Fed. R. Civ. P. 54(b) provides: When more than one claim for relief is presented in an action, whether as a claim, counter-claim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more, but less than all of the claims, only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.
Appellant filed a complaint alleging that appellee railroad company conveyed land to appellant's predecessor, improperly reserving the minerals upon or in the land. Appellant asserted that appellee drilling company entered upon the land pursuant to a lease and removed large quantities of oil and gas therefrom. Appellant argued that the purported exception and reservation of the minerals and the lease constituted a cloud upon his title. Appellant's second and third causes of action alleged that appellees, oil and drilling companies, made an unlawful use of appellant's land in connection with drilling operations on adjacent lands. The district court granted summary judgment for appellee railroad company on the first cause of action and entered partial summary judgment for appellees, oil and drilling companies, on the second and third causes of action. The order left for later decision the issues of injunctive relief and damages under appellant's second and third causes of action. Appellant sought review. The court dismissed an appeal from the decision granting summary judgment for appellee railroad company on appellant's claim challenging the validity of the execution of an oil and gas lease, and the grant of partial summary judgment on claims against appellees, oil and drilling companies, for unlawful use of appellant's land. The court found that the district court decision was only as to some of appellant's claims and was premature.
Was the dismissal of the appeal proper?
Neither the order of November 23, 1953, nor the judgment of December 3, 1953, contains 'an express determination that there is no just reason for delay'. Therefore, appellees say, if the rule applies the appeal is premature.