECTING ENTRY OF
FINAL JUDGMENT
At Docket 142, Plaintiffs Brittany Blake, D.C., Raquel Osterbauer, Morgan
Loftus, and Tamara Ryan (“Moving Plaintiffs”) move the Court to enter a Final Judgment
as to their claims so that they may file an appeal. Defendant NCMIC Insurance Company
(“NCMIC”) responded in opposition at Docket 146. 	Myron Schweigert filed a non-
opposition to correct alleged errors in Moving Plaintiffs’ motion at Docket 149. Moving
Plaintiffs replied at Docket 154. As discussed below, the Court will direct the entry of final
judgment as to Moving Plaintiffs.
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I. 	BACKGROUND
The Court briefly recounts the factual background and procedural history of
this case as it relates to the motion at hand. 	Further detail can be found in the Court’s
Order re: Cross-Motions for Summary Judgment and Motions to Strike at Docket 140.
Plaintiffs in this action are seven women who formerly were patients of
Dr. Myron Schweigert, a chiropractor practicing at Chugach Chiropractic Clinic (“the
Clinic”) in Eagle River, Alaska.1 	On December 31, 2015, Plaintiffs filed suit against
Dr. Schweigert and the chiropractic clinic in Alaska Superior Court (“the Underlying
Action”), bringing claims of (1) professional malpractice relating to Dr. Schweigert’s
treatment of each of the Plaintiffs and (2) breach of the covenant of good faith and fair
dealing, sexual harassment, and wrongful discharge relating to Dr. Brittany Blake’s
employment.2 	The 	Complaint 	in 	the 	Underlying 	Action 	contains 	allegations 	that
Dr. Schweigert touched Plaintiffs’ breasts, nipples, genital area, and buttocks during
chiropractic treatments.3 	The Complaint also alleges that certain Plaintiffs experienced
pain or bruising following Dr. Schweigert’s administration of Electrotherapeutic Point
Stimulation Therapy (“ETPS”)4 and that Dr. Schweigert administered cortisone injections
into the shoulder of one Plaintiff on two occasions.5
1 Docket 119 at 7; Docket 121-1 at 2.
2 Docket 121-3 at 8–20.
3 Id. at 3–8.
4 Id. at 6–7.
5 Id. at 7.
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At all times relevant to this action, Dr. Schweigert and the Clinic were
insured under a professional liability insurance policy issued by NCMIC.6 However, when
Dr. Schweigert sought to tender defense of Plaintiffs’ claims to NCMIC, the insurer denied
coverage.7 Dr. Schweigert disputed the denial of coverage, but hired independent counsel
to represent him.8
In May 2017, the parties in the Underlying Action entered into a settlement
agreement (the “Settlement”) without the involvement of NCMIC.9 	The Settlement
contained an Assignment of Claims and a Covenant Not to Execute, which together
provided that all claims Dr. Schweigert may possess against NCMIC were assigned to
Plaintiffs, and Plaintiffs agreed not to “execute on any assets of Dr. Myron Schweigert
other than the proceeds of the assigned claims against” NCMIC.10 	The Settlement also
required Plaintiffs to dismiss all claims against the Clinic as well as Dr. Blake’s
employment-related 	claims.11 	Dr. 	Schweigert’s 	counsel 	informed 	NCMIC 	of 	the
Settlement on June 20, 2017.12 	Consistent with the terms of the Settlement, the Alaska
Superior Court entered a Final Judgment in the Underlying Action on July 3, 2017.13
6 Docket 120-2 at 1.
7 Docket 121-7.
8 Docket 120-5 at 1; Docket 120-4 at 1.
9 Docket 119 at 20.
10 Id. at 13–14.
11 Id. at 2.
12 Docket 120-15 at 1.
13 Docket 121-20.
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On August 3, 2017, Plaintiffs, as assignees under the insurance policy, filed
the present action in Alaska Superior Court (the “Coverage Action”).14 	The Coverage
Action was removed to this Court on September 6, 2017.15
Following removal, this Court dismissed the majority of Plaintiffs’ claims,
narrowing the issues for trial. 	The Court granted in part NCMIC’s Motion to Dismiss,
dismissing Plaintiffs’ claims of bad faith against NCMIC.16 	Later, the Court granted
summary 	judgment 	in 	favor 	of 	NCMIC 	as 	to 	the 	claims 	asserted 	by 	Dr. 	Blake,
Ms. Osterbauer, Ms. Loftus (f/k/a Marsh), and Ms. Ryan.17 	However, the Court denied
summary judgment as to Ms. Taranto, Ms. Williams, and Ms. Asman, finding a triable
issue of fact remained as to these Plaintiffs’ allegations related to Dr. Schweigert’s
administration of ETPS.18
Moving Plaintiffs now request that the Court direct entry of final judgment,
dismissing their claims so that they may file an appeal.
II. 	LEGAL STANDARD
“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 to delay.”19 This
14 Docket 1-1.
15 Docket 1.
16 Docket 29 at 13–14.
17 Docket 140 at 31.
18 Id. at 32–33.
19 Fed. R. Civ. P. 54(b).
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rule “permits district courts to authorize immediate appeal of dispositive rulings on
separate claims in a civil action raising multiple claims” and was adopted “specifically to
avoid the possible injustice of delaying judgment on a distinctly separate claims pending
adjudication of the entire case.”20
A determination under Federal Rule of Civil Procedure 54(b) proceeds in two
steps. First, “[a] district court must [] determine that it is dealing with a ‘final judgment.’”21
The court’s decision “must be a ‘judgment’ in the sense that it is a decision upon a
cognizable claim for relief, and it must be ‘final’ in the sense that it is ‘an ultimate
disposition of an individual claim entered in the course of a multiple claims action.’”22
Once the court determines there is a final judgment, “the district court must
go on to determine whether there is any just reason for delay.”23 	“It is left to the sound
judicial discretion of the district court to determine the appropriate time when each final
decision in a multiple claims action is ready for appeal.”24 	In making this equitable
determination, district courts are instructed to weigh the “inconvenience and costs of
piecemeal review on the one hand and the danger of denying justice by delay on the
other. . . .”25 	Ultimately, judgments under Rule 54(b) represent an exception to the rule
20 Gelboim v. Bank of Am. Corp., 574 U.S. 405, 409–10 (2015) (internal quotations and
alterations omitted).
21 Curtiss-Wright Corp. v. Gen. Elec. Co., 446 U.S. 1, 7 (1980).
22 Id. (quoting Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956)).
23 Id. at 8.
24 Id. (internal quotations and citations omitted).
25 Gillespie v. United States Steel Corp., 379 U.S. 148, 153 (1964); see also Curtiss-Wright
Corp., 446 U.S. at 10 (noting the district court’s evaluation should include “such factors as the
interrelationship of the claims so as to prevent piecemeal appeals in cases which should be
reviewed only as single units”).
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and “sound judicial administration does not require that Rule 54(b) requests be granted
routinely.”26
III. 	DISCUSSION
Moving Plaintiffs argue that the Court should direct entry of final judgment
under Rule 54(b) because the appeal of their claims will not delay the prosecution of the
remaining Plaintiffs’ claims,27 allowing an appeal at this stage could potentially avoid
duplicative trials if the Ninth Circuit were to reinstate Moving Plaintiffs’ claims,28 and
there is no threat of a “piecemeal appeal.”29
NCMIC responds that there is a risk of a piecemeal appeal as either NCMIC
or Plaintiffs with extant claims (“the ETPS Plaintiffs”) are likely to appeal after trial,
potentially leading to a cross-appeal on the issues that would be the subject of Moving
Plaintiffs’ appeal.30 NCMIC asserts that discovery is complete, the ETPS claims are ready
for trial, and that “the only rational and efficient approach” would be to try the ETPS claims
first and then allow this matter to proceed as a single appeal.31 NCMIC additionally notes
that Moving Plaintiffs incorrectly state that Dr. Blake has extant claims and points out that
an appeal of her claims would involve precisely the same issues that Moving Plaintiffs seek
to appeal now.32
26 Curtiss-Wright Corp., 446 U.S. at 10.
27 Docket 142 at 5.
28 Id. at 6.
29 Id. at 7–9.
30 Docket 146 at 6–7.
31 Id. at 7–8.
32 Id. at 6.
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The Court finds that entry of final judgment as to Moving Plaintiffs is
appropriate.
First, the Court’s decisions as to Moving Plaintiffs’ claims constitute final
judgments. 	The Court has rendered final decisions as to all of Moving Plaintiffs’
cognizable claims for relief. 	Plaintiffs’ Complaint alleged three counts: 	a breach of
contract related to NCMIC’s duty to defend, a breach of contract related to NCMIC’s duty
to indemnify, and bad faith.33
In its Order on Defendants’ Motion to Dismiss, the Court dismissed
Plaintiffs’ bad faith claim without prejudice.34 And, it subsequently denied leave to amend
to reassert this claim on two separate occasions.35 Furthermore, the Court’s Order on Cross
Motions for Summary Judgment and Motions to Strike dismissed Moving Plaintiffs’ two
remaining claims.36 	There, the Court concluded that the insurance policy at issue
“precludes coverage for the claims asserted by Dr. Blake, Ms. Osterbauer, Ms. Marsh, and
Ms. Ryan”37 and that “NCMIC is not liable for any portion of the Settlement arising out of
these Plaintiffs’ claims.”38 	In making these decisions, the Court rendered ultimate
dispositions as to all of Moving Plaintiffs’ cognizable claims for relief.
Second, the Court finds that there is no just reason to delay with respect to
Moving Plaintiffs’ claims. Weighing “inconvenience and costs of piecemeal review on the
33 Docket 1-1 at 15–16.
34 Docket 29.
35 Docket 44; Docket 82.
36 Docket 140.
37 Id. at 29.
38 Id. at 32.
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one hand and the danger of denying justice by delay on the other[,]” the danger of delay
outweighs the risk of piecemeal review.39
There certainly is a danger of denying justice by delay. If the Court were to
decline to direct final judgments to be entered, Moving Plaintiffs may wait a significant
time until the remaining claims in this action are adjudicated and a final, appealable order
issues.
Moreover, judicial efficiency may be served by allowing an appeal at this
time. If the Ninth Circuit reverses this Court’s decisions and reinstates Moving Plaintiffs’
claims, those claims might be tried alongside the ETPS Plaintiffs’ claims.40 This would be
more efficient than if Plaintiffs were required to wait until a final judgment issued after
trial on the ETPS Plaintiffs’ claims and the Ninth Circuit reversed, requiring a second trial.
On the other hand, there is little risk of piecemeal review. Defendants argue
that there is a risk of piecemeal review because they may appeal after trial on the ETPS
claim and anticipate that ETPS Plaintiffs would cross-appeal their non-EPTS claims.
However, the single, non-ETPS claim these Plaintiffs asserted—the bad faith claim—was
decided by this Court as a matter of law.41 Therefore, the outcome of Moving Plaintiffs’
39 Gillespie v. United States Steel Corp., 379 U.S. 148, 153 (1964); see also Curtiss-Wright
Corp., 446 U.S. at 10 (noting the district court’s evaluation should include “such factors as the
interrelationship of the claims so as to prevent piecemeal appeals in cases which should be
reviewed only as single units”).
40 The parties make conflicting claims as to the trial readiness of ETPS Plaintiffs’ claims.
Without expressing a view as to whether discovery will be reopened or a trial date will be set more
than a year away, the Court acknowledges that there is a possibility that an appeal may be decided
before a trial proceeds on the remaining Plaintiffs’ ETPS claims.
41 See Docket 29.
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appeal as to this claim would bind ETPS Plaintiffs and preclude a later appeal on the same
issue.
The Court acknowledges that there is a possibility that this case may result
in two appeals. 	But these appeals will not require the Ninth Circuit to review the same
facts as the non-ETPS claims and the ETPS claims are “[s]ufficiently divisible . . . such
that the ‘case would [not] inevitably come back to [the Ninth Circuit] on the same set of
facts.’”42
Defendants also argue that the fact that Dr. Blake is not among Moving
Plaintiffs creates the risk that she will file a separate appeal. To address this concern, the
Court will direct entry of judgment as to Dr. Blake’s claims as well. Although Dr. Blake
is not included among Moving Plaintiffs, her claims have been decided. Dr. Blake asserted
the same three counts as Moving Plaintiffs in the Complaint in this case. 	And the Court
equally dismissed her bad faith claim and granted summary judgment as to her two breach
of contract claims.
IV. 	CONCLUSION
For the reasons stated, the Court GRANTS Moving Plaintiffs’ Motion for
Civil Rule 54(b) Judgment. A final judgment as to Dr. Blake, Ms. Osterbauer, Ms. Loftus
(f/k/a Marsh), and Ms. Ryan shall issue.
IT IS SO ORDERED this 18th day of October, 2023, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
United States District Judge
42 Jewel v. Nat’l Sec. Agency, 810 F.3d 622, 628 (9th Cir. 2015).
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