In Sherrod v. Wal-Mart Stores, Inc., No. 21-3428 (6th Cir. May 29, 2024), the Sixth Circuit dismisses an appeal of a wrongful death claim against Wal-Mart—presenting truly bizarre facts—where the panel finds that it should not have been certified for appeal under Rule 54(b) because it was too interrelated with unadjudicated causes of action for negligence, premises liability, survivorship, and loss of consortium.
“The record reveals an unfortunate and, ultimately, tragic chain of events. While visiting Wal-Mart’s sporting goods department, John H. Crawford, III picked up an unpackaged Crosman MK-177 pellet gun. He then carried the pellet gun—which resembles an AR-15 assault rifle—around the store. Alarmed at the sight, a fellow customer phoned 911 to report that someone was loading and waving a weapon in the building.”
“Responding officers Sean Williams and David Darkow arrived at the scene. Observing Crawford with the pellet gun, Darkow commanded him to drop the weapon and get on the ground. Williams believed that Crawford was carrying a genuine assault rifle, which he was about to fire. So Williams fatally shot Crawford within seconds of Darkow’s command.”
The estate and family filed suit against Wal-Mart and other defendants on a variety of theories for Crawford’s death. “Plaintiffs asserted that Wal-Mart was at fault because the pellet gun’s missing packaging included a warning against publicly displaying the gun to prevent others from mistaking it for a real firearm. They added that store employees failed to take reasonable steps to warn Crawford once they learned he was holding the pellet gun and that law enforcement was involved.”
The district court granted summary judgment on the wrongful death claim only and certified it for appeal to the Sixth Circuit under Rule 54(b).
The Sixth Circuit reverses. Rule 54(b) addresses cases that “present[] more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved.” In those instances, the district court “may direct entry of a final judgment as to one or more, but fewer than all, claims or parties,” but “only if the court expressly determines that there is no just reason for delay.”
Reviewing the certification de novo, the panel holds that certification was deficient because the wrongful death claim is intertwined with the other legal theories. “[T]wo separate causes of action (say, for example, one for retaliation and one for breach of contract) can amount to one ‘claim’” under Rule 54(b). “[I]n considering a complaint with multiple causes of action (or counts), we ask whether the district court’s judgment resolved a matter that is ‘distinct’ from the remaining causes of action still before the district court.”
The panel holds that the several causes of action against Wal-Mart are just one claim.
“Plaintiffs’ unadjudicated causes of action for negligence, premises liability, survivorship, and loss of consortium arise from the same acts or omissions as their adjudicated wrongful death cause of action. For each, the same operative facts control: Wal-Mart’s alleged negligence in its pellet gun display policy as well as its failure to secure the gun and warn Crawford, leading to his death . . . . The district court entered final judgment on the wrongful death cause of action. Yet the same basic set of facts—Wal-Mart’s alleged negligence—underlies plaintiffs’ unadjudicated causes of action remaining for trial. In Rule 54(b) parlance, each cause of action arises out of the same claim. Accordingly, Rule 54(b) certification was improper.”
The panel rejects two other theories for preserving appellate jurisdiction over the wrongful death appeal. First, plaintiffs argued that the “their wrongful death cause of action seeks to recover for the harm suffered by Crawford’s family members due to his death, while the survivorship cause of action is tied to Crawford’s pain and suffering.” But the panel holds that “the same alleged negligence on the part of Wal-Mart” underlies all the claims, regardless of the injuries claimed.
Second, plaintiffs argued that Rule 54(b) certification is appropriate where a district court enters final judgment as to “one or more, but fewer than all . . . parties” and that they “satisfied that provision because the district court dismissed Crawford’s father and sons entirely from the case.” Yet, the panel concludes that the relatives remained parties to the undismissed loss of consortium cause of action.
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