by Jeff Trexler

You might hear today that the district court judge has handed Toberoff another stunning defeat this week, “a doozy and an outright win for DC.

It’s actually a win for Toberoff, at least procedurally.

Here’s what happened.

As was widely reported on The Beat and elsewhere, back on October 17, 2012, Judge Wright granted DC partial summary judgment in its action against Toberoff’s Pacific Pictures. In particular, he ruled that the Shuster estate’s termination was invalid, along with subsequent agreements giving Pacific Pictures a substantial percentage of the Superman rights.

That was a momentous ruling–and, as I discussed, not at all unexpected. Toberoff tried to get the judge to vacate it, but to no avail–unlike 2008, this time he didn’t luck out and get a sympathetic new judge.

One would expect that Toberoff’s next step would be to appeal the ruling to the Ninth Circuit Court of Appeals. However, there’s a slight hitch in the rules of civil procedure. Because the October order was a partial summary judgment–the court ruled on some but not all of the claims at issue–there was no final judgment in the case for Toberoff to appeal.

Accordingly, in November Toberoff asked the judge to issue a final judgment certifying his October order. This way, as Toberoff correctly noted, he could appeal the October rulings in an expeditious fashion.

This is called a Rule 54(b) motion, for the section of the Federal Rules of Civil Procedure that allows a court to “direct entry of a final judgment as to one or more, but fewer than all, claims … if the court expressly determines that there is not just reason for delay.”

On December 11 the judge granted Toberoff’s request and certified the previous partial summary judgment order as final in accordance with Rule 54(b). Shortly thereafter on that same day, December 11, Toberoff filed his appeal with the Ninth Circuit.

For an indication of just how expected this was, note the date on Toberoff’s 12/11 filing–it was prepared on December 10.

On a side note, the judge didn’t grant Toberoff’s request for a stay of proceedings in regard to the other remaining issues–read the order carefully & you’ll find that the judge, in an interesting display of informality, issued his judgment by signing the alternative draft order prepared by DC’s outside counsel, which left out the grant of a stay.

Of course, more generally the ongoing Siegel and Shuster cases do continue to offer some interesting inside-baseball material for discussion, and if I can break away from other matters before another ruling comes down I’ll offer a few thoughts here at The Beat.

Rule 54(b) Motion and Judgment in the Pacific Pictures – Joe Shuster – Marc Toberoff District Court Case


  1. @Torsten – DC describes the Does as fictitiously-named defendants who in some manner were also responsible for bringing about the acts described in the Pacific Pictures complaint. Real names of individuals, corporations or entities are to be supplied as DC learns more about the transactions throughout the litigation.

    Including Does in a complaint is not uncommon.

    @Henry Glad it was helpful!

  2. I hope this is the end of the superman court battle for fans and dc doesn’t take the character for granted

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