New Bankruptcy Opinion: IN RE NEW BERN RIVERFRONT DEVELOPMENT, LLC – Bankr. Court, ED North Carolina, 2015

IN RE: NEW BERN RIVERFRONT DEVELOPMENT, LLC, Debtor.

NEW BERN RIVERFRONT DEVELOPMENT, LLC, Plaintiff,

v.

WEAVER COOKE CONSTRUCTION, LLC; TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA; J. DAVIS ARCHITECTS, PLLC; FLUHRER REED PA; and NATIONAL ERECTORS REBAR, INC. f/k/a NATIONAL REINFORCING SYSTEMS, INC., Defendants, and

WEAVER COOKE CONSTRUCTION, LLC; and TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA, Defendants, Counterclaimants, Crossclaimants and Third-Party Plaintiffs,

v.

J. DAVIS ARCHITECTS, PLLC, FLUHRER REED PA, SKYSAIL OWNERS ASSOCIATION, INC.; NATIONAL REINFORCING SYSTEMS, INC., ROBERT P. ARMSTRONG, JR., ROBERT ARMSTRONG, JR., INC., SUMMIT DESIGN GROUP, INC., CAROLINA CUSTOM MOULDING, INC., CURENTON CONCRETE WORKS, INC., WILLIAM H. DAIL d/b/a DD COMPANY, EAST CAROLINA MASONRY, INC., GOURAS, INC., HAMLIN ROOFING SERVICES, INC., HUMPHREY HEATING & AIR CONDITIONING, INC.; PERFORMANCE FIRE PROTECTION, LLC; RANDOLPH STAIR AND RAIL COMPANY; STOCK BUILDING SUPPLY, LLC; PLF OF SANFORD, INC. f/d/b/a LEE WINDOW & DOOR COMPANY; UNITED FORMING, INC. a/d/b/a UNITED CONCRETE, INC.; JOHNSON’S MODERN ELECTRIC COMPANY, INC.; and WATERPROOFING SPECIALITIES, INC., Crossclaimants, Counterclaimants and Third-Party Defendants. and

NATIONAL ERECTORS REBAR, INC. Defendant, Counterclaimant, Crossclaimant and Third-Party Plaintiff,

v.

ROBERT P. ARMSTRONG, JR., ROBERT ARMSTRONG, JR., INC., SUMMIT DESIGN GROUP, INC., JMW CONCRETE CONTRACTORS, and JOHNSON’S MODERN ELECTRIC COMPANY, INC. Third-Party Defendants. and

J. DAVIS ARCHITECTS, PLLC, Third-Party Plaintiff,

v.

MCKIM & CREED, P.A., Third-Party Defendant. and

GOURAS, INC., Third-Party Defendant and Fourth-Party Plaintiff,

v.

RAFAEL HERNANDEZ, JR., CARLOS CHAVEZ d/b/a CHAVEZ DRYWALL, 5 BOYS, INC. and ALEX GARCIA d/b/a/ JC 5, Fourth-Party Defendants. and

STOCK BUILDING SUPPLY, LLC, Third-Party Defendant and Fourth-Party Plaintiff,

v.

CARLOS O. GARCIA, d/b/a/ C.N.N.C., Fourth-Party Defendant.

Case No. 09-10340-8-SWH, Adversary Proceeding No. 10-00023-8-AP

United States Bankruptcy Court, E.D. North Carolina, Raleigh Division.

May 14, 2015.

ORDER REGARDING RULE 54(b) CERTIFICATION OF ORDERS ON SUMMARY JUDGMENT AS FINAL ORDERS

STEPHANI W. HUMRICKHOUSE, Bankruptcy Judge.

In this order, the court will summarize the parties’ efforts to appeal certain orders on summary judgment previously entered by the court in this complex, multi-layered adversary proceeding, and then discuss the bases upon which those orders should be considered “final” for purposes of certification under Rule 54(b) of the Federal Rules of Civil Procedure (made applicable here by Rule 7054 of the Federal Rules of Bankruptcy Procedure). After full consideration, the court will, for the reasons set out below, certify that the orders listed in the attached Exhibit A, Groups A, B, C and D are final adjudications as to which there is no just reason for delay in the parties’ efforts to seek immediate appeal of the resolved claims.

BACKGROUND

New Bern Riverfront Development, LLC (“New Bern”) is the owner and developer of the SkySail Luxury Condominiums (“SkySail”) located in New Bern, North Carolina. In March of 2009, New Bern initiated an action in Wake County Superior Court against nine individual defendants related to their roles in the construction of SkySail (the “state action”). The named defendants in the state action included New Bern’s general contractor, Weaver Cooke; Travelers Casualty and Surety Company of America (“Travelers”); National Erectors Rebar, Inc. (“National Erectors”), and certain subcontractors of the general contractor.

On November 30, 2009, New Bern filed a petition for relief under chapter 11. The state action was removed to the district court, and subsequently transferred to this court on February 3, 2010. After voluntarily dismissing its causes of action as to the subcontractors named as defendants in the original 2009 state action, New Bern filed its first amended complaint on May 6, 2010, asserting claims against Weaver Cooke and others. Weaver Cooke filed a timely answer, along with a third-party complaint against two banks. Absent as third-party defendants in Weaver Cooke’s original third-party complaint were any of the subcontractors hired by Weaver Cooke during the construction of SkySail.

Two years later, in June of 2012, Weaver Cooke filed its second, third-party complaint asserting claims of negligence, contractual indemnity and breach of express warranty against many of the subcontractors hired during the construction of SkySail. These subcontractors filed answers to Weaver Cooke’s second, third-party complaint, asserting numerous defenses, including the statute of limitations. The adversary proceeding (“AP”) ultimately came to include twenty-nine parties connected with the SkySail project, and asserts only non-core claims based on state law contract, negligence, and indemnity causes of action.

During December 2013, virtually all of the subcontractors filed motions for summary judgment regarding all three causes of action alleged against them by Weaver Cooke, and these parties set out similar grounds for their motions. In a total of twenty-six motions and cross-motions for summary judgment, the parties argued that (1) the applicable statute of limitations bars Weaver Cooke’s claims of negligence and breach of express warranty; (2) the economic loss rule bars Weaver Cooke’s negligence claims; and (3) N.C. Gen. Stat. § 22B-1 bars Weaver Cooke’s contractual indemnity claims. Upon review of the motions, it became apparent to the court that certain fact sets and legal arguments were common to most or all parties. The indemnity agreement, for example, was part of a standard contract used by Weaver Cooke with little deviation among subcontractors.

In addition, certain groups and common fact sets emerged among the parties themselves, which was the natural result of the collaborative nature of large-scale construction projects such as SkySail. For example, water intrusion and failures of the post-tension concrete system involving multiple parties form the basis for most of the claims. Due to the “sequencing” requirement of construction work, claims of negligence or breach of express warranty in the design and construction of SkySail tended to involve questions of joint responsibility among these discrete groups of defendants.

In light of the foregoing, the court opted to deal with the summary judgment motions in “batches” based on these common fact sets, legal arguments, and groups of defendants. The court ruled first on the statute of limitations defense for all parties asserting it, then on the claims of negligence and breach of express warranty, and then on Weaver Cooke’s claims for indemnification. The court’s disposition of those motions, in a total of thirty-eight orders, resulted in dismissal of nine parties from the AP and prompted seventeen motions for leave to appeal (most of which were also denominated as “notices of appeal”), nine motions to reconsider (which number is anticipated to increase), and one motion for certification under Rule 54(b). These motions are listed in the chart appended to this order as Exhibit A.

Finally, the last crucial factor with regard to the current posture of this proceeding — as well as a key factor going forward, and significantly influencing this court’s certification analysis — is the parties’ right to trial by jury with respect to the claims that remain pending. Their full range of options include trial by jury in district court, trial by jury in the bankruptcy court, or a non-jury trial in either court. There is no consensus among the parties, as evidenced by the chart appended to this order as Exhibit B. Some have waived their jury trial right, while others have consented to trial in the bankruptcy court, and still others demand a jury trial in district court. Thus, the trial will be in district court unless the parties change tack and waive their jury rights, and/or consent to this court’s entry of final judgments, neither of which appear likely. [1] 28 U.S.C. § 157(e) (if right to jury trial applies, bankruptcy judge may conduct trial with special designation of district court “and with the express consent of all the parties”).

With this procedural history in mind, the court will briefly summarize the nature of the parties’ efforts to appeal the summary judgment orders, as set out in Exhibit A:

1. Groups A and B: Notices of Appeal and Motions for Leave to Appeal

A total of seventeen notices of appeal were filed by Weaver Cooke (13), National Erectors Rebar (“National Erectors”) (3), and East Carolina Masonry (1 cross-appeal). With a few exceptions, [2] those parties also filed motions for leave to appeal those same interlocutory summary judgment orders pursuant to 28 U.S.C. § 158(a)(3). Motions under § 158(a)(3) invoke application of a two-prong test pursuant to which “a district court will grant leave to appeal when 1) the interlocutory order involves a controlling question of law as to which there is substantial ground for a difference of opinion, and 2) immediate appeal would materially advance the termination of litigation.” Weaver Cooke Constr., LLC v. Stock Bldg, Supply, LLC, Case No. 5:14-cv-00475-BR (E.D.N.C. October 16, 2014) (slip op. at 3). A movant must satisfy both prongs and, in addition, demonstrate that “exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.” Id. at 4 (internal quotation omitted).

The first wave of appeals to reach the district court, all filed by Weaver Cooke, were denied on grounds that appellants presented no evidence that the appeals involved issues of controlling questions of law, no evidence of disagreement among the courts with respect to controlling law, and no set of circumstances exceptional enough to justify their request, such that § 158(a)(3) provided no foundation for the relief appellants sought. See Exhibit A, Group B. The remaining notices of appeal and motions for leave to appeal are pending before the district court and deal with the same general fact sets and issues of law as their predecessors. For these as well, § 158(a)(3) will provide no viable basis for relief. [3]

2. Group C: Motions for Reconsideration

Some parties, instead of immediately pursuing appeal, moved for reconsideration or for the court to alter or amend its order on summary judgment. See Exhibit A, Group C. The court allowed one of the motions to reconsider, entered a clarifying order with respect to another, and denied the remainder (save for several motions still pending). Most of the motions to reconsider that were denied by the court have now been appealed (again by notice of appeal, motion for leave for appeal, or both). For present purposes, although these motions are captioned differently, the question of whether to certify them as final and the bases upon which this court determines that it would be appropriate to do so are substantively equivalent to the court’s analysis with respect to the orders listed in Groups A, B, and D. [4] See Saint Anne’s Dev’t Co., Inc. v. Trabich, 443 Fed. App’x 829, 831-33 (4th Cir. 2011) (explaining that motions to reconsider may be considered under Rule 54(b)).

3. Group D: Motion for Certification Pursuant to Rule 54(b)

Finally, one motion for certification was filed by National Erectors. National Erector’s motion was premised on the court’s order (Docket # 923) granting summary judgment to NRS and dismissing NRS on the single ground that NRS was not a proper party to the action, having been subsumed into National Erectors via merger. [5] The court allowed the motion for certification by order entered March 31, 2015, which provided that the factual findings and conclusions of law in support of that Rule 54(b) certification would follow. Those findings and conclusions are set out in the discussion below. They also are identical to the reasons the court will, sua sponte, certify the orders listed in Exhibit A, Groups A, B, and C as final adjudications pursuant to Rule 54(b). The grounds upon which the court reaches that conclusion, and upon which the court recommends the district court’s certification of those orders as final adjudications for purposes of appeal, are set out below.

DISCUSSION AND CERTIFICATION OF ORDERS AS FINAL ORDERS PURSUANT TO RULE 54(b)

Rule 54(b) of the Federal Rules of Civil Procedure, made applicable in bankruptcy by Rule 7054 of the Federal Rules of Bankruptcy Procedure, provides as follows:

(b) Judgment on Multiple Claims or Involving Multiple Parties. 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 of 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). A party seeking certification must demonstrate the propriety of its request through satisfaction of a two-part test, and a court entering such certification must articulate the bases upon which it does so. See, e.g., In re Solomons One, LLC, 2014 WL 846084 (Bankr. D. Md. 2014) (setting out bankruptcy court’s proposed statement of material facts, conclusions of law, and Rule 54(b) certification, as well as the district court order adopting same); Henson v. Santander, 2015 WL 433475 (D. Md. 2015) (discussing, and granting, motion for entry of final judgment and certification under Rule 54(b) in context of class-action lawsuit). In the interest of thoroughness, this court will follow the lead of the Solomons One court and certify its own orders as final, while also proffering these findings and conclusions as a basis for certification by the district court, inasmuch as the precise procedure appears to vary from court to court.

In the Henson case, the district court set out a fresh and thorough recap of the Rule 54(b) certification process in this circuit, providing an excellent overview that is worthy of quoting at length:

A party seeking Rule 54(b) certification must “demonstrate that the case warrants certification” through a two part test…. First, the district court must ascertain whether the judgment in question is final. A judgment is final when it is “an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 436 (1956) . Second, a court must “expressly determine[] that there is no just reason for delay.” Fed. R. Civ. P. 54(b); see also Curtis-Wright Corp. v. General Electric Co., 446 U.S. 1, 8 (1980) . This review is “tilted from the start against fragmentation of appeals[.]” Braswell Shipyards, Inc. v. Beazer East, Inc., 2 F.3d 1331, 1335 (4th Cir. 1993) (internal quotation omitted). In undertaking this inquiry, a district court must consider five factors, if applicable:

(1) the relationship between the adjudicated and unadjudicated claims; (2) the possibility that the need for review might or might not be mooted by future developments in the district court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; (4) the presence or absence of a claim or counterclaim which could result in a set-off against the judgment sought to be made final; [and] (5) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like.

Braswell Shipyards, 2 F.3d at 1335-36 (quoting Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir. 1975) (footnotes omitted)). If the court grants a Rule 54(b) certification, it must “state [its] findings on the record or in its order.” Id. at 1336 (citation omitted).

Henson, 2015 WL 433475 *3-4 (emphasis added).

Moreover, in this circuit, as in others, certification under Rule 54(b) is “recognized as the exception rather than the norm.” Braswell Shipyards, 2 F.3d at 1335 . Certification is not granted as an “accommodation to counsel,” but is instead reserved for “`the unusual case in which the costs and risks of multiplying the number of proceedings and overcrowding the appellate docket are outbalanced by pressing needs of the litigants for an early and separate judgment as to some claims or parties.'” Id. (quoting Morrison-Knudson Co. v. Archer, 655 F.2d 962, 965 (9th Cir. 1981) ). With these parameters in mind, the court turns to the first factor.

I. Finality

An order or judgment may be deemed “final” if it “disposes of all the rights and liabilities of at least one party as to at least one claim.” In re Fuentes, 417 B.R. 844, 849 (1st Cir. BAP 2009) (citing cases); see also Braswell Shipyards, 2 F.3d at 1335 (discussing Rule 54(b) certification of appealable interlocutory orders).

Typically, in a bankruptcy proceeding, the concept of “finality” is more flexible. As the Court of Appeals for the Fourth Circuit recently explained:

We have recognized as a general matter, as have other courts of appeals, that “the concept of finality in bankruptcy cases `has traditionally been applied in a more pragmatic and less technical way … than in other situations.'” In re Computer Learning Ctrs., Inc., 407 F.3d 656, 660 (4th Cir. 2005) (quoting A.H. Robins Co. v. Piccinin, 788 F. 2d 994, 1009 (4th Cir. 1986) (alteration in original)) (additional citations omitted). As we explained in A.H. Robins Co.:

The special or unique reason for this relaxed rule of appealability in bankruptcy is that “[b]ankruptcy cases frequently involve protracted proceedings with many parties participating. To avoid the waste of time and resources that might result from reviewing discrete portions of the action only after a plan of reorganization is approved, courts have permitted appellate review of orders that in other contexts might be considered interlocutory.

788 F.2d at 1009 (internal quotations omitted). Thus, because of the special nature of bankruptcy proceedings, which often involve multiple parties, claims, and procedures, the postponing of review by the district court and the court of appeals of discrete issues could result in the waste of valuable time and already scarce resources…. We have concluded, therefore, that “orders in bankruptcy cases may be immediately appealed if they finally dispose of discrete disputes within the larger case.” …

McDow v. Dudley (In re Dudley), 662 F. 3d 284, 287 (4th Cir. 2011) (some internal citations omitted). In Dudley, the specific issue before the court was whether a bankruptcy court’s denial of a § 707(b) motion to dismiss for abuse was immediately appealable. Concluding that it was, the Dudley court cautioned that postponing appeal while the bankruptcy case continued would “result in most if not all of those assets being liquidated and distributed under Chapter 7 — actions that will have to be unwound, if possible, in the event that the district court disagrees with the bankruptcy court’s legal conclusions with respect to the merits of the § 707(b) motion.” Id. at 290. In the instant matter, while the court’s focus is not on the risk of potentially unwinding a bankruptcy proceeding, there is a significant risk of building into an already complicated adversary proceeding a repetitive “loop-de-loop” of trials and appeals for the district court and parties.

In this proceeding, each of the orders on summary judgment encompasses the necessary aspects of finality. First, the court undertook an analysis of the statute of limitations defense asserted by the subcontractor tiers of defendants. The court resolved the issue of which statute of limitations was applicable and then determined that the statute of limitations barred both the negligence and breach of warranty claims as a matter of law as to many of those subcontractors. Next, the court focused on those subcontractors who had not succeeded on their statute of limitations defenses, and as to whom the negligence claims survived, and applied the economic loss rule defense. This resulted in the dismissal of several negligence claims. Finally, the court reviewed the contractual indemnity clause which formed the basis for Weaver Cooke’s contractual indemnity cause of action, and interpreted it under North Carolina law such that many of those causes of action also were eliminated. The result of these three “rounds of review” is that all claims asserted against nine parties were dismissed, and although many parties remain in the adversary proceeding, the claims against them have been reduced. In short, the complexion of the lawsuit has been significantly changed.

II. No Just Reason For Delay

Once a court concludes that an order satisfies the standards of finality, the court must then consider whether there is “no just reason for delay,” which is necessarily a subjective assessment based on the particular circumstances of the matter. As the Fourth Circuit has pointed out:

This inquiry, “tilted from the start against fragmentation of appeals, is necessarily case-specific.” Spiegel v. Trustees of Tufts College, 843 F.2d 38, 43 (1 st Cir. 1988) ; see also Curtis-Wright, 446 U.S. at 10-11, 100 S. Ct. 1466-67 (because the number of possible [Rule 54(b)] situations is large, we are reluctant to either fix or sanction narrow guidelines for district courts to follow”).

Braswell Shipyards, 2 F.3d at 1335 . Here, of the factors listed earlier, only the fourth (regarding the likelihood of a set-off against the judgment sought to be made final) does not apply.

The first three factors emphasize the purely judicial concerns that are front and center in this matter, and are themselves somewhat intertwined: 1) The relationship between the adjudicated and unadjudicated claims; 2) the possibility that the need for review might or might not be mooted by future developments in the district court; and 3) the possibility that the district court could be obliged to consider the same issue a second time. They, along with the final “miscellaneous” factor, persuade the court that not only is there no just reason for delay, instead, these factors illustrate the need for and weigh strongly in favor of immediate appeal to the district court.

Regarding the first factor, the court recognizes that the more typical Rule 54(b) evaluation involves a court’s consideration of whether the judgment sought to be certified involves a claim that presents a sufficiently discrete legal issue, susceptible to a clean separation from the remaining proceedings, or a comparable scenario with a party. See, e.g., Solomons One, 2014 WL 846084 at * 11 (relationship between the count at issue and remaining counts was “fairly remote”). The instant matter presents a unique analysis of this factor. Here, the relationships between the adjudicated and non-adjudicated claims are thoroughly intertwined. The same is true of the relationships between the parties still involved in the proceeding and those parties that have been dismissed, or those parties with some of their claims dismissed. However, a final determination of the appropriate statute of limitations, the applicability of the economic loss rule, and proper interpretation of the contractual indemnity clause, which are all discrete legal issues, would significantly focus and provide guidelines for the remaining parties. Moreover, an appellate resolution of these three issues will streamline the trial of the adversary proceeding and promote settlement discussion.

Perhaps a forecast of what would result if these orders were not certified best displays the relationship between the adjudicated and non-adjudicated claims and why immediate appeal is clearly preferable. For example, Stock Supply, which provided the materials and installed the windows and doors at the SkySail project, was granted summary judgment on all claims asserted against it in the third-party complaint of general contractor Weaver Cooke. Weaver Cooke took the position that Stock Supply, along with various other subcontractors, failed to properly discharge their work such that the project was damaged by water intrusion. Because of the sequential and interdependent nature of the subcontractors’ work, facts relating to the work done by any one subcontractor will necessarily be introduced regarding another subcontractor’s claims and/or defenses at trial, even if that subcontractor already has been dismissed entirely from the proceeding as a result of the summary judgment rulings. Stock Supply, although successful on its summary judgment motions, will have to be present throughout the trial to monitor the proceedings and protect its interests in the event the bankruptcy court orders are reversed on appeal. A similar result occurs in the case of NRS’ dismissal from the case. Unless appeal of that order is immediate, NRS (or more likely, its former officers) will also have to sit through the trial to monitor and protect its interests pending a post-trial appeal.

Immediate review and affirmance of the bankruptcy court orders as to Stock Supply and NRS, for example, will relieve those parties from the burden and expense of continued participation in this adversary proceeding. Immediate review and reversal of the bankruptcy court orders as to Stock Supply and NRS, or those similarly situated, will allow those parties to freely and finally participate in the trial. Most important, a final appellate determination of the applicable statute of limitation, the proper interpretation and application of the economic loss rule in this district, and the proper application of North Carolina’s statutory contractual indemnity limitations will be infinitely instructive to the remaining claimants in the case.

The related nature of the claims involved in the summary judgment orders and those still awaiting trial also is relevant with respect to the second factor, which focuses on the possibility that the need for review might (or might not) be mooted by future developments in the district court, and the third, which focuses on the likelihood that the district court could be obliged to consider the same issue a second time. These factors are especially relevant when assessed against the implications of the right to a jury trial in this case. As the case presently stands, assuming consensus to hold a jury trial in bankruptcy court or to waive jury trial entirely is not achieved, the trial of this case will be held in district court. It is undisputed, therefore, that the district court will sit as both an appellate and a trial court as to many issues in this adversary proceeding. So, if appeals of the bankruptcy court orders are not heard until after conclusion of the full trial, then the district court will have tried the underlying case without participation of the parties dismissed from the proceeding by this court (including, for example, Stock Supply and NRS), and without hearing the claims this court dismissed. At the conclusion of that trial, the district court will then be required to hear the appeals of this court’s summary judgment rulings using an appellate (de novo) standard of review. If the district court were to find error, additional proceedings may take place in either the bankruptcy court or the district court sitting as a trial court, and the cycle stands to repeat itself again. This scenario involves not only an unwinding but also a do-over, in an extraordinarily inefficient process that would waste time and resources for the court and the parties as well.

Clearly, the proper and most efficient procedure would be for the district court, acting as an appellate court, to hear the bankruptcy court appeals first, before embarking upon a trial of this case. Because the genesis of this proceeding is a large-scale construction project gone wrong, with multiple and interrelated parties, as well as proportional negligence and responsibility, having the right parties “in the room” is essential to thorough, efficient, and fair resolution of the claims. See Mercado v. Ritz-Carlton San Juan Hotel, Spa & Casino, 410 F.3d 41, 46 (1st Cir. 2005) (upholding lower court’s Rule 54(b) certification, despite that court’s lack of explanation for it, where the “circumstances plainly support[ed]” an appeal because “if the district court ruling dismissing [two employees’] claims proved to be incorrect, the most efficient course of action would be for all three employees’ claims to be tried together”).

Finally, considering all miscellaneous factors such as delay, economic and solvency considerations — it is often forgotten that the plaintiff in this case is in fact a chapter 11 debtor with limited resources — shortening the time of trial, frivolity of competing claims, expense, and the like, the court again concludes that not only is there no just reason for delay, there are instead multiple reasons for certification.

CONCLUSION

For the foregoing reasons, the court hereby certifies the orders listed in Groups A, B, and C of the attached Exhibit A as final orders pursuant to Rule 54(b). As to each of those, and also with respect to the motion for certification filed by National Erectors and already allowed by this court, the orders are final within the meaning of Rule 54(b) in that they constitute ultimate dispositions of individual claims in this multi-claim action, or finally determine the status of a party. Moreover, there is no just reason for delay. The uniquely intertwined nature of the facts, claims, and parties in this adversary proceeding, together with the fact that the trial of this matter ultimately will take place in the district court, persuade this court that judicial efficiency, common sense, and the interests of all parties are best served by certification.

Further, the court submits this order as proposed findings of fact and conclusions of law supporting certification by the district court of the orders discussed in Exhibit A, Groups A, B, C, and D as final orders within the meaning of Rule 54(b).

Further, in connection with that recommendation of certification, the bankruptcy court respectfully requests, with regard to Weaver Cooke’s motions for leave to appeal under § 158(a)(3) that already have been denied, that for those motions, the district court reconsider them as motions for leave to appeal final orders encompassed by the Rule 54(b) certification made by this court.

EXHIBIT A

Disposition of Summary Judgment Motions

GROUP A: NOTICES OF APPEAL*

*Does not include appeals taken from orders on Motions for Reconsideration (see Group C, below).

Parties
(*filed summary Basis for Summary
judgment motion) Judgment Motion Bankruptcy Court Ruling Notice of Appeal

Weaver Cooke • Statute of limitations 1. Doc. No. 884: Granted as 1. Notice of Appeal filed
Construction, LLC v. • Economic loss rule to statute of limitations by Weaver Cooke re: Doc.
Stock Building (Negligence) (negligence and warranty No. 884
Supply, LLC* • Indemnity defenses claims)
2. Notice of Appeal filed
2. Doc. No. 898: Granted as by Weaver Cooke re: Doc.
to indemnity claim No. 898

• Pending resolution of
appeals, this party is no
longer in the case

Weaver Cooke • Statute of limitations 1. Doc. No. 901: Granted as 1. Notice of Appeal filed
Construction, LLC v. • Economic loss rule to statute of limitations by Weaver Cooke re: Doc.
Curenton Concrete (Negligence) (negligence and warranty No. 901
Works, Inc.* • Indemnity defenses claims) 2. Notice of Appeal filed

2. Doc. No. 957: Granted as by Weaver Cooke re: Doc.
to indemnity claim No. 957

• Pending resolution of
appeals, this party is no
longer in the case

Weaver Cooke • Statute of limitations 1. Doc. No. 904: Granted as 1. Notice of Appeal filed
Construction, LLC v. • Economic loss rule to statute of limitations by Weaver Cooke re: Doc.
Waterproofing (Negligence) (certain defect claims), and No. 904
Specialties, Inc. * • Indemnity defenses certain negligence and
• Contributory breach of warranty claims
negligence 2. Doc. No. 955: Granted as 2. Notice of Appeal filed
• Lack of defects to indemnity claim by Weaver Cooke re: Doc.
No. 955

Weaver Cooke • Statute of limitations Doc. No. 923: Granted Notice of Appeal filed by
Construction, LLC v. • Lack of professional because NRS not a proper National Erectors Rebar
National Reinforcing duty of care party (as an aggrieved party)
Systems, Inc.* • Contributory
negligence • Pending resolution of
• Indemnity defenses appeals, this party is no
• Warranty defenses longer in the case

Weaver Cooke • Statute of limitations 1. Doc. No. 935: Granted in 1. Notice of Appeal filed
Construction, LLC v. • Economic loss rule part as to negligence claim by Weaver Cooke re: Doc.
East Carolina (Negligence) (structural defects) and No. 935
Masonry, Inc.* • Contributory denied as to certain other 2. Notice of Appeal filed
negligence defects by Weaver Cooke re: Doc.
• Warranty defenses 2. Doc. No. 954: Granted as No. 954
• Indemnity defenses to indemnity claim 3. Notice of Cross Appeal
3. Doc. No. 969: Denied as filed by East Carolina
to breach of warranty claim Masonry re: Doc. No. 935

Weaver Cooke • Statute of limitations 1. Doc. No. 934: Granted as 1. Notice of Appeal filed
Construction, LLC v. • Economic loss rule to negligence claim by Weaver Cooke re: Doc.
Randolph Stair and (Negligence) 2. Doc. No. 958: Granted as No. 934
Rail Company* • Indemnity defenses to indemnity claim 2. Notice of Appeal filed
by Weaver Cooke re: Doc.
No. 958

New Bern Riverfront • Economic loss rule Doc. No. 941: Motion Notice of Appeal filed by
Development, LLC v. (negligence) denied National Erectors Rebar
National Erectors • Lack of professional
Rebar, Inc. * negligence
• Contributory
negligence

Weaver Cooke • Statute of limitations Doc. No. 956: Granted as to Notice of Appeal filed by
Construction, LLC v. • Economic loss rule indemnity claim Weaver Cooke
Gouras, Inc. * (Negligence)
• Indemnity defenses

Weaver Cooke • Statute of limitations Doc. No. 953: Granted as to Notice of Appeal filed by
Construction, LLC v. • Economic loss rule indemnity claim Weaver Cooke
Hamlin Roofing (Negligence)
Company, Inc. * and • Contributory
Hamlin Roofing negligence
Services, Inc. • Indemnity defenses

Weaver Cooke • Statute of limitations Doc. No. 951: Granted as to Notice of Appeal filed by
Construction, LLC v. • Economic loss rule statute of limitations Weaver Cooke
Humphrey Heating (negligence) (negligence and warranty
and Air Conditioning, • Warranty defenses claims); granted in
Inc.* • Indemnity defenses part/denied in part as to
indemnity claims

New Bern Riverfront • Economic loss rule Doc. No. 970: Denied as to Notice of Appeal filed by
Development, LLC v. (negligence) all crossclaims except National Erectors Rebar
Weaver Cooke • Lack of professional indemnity claim re: designrelated
Construction, LLC, negligence damages
National Erectors • Indemnity defenses
Rebar, Inc. * • Contributory
negligence

GROUP B: MOTIONS FOR LEAVE TO APPEAL

Parties
(*filed summary Basis for Summary Motion for Leave to
judgment motion) Judgment Motion Bankruptcy Court Ruling Appeal

Weaver Cooke • Statute of limitations 1. Doc. No. 884: Granted as 1. Motion for Leave to
Construction, LLC v. • Economic loss rule to statute of limitations Appeal filed by Weaver
Stock Building (Negligence) (negligence and warranty Cooke re: Doc. No. 884
Supply, LLC* • Indemnity defenses claims) {in addition to Notice of Appeal}

• District Court denied
2. Doc. No. 898: Granted as both motions for leave
to indemnity claim to appeal on 10/16/14
2. Motion for Leave to
• Pending resolution of Appeal filed by Weaver
appeals, this party is no Cooke re: Doc. No. 898
longer in the case {in addition to Notice of Appeal}
• District Court denied
both motions for leave
to appeal on 10/16/14

Weaver Cooke • Statute of limitations 1. Doc. No. 901: Granted as 1. Motion for Leave to
Construction, LLC v. • Economic loss rule to statute of limitations Appeal filed by Weaver
Curenton Concrete (Negligence) (negligence and warranty Cooke re: Doc. No. 901
Works, Inc.* • Indemnity defenses claims) {in addition to Notice of Appeal}
• District Court denied
motion for leave to
2. Doc. No. 957: Granted as appeal on 10/16/14
to indemnity claim 2. Motion for Leave to
Appeal filed by Weaver
• Pending resolution of Cooke re: Doc. No. 957
appeals, this party is no {in addition to Notice of Appeal}
longer in the case • District Court denied
motion for leave to
appeal on 11/17/14

Weaver Cooke • Statute of limitations 1. Doc. No. 904: Granted as 1. Motion for Leave to
Construction, LLC v. • Economic loss rule to statute of limitations Appeal filed by Weaver
Waterproofing (Negligence) (certain defect claims), and Cooke re: Doc. No. 904
Specialties, Inc. * • Indemnity defenses certain negligence and {in addition to Notice of Appeal}
• Contributory breach of warranty claims • District Court denied
negligence motion for leave to
• Lack of defects 2. Doc. No. 955: Granted as appeal on 10/16/14
to indemnity claim 2. Motion for Leave to
Appeal filed by Weaver
Cooke re: Doc. No. 955
{in addition to Notice of Appeal}
• District Court denied
motion for leave to
appeal on 11/17/14

Weaver Cooke • Statute of limitations 1. Doc. No. 935: Granted in 1. Motion for Leave to
Construction, LLC v. • Economic loss rule part as to negligence claim Appeal filed by Weaver
East Carolina (Negligence) (structural defects) and Cooke re: Doc. No. 935
Masonry, Inc.* • Contributory denied as to certain other {in addition to Notice of Appeal}
negligence defects • District Court denied
• Warranty defenses motion for leave to
• Indemnity defenses 2. Doc. No. 954: Granted as appeal on 11/17/14
to indemnity claim 2. Motion for Leave to
Appeal filed by Weaver
3. Doc. No. 969: Denied as Cooke re: Doc. No. 954
to breach of warranty claim {in addition to Notice of Appeal}
• District Court denied
motion for leave to
appeal on 11/17/14
3. Motion for Leave to
Appeal filed by Weaver
Cooke re: Doc. No. 969
4. Motion for Leave to
Appeal filed by East
Carolina Masonry re: Doc.
No. 935
{in addition to Cross Appeal}

Weaver Cooke • Statute of limitations 1. Doc. No. 934: Granted as 1. Motion for Leave to
Construction, LLC v. • Economic loss rule to negligence claim Appeal filed by Weaver
Randolph Stair and (Negligence) Cooke re: Doc. No. 934
Rail Company* • Indemnity defenses 2. Doc. No. 958: Granted as {in addition to Notice of Appeal}
to indemnity claim • District Court denied
motion for leave to
appeal on 11/17/14
2. Motion for Leave to
Appeal filed by Weaver
Cooke re: Doc. No. 958
{in addition to Notice of Appeal}
• District Court denied
motion for leave to
appeal on 11/17/14

New Bern Riverfront • Economic loss rule Doc. No. 941: Motion Motion for Leave to
Development, LLC v. (negligence) denied Appeal filed by National
National Erectors • Lack of professional Erectors Rebar
Rebar, Inc. * negligence {in addition to Notice of Appeal}
• Contributory
negligence

Weaver Cooke • Statute of limitations Doc. No. 956: Granted as to Motion for Leave to
Construction, LLC v. • Economic loss rule indemnity claim Appeal filed by Weaver
Gouras, Inc. * (Negligence) Cooke
• Indemnity defenses {in addition to Notice of Appeal}
• District Court denied
motion for leave to
appeal on 11/17/14
Weaver Cooke • Statute of limitations Doc. No. 953: Granted as to Motion for Leave to
Construction, LLC v. • Economic loss rule indemnity claim Appeal filed by Weaver
Hamlin Roofing (Negligence) Cooke
Company, Inc.* and • Contributory {in addition to Notice of Appeal}
Hamlin Roofing negligence • District Court denied
Services, Inc.* • Indemnity defenses motion for leave to
appeal on 11/17/14
Weaver Cooke • Statute of limitations Doc. No. 951: Granted as to Motion for Leave to
Construction, LLC v. • Economic loss rule statute of limitations Appeal filed by Weaver
Humphrey Heating (negligence) (negligence and warranty Cooke
and Air Conditioning, • Warranty defenses claims); granted in {in addition to Notice of Appeal}
Inc.* • Indemnity defenses part/denied in part as to • District Court denied
indemnity claims motion for leave to
appeal on 11/17/14
New Bern Riverfront • Economic loss rule Doc. No. 970: Denied as to Motion for Leave to
Development, LLC v. (negligence) all crossclaims except Appeal filed by National
Weaver Cooke • Lack of professional indemnity claim re: design- Erectors Rebar
Construction, LLC, negligence related damages {in addition to Notice of Appeal}
National Erectors • Indemnity defenses
Rebar, Inc. * • Contributory
negligence

GROUP C: MOTIONS FOR RECONSIDERATION

Parties
(*filed summary Basis for Summary Motion for
judgment motion) Judgment Motion Bankruptcy Court Ruling Reconsideration

Weaver Cooke • Statute of limitations Doc. No. 923: Granted Motion to Alter or Amend
Construction, LLC v. • Lack of professional because NRS not a proper Order filed by National
National Reinforcing duty of care party Reinforcing Systems
Systems, Inc.* • Contributory • Bankruptcy Court denied
negligence • Pending resolution of motion (Doc. No. 1143)
• Indemnity defenses appeals, this party is no • Notice of Appeal and
• Warrant defenses longer in the case Motion for Leave to
Appeal filed by National
Erectors Rebar (as
aggrieved party)

National Erectors • Lack of direct Doc. No. 967: Motion Motion to Reconsider filed
Rebar, Inc. v. JMW negligence denied by JMW Concrete
Concrete Contractors* • Economic loss rule Contractors
• Bankruptcy Court denied
motion (Doc. No. 1145)
• Notice of Appeal and
Motion for Leave to
Appeal filed by JMW
Concrete Contractors as
to Doc. Nos. 967 and
1145

Weaver Cooke • Statute of limitations Doc. No. 969: Denied as to Motion to Reconsider filed
Construction, LLC v. • Economic loss rule breach of warranty claim by East Carolina Masonry
East Carolina (Negligence) • Bankruptcy Court denied
Masonry, Inc.* • Contributory motion (Doc. No. 1133
negligence • Notice of Appeal and
• Warranty defenses Motion for Leave to
• Indemnity defenses Appeal filed by East
Carolina Masonry as to
Doc. Nos. 969 and 1133

National Erectors • Derivative claim Doc. No. 972: Motion Motion to Reconsider filed
Rebar, Inc. v. defenses denied by Johnson’s Modern
Johnson’s Modern Electric
Electric Company, • Bankruptcy Court denied
Inc.* motion (Doc. No. 1152)

New Bern Riverfront • Defenses to claim Doc. No. 1115: Motion Motion to Reconsider and
Development, LLC v. for consequential denied Amend Order filed by
Travelers Casualty damages Traveler’s Casualty and
and Surety Company Surety Company of
of America* America
• Bankruptcy Court
granted motion (Doc. No.
1137)

Weaver Cooke • Statute of limitations 1. Doc. No. 904: Granted as Motion for Clarification of
Construction, LLC v. • Economic loss rule to statute of limitations Orders filed by
Waterproofing (Negligence) (certain defect claims), and Waterproofing Specialties
Specialties, Inc.* • Indemnity defenses certain negligence and • Bankruptcy Court
• Contributory breach of warranty claims clarified order as to
negligence resolved and remaining
• Lack of defects 2. Doc. No. 955: Granted as claims (Doc. No. 1144)
to indemnity claim • Notice of Appeal and
Motion for Leave to Appeal filed by
Waterproofing
Specialties as to Doc. No.
1144
• Notice of Appeal and
Motion for Leave to
Appeal filed by Weaver
Cooke as to Doc. No.
1144

Weaver Cooke • Statute of limitations Doc. No. 882: Denied as to Motion to Reconsider and
Construction, LLC v. • Economic loss rule statute of limitations defense Amend Order filed by East
East Carolina (Negligence) (negligence and warranty Carolina Masonry
Masonry, Inc.* • Contributory claims) • Pending Bankruptcy
negligence Court Ruling
• Warranty defenses
• Indemnity defenses

Weaver Cooke • Statute of limitations Doc. No. 905: Denied as to Motion to Reconsider filed
Construction, LLC v. • Economic loss rule statute of limitations defense by Randolph Stair and Rail
Randolph Stair and (Negligence) (negligence and warranty Company
Rail Company* • Indemnity defenses claims) • Pending Bankruptcy
Court Ruling

National Erectors • Defenses to claims Doc. No. 940: Motion Motion to Reconsider filed
Rebar, Inc. v. Summit of professional denied by Summit Design, Inc.,
Design, Inc.*, Robert negligence raised by Robert P. Armstrong, Jr.,
P. Armstrong, Jr.*, Weaver Cooke and and Robert P. Armstrong,
and Robert P. National Erectors Jr., Inc.
Armstrong, Jr., Inc.* Rebar • Pending Bankruptcy
• Defenses to contract Court Ruling
and claims raised by
National Erectors
Weaver Cooke as Rebar
cross-claimant against
above-named
defendants

GROUP D: MOTION FOR CERTIFICATION

Parties
(*filed summary Basis for Summary
judgment motion) Judgment Motion Bankruptcy Court Ruling Motion for Certification

Weaver Cooke • Statute of limitations Doc. No. 923: Granted Motion for Certification or
Construction, LLC v. • Lack of professional because NRS not a proper alternatively, Motion for
National Reinforcing duty of care party Leave to Appeal Order
Systems, Inc.* • Contributory filed by National Erectors
negligence • Pending resolution of Rebar (as an aggrieved
• Indemnity defenses appeals, this party is no party)
• Warrant defenses longer in the case • Bankruptcy Court
Granted Motion for
Certification (Doc. No.
1157)

EXHIBIT B*

*Where portions of this chart are blank, either the party did not respondto the court’s request for this information or a response was not necessary

If non-core,
Consent to consent to
jury trial in Designation of final
Jury Trial bankruptcy Claims: Core judgment by
Party Requested? court? or Non-core?** bankruptcy
court?

New Bern Riverfront Requested, but [Core] Yes
Development, LLC consents to bench trial
in bankruptcy court

Weaver Cooke Construction, Request withdrawn Yes
LLC and Travelers Casualty *consents to non-jury
and Surety Co. of America trial before bankruptcy
court

Humphrey Heating & Air Request withdrawn Core
Conditioning, Inc. *consents to non-jury
trial before bankruptcy
court

Hamlin Roofing Co. and Not requested Yes Non-core Yes
Hamlin Roofing Services,
Inc.

Carlos O. Garcia d/b/a Not requested Yes Core Yes
C.N.N.C.

Randolph Stair and Rail Co. Not requested Yes Core

East Carolina Masonry, Inc. Not requested Yes Core Yes

Stock Building Supply, LLC Requested Yes Core

Fluhrer Reed, PA Requested Yes Core

Gouras, Inc. Requested Yes Core Yes

William H. Dail d/b/a DD Requested Yes Core
Company

Curenton Concrete Works, Requested Yes Core
Inc.

Performance Fire Protection, Requested Yes Core
LLC

JDavis Architects, PLLC Requested, No Non-core Yes

Summit Design, Inc., Robert Requested No Non-core No

Armstrong, Jr., and Robert
P. Armstrong Inc.

National Erectors Rebar, Inc. Requested No Non-core No

JMW Concrete Contractors Requested No Non-core No

Johnson’s Modern Electric, Requested “Requests a Non-core No
Inc. jury trial
before the
District
Court”

** Designation made prior to decision in Stern v. Marshall, 131 S. Ct. 2594 (2011) ; therefore may not reflect
the distinction between “statutorily core” and “constitutionally core.”

EXHIBIT C

Other Summary Judgment Orders*

*No Notice of Appeal, Motion for Leave to Appeal, or Motion for Reconsideration filed to date

Parties
(*filed summary judgment Basis for Summary Bankruptcy Court Present Status of
motion) Judgment Motion Ruling Action

Weaver Cooke Construction, • Statute of limitations 1. Doc. No. 902: Denied Weaver Cooke’s
LLC v. Gouras, Inc.* • Economic loss rule as to statute of negligence and breach
(Negligence) limitations defense to of express warranty
• Indemnity defenses negligence and warranty claims remain pending
claims against Gouras (Weaver

2. Doc. No. 932: Denied Cooke has appealed an
as to economic loss rule order granting Gouras
defense summary judgment on
the indemnity claim)

Weaver Cooke Construction, • Statute of limitations 1. Doc. No. 933: • Hamlin Roofing
LLC v. Hamlin Roofing • Economic loss rule Granted on all claims as Services is out of the
Company, Inc.* and Hamlin (Negligence) to Hamlin Roofing case
Roofing Services, Inc.* • Contributory Services, Inc.; Denied • Weaver Cooke’s
negligence as to statute of negligence and breach
• Indemnity defenses limitations defense of warranty claims
raised by Hamlin remain pending
Roofing Company, Inc. against Hamlin
• Hamlin Roofing Roofing Company
Services is therefore (Weaver Cooke has
no longer in the case appealed an order

2. Doc. No. 939: granting Hamlin
Denying as to economic Roofing Company
loss rule defense raised summary judgment on
by Hamlin Roofing the indemnity claim)
Company, Inc.

3. Doc. No. 960:
Denying as to
contributory negligence
and warranty defenses

New Bern Riverfront • Defenses to claims 1. Doc. No. 948: Denied • New Bern Riverfront
Development, LLC v. for liquidated as to liquidated damages Development’s claim
Weaver Cooke Construction, damages against Weaver Cooke
LLC* and Travelers • Defenses to claims 2. Doc. No. 949: and Travelers for
Casualty and Surety for consequential Granted as to liquidated damages
Company of America* damages consequential damages remains pending
• Defenses to fourth with regard to Weaver
claim for relief Cooke; ruling deferred • New Bern Riverfront
as to Travelers (court Development may not
later granted summary maintain a claim for
judgment in Traveler’s consequential damages
favor on the issue of against Weaver Cooke
consequential damages) or Travelers

3. Doc. 959: Granted in • New Bern Riverfront
Weaver Cooke and Development may not
Travelers’ favor as to maintain its fourth
New Bern’s fourth claim for relief against
claim for relief Weaver Cooke or
Travelers (unfair and
deceptive trade
practices

New Bern Riverfront • Defenses to Doc. No. 964: Denied New Bern Riverfront
Development, LLC v. timeliness of as to Traveler’s contract Development’s claims
Travelers Casualty and complaint based on defenses against Travelers
Surety Company of alleged contractual remain pending
America* time limitation in the
performance bond

New Bern Riverfront • Breach of contract Doc. No. 971: Summary New Bern Riverfront
Development, LLC* v. judgment denied as to Development’s contract
Weaver Cooke Construction, claim against Weaver claims against Weaver
LLC Cooke for breach of Cooke remain pending
contract

Stock Building Supply, LLC • Defenses to claims of Doc. No. 952: Granted This party is no longer
v. Carlos O. Garcia, d/b/a defects as to all of Garcia’s in the case
C.N.N.C.* • Indemnity defenses claims
• Negligence defenses

Weaver Cooke Construction, • Statute of limitations Doc. No. 961: Denied Weaver Cooke’s
LLC v. East Carolina • Economic loss rule as to contributory negligence claim (as to
Masonry, Inc.* (Negligence) negligence defense certain defects) and
• Contributory breach of express
negligence warranty claims remain
• Warranty defenses pending against ECM;
• Indemnity defenses (Weaver Cooke has
appealed an order
granting ECM partial
summary judgment on
the negligence claim, as
well as an order
granting ECM summary
judgment on the
indemnity claim, and
ECM has appealed the
denial of summary
judgment on the breach
of warranty claim)

New Bern Riverfront • Crossclaim against Doc. No. 963: Summary National Erectors
Development, LLC v. Weaver Cooke for judgment denied as to Rebar’s crossclaim
Weaver Cooke Construction, breach of contract crossclaim against against Weaver Cooke
LLC and National Erectors Weaver Cooke for breach of contract
Rebar, Inc.* remains pending

Weaver Cooke Construction, • Statute of limitations Doc. No. 903: Granted This party is no longer
LLC v. Stock Building • Economic loss rule as to PLF of Sanford in the case
Supply, LLC* and PLF of (Negligence) and dismissing PLF of
Sanford, Inc. f/d/b/a Lee • Indemnity defenses Sanford from adversary
Window & Door Company* proceeding

Gouras, Inc. v. 5 Boys, Inc.* • Lack of participation Doc. No. 912: Granted This party is no longer
in project as to all claims in the case
• Economic loss rule
(negligence)

Weaver Cooke Construction, • Insufficient evidence Doc. No. 913: Granted This party is no longer
LLC v. United Forming, to support claims as to all claims in the case
Inc.* • Economic loss rule
(negligence)

J. Davis Architects, PLLC v. • Insufficient evidence Doc. No. 929: Granted This party is no longer
McKim & Creed, P.A.* to support claims as to all claims in the case

[1] Failure to reach consensus on the jury trial is dispositive of the issue of the situs of the trial. However, it is noteworthy that the parties had also failed to agree on whether, if the trial had remained in the bankruptcy court, the bankruptcy court could enter final orders. See 28 U.S.C. § 157(e).

[2] Weaver Cooke filed a motion for leave to appeal one order (Docket #969) for which it did not also, in the alternative, file a notice of appeal. National Erectors Rebar did not file a motion for leave to appeal one order (Docket #923) for which it filed a notice of appeal. Otherwise, for every order they sought to appeal, the three appealing parties filed both a notice of appeal and a motion for leave to appeal. There also are notices of appeal and/or motions for leave to appeal filed for some of the motions for reconsideration (Ex. A, Group C). Those notices of appeal and/or motions for leave to appeal are not separately discussed in this order, because they are virtually identical in substance and intent to those in Ex. A, Groups A and B.

[3] In the conclusion to this order, and in connection with its recommendation of certification, the court also will respectfully request that the district court revisit Weaver Cooke’s motions for leave to appeal under § 158(a)(3) that it already has denied, and reconsider them as motions to appeal final orders encompassed by the Rule 54(b) certification made by this court.

[4] This court has reviewed but not yet ruled on two of the motions for reconsideration listed in Group C. If those motions ultimately are denied, the court will certify its orders as final under Rule 54(b).

[5] During the construction of the SkySail project, Weaver Cooke entered into a purchase order contract related to the design of the post-tension concrete system with National Reinforcing Systems, Inc. (“NRS”). Weaver Cooke entered into a separate contract with National Erectors Rebar, Inc. (“National Erectors”) for the installation of the post-tension system. Unbeknownst to Weaver Cooke, NRS had merged into National Erectors three months prior to entering into the design contract. The Articles of Merger filed with the North Carolina Secretary of State designated National Erectors as the surviving entity.

Under N.C.G.S. § 55-11-06(a)(1), upon merger, the merging corporation (i.e., NRS) merges into the surviving corporation and its separate existence ceases. Further, N.C.G.S. § 55-11-06(a)(3) provides that the surviving corporation has all of the liabilities of the merging corporation. The court held that if and to the extent NRS was liable to Weaver Cooke, that liability belonged to National Erectors, against which Weaver Cooke had separately lodged a number of claims. Concluding that NRS was not a proper party to the action, the court dismissed Weaver Cooke’s third-party complaint against NRS. National Erectors, as an aggrieved party, sought reconsideration of this order (which the court denied, Docket # 1143) and also sought certification of the order as final, which the court allowed (Docket #1157).

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