In Allis-Chalmers the court stressed that certification should be the exception rather than the rule, and delineated illustrative factors governing the trial court's discretion in certifying a judgment as final under 54(b). The court ruled: In the absence of unusual or harsh circumstances, 14 we believe that the presence of a counterclaim, which could result in a set-off against any amounts due and owing to the plaintiff, weighs heavily against the grant of 54(b) certification.
Plaintiff truck company filed suit against Defendant tire company to rescind a contract purchased in bulk. Plaintiff alleged that during the course of the discussions of the parties, defendant stalled on providing them with updated pricing information for sales, such that by the time they finally provided pricing, it was much higher than market price. Plaintiff asserted that it had no choice but to sign the contract under duress since it needs to honor its commitments. Defendant moved to dismiss or stay the action because it filed a subsequent identical case with another court, and relied on “anticipatory suit” exception to the first-to-file rule. Defendant argued that Plaintiff merely filed an anticipatory suit to secure its choice of forum and only did so under threat of imminent litigation, particularly when plaintiff stopped making payments and defendant threatened to file suit.
Should the present action be dismissed due to the pendency of a subsequently filed identical case?
Under the first-to-file rule, a district court has the discretion to "transfer, stay, or dismiss" the more recently filed of two substantially similar actions pending in different courts. The application of the rule turns on three factors: (1) the chronology of the actions; (2) the similarity of the parties; and (3) the similarity of the issues. The rule, however, will not apply if a court determines that equitable interests counsel otherwise; such as bad faith, anticipatory suit, and forum shopping. Plaintiff's filing of suit here, the day before its payment was due to Defendant, was anticipatory and an effort to deprive Defendant of its choice of forum. Plaintiff performed the contract and its amendment without any assertion of duress for its entire first year. Plaintiff had no preexisting motive to go to court until defendant threatened litigation, thus, plaintiff’s suit was a direct response to defendant’s specific, concrete indications that a suit was imminent.