)    Case No.: 5-CV-0265 JHP SAJ

FOR THE NORTHERN DISTRICT OF OKLAHOMA   )

IN THE UNITED STATES DISTRICT COURT             )

UNITED STATES OF AMERICA, ex rel.                      )

CLAYTON FENT,                                                           )

)

Plaintiff,                                   )

)

vs.                                                                             )

)

L-3 COMMUNICATIONS AERO TECH                       )

LLC, et al.,                                                                     )

)

Defendant                               )

)

MOTION FOR PARTIAL FINAL JUDGMENT OF DEFENDANT RAYTHEON COMPANY AND BRIEF IN SUPPORT

Pursuant to Fed. R. Civ. P. 54(b), Defendant Raytheon Company (“Raytheon”) hereby respectfully moves the Court to enter partial final judgment in its favor on all claims asserted against it in this matter. As discussed more fully below, the entry of partial final judgment is proper because the order to be certified is a final order, and there is no just reason to delay review of the final order.

As grounds for this Motion, Raytheon states as follows:

• By Opinion and Order dated November 8, 2007, the Court granted Raytheon’s Motion to Dismiss, thereby dismissing all claims asserted against Raytheon in this action.


• In the Opinion and Order, the Court allowed the plaintiff, Clayton Fent (“Fent”) to amend his complaint to attempt to state a claim against Raytheon. Thereafter, the Court granted Fent’s request that he be provided additional time to amend, through and including December 21, 2007. Fent did not, however, file an amended complaint. Accordingly, the Opinion and Order granting Raytheon’s Motion to Dismiss is a final order dismissing Raytheon from this matter.


• Fed. R. Civ. P. 54(b) provides, in relevant part, that: When more than one claim for relief is presented in an action . . . or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.


• The purpose of Fed. R. Civ. P. 54(b) is “to avoid the possible injustice of a delay in entering judgment on a distinctly separate claim or as to fewer than all of the parties until the final adjudication of the entire case by making an immediate appeal available.” Oklahoma Turnpike Authority v. Bruner, 259 F.3d 1236, 1241 (10th Cir. 2001).


• Rule 54(b) certification requires that the Court make two express determinations:
  
  
  • that the order to be certified is a final order, and
  • that there is no just reason to delay review of the final order. Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7 (1980); McKissick v. Gemstar-TV Guide International, Inc., 2007 U.S. Dist. LEXIS 61945, at *10 (N.D. Okla. 2007).


• This Opinion and Order granting Raytheon’s Motion to Dismiss constitutes a final order because “it is an ultimate disposition of an individual claim entered in the course of a multiple claims action.” Oklahoma Turnpike Authority, 259 F.3d at 1242. All of the claims asserted against Raytheon are disposed of in the Opinion and Order, and the remaining claim against L-3 Communications AeroTech LLC does not involve any facts related to Raytheon. Accordingly, the first requirement for certification – that there be a final order – is met.


• A certification under Rule 54(b) should be granted where “there is no just reason to delay review of the final order until it has conclusively ruled on all claims presented by the parties to the action.” Oklahoma Turnpike Authority, 259 F.3d at 1242. In this case, there is no just reason for delay in entering final judgment in favor of Raytheon. As noted, all claims against Raytheon have been conclusively adjudicated by the Court. Moreover, as discovery will occur in this action, until partial final judgment is entered Raytheon is subject to the duties andobligations of parties, rather than non-parties. In addition, the expense and distraction that Raytheon will experience in a matter that concerns a subsidiary of its business that was sold as early as 2001, more than six years ago, warrants granting this Motion for Partial Final Judgment.

WHEREFORE, for the reasons set forth herein, pursuant to Fed. R. Civ. P. 54(b), defendant Raytheon Company moves that the Court enter partial final judgment in its favor on all claims asserted against it in this matter. A form of proposed Order is submitted herewith.

Respectfully submitted,
s/ M. Richard Mullins
M. Richard Mullins, OBA #13329
Attorney for Defendant Raytheon Company

MCAFEE & TAFT A PROFESSIONAL CORPORATION
Tenth Floor, Two Leadership Square
211 North Robinson Avenue
Oklahoma City, Oklahoma 73102
Telephone: (405) 552-2263
Facsimile: (405) 228-7463
richard.mullins@mcafeetaft.com

Ivonne Mena King (admitted pro hac vice)
Foley & Lardner LLP
1530 Page Mill Road
Palo Alto, CA 94304
Telephone: (650) 251-1158
Facsimile: (650) 856-3710
iking@foley.com

Lawrence M. Kraus (admitted pro hac vice)
Claire Bishop Abely (admitted pro hac vice)
Foley & Lardner LLP
111 Huntington Avenue
Boston, MA 02199
Telephone: (617) 342-4000
Facsimile: (617) 342-4001
lkraus@foley.com
cabely@foley.com

CERTIFICATE OF SERVICE

I hereby certify that on this 24th day of January, 2008, I electronically transmitted the attached document to the Clerk of the Court using the ECF system for filing and transmittal of a Notice of Electronic Filing to the following ECF registrants:

S. Douglas Mackay, Esq.
KUTAK ROCK LLP
8301 East 21st Street, Suite 370
Wichita, KS 67206-2935
W. Jay DeVecchio, Esq.
Darren H. Lubetzky, Esq.
Melissa A. Meister, Esq.

JENNER & BLOCK
601 13th St NW
Washington, DC 20005
D. Richard Funk, Esq.
CONNER & WINTERS, P.C.
4000 One Williams Center
Tulsa, OK 74172-0148

Phil E. Pinnell
United States Attorney’s Office (Tulsa)
110 W 7th St., Ste 300
Tulsa, OK 74119-1013
s/M. Richard Mullins
M. Richard Mullins