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Cullen v. Margiotta

UNITED STATES COURT OF APPEALS, SECOND CIRCUIT


decided: March 25, 1980.

LORRAINE C. CULLEN, ET AL., PLAINTIFFS-APPELLANTS,
v.
JOSEPH P. MARGIOTTA, JR., ET AL., DEFENDANTS-APPELLEES .

Appeal from order of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissing four of plaintiffs' six causes of action. Appeal dismissed for lack of jurisdiction.

Before Kaufman, Chief Judge, Smith*fn* and Timbers, Circuit Judges.

Author: Per Curiam

This is an appeal from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissing four of plaintiffs' six causes of action. We hold that certification of the order as a final judgment under Fed.R.Civ.P. 54(b) was improper and dismiss the appeal for lack of jurisdiction.

This appeal arises from a class action brought by employees of Nassau County and its municipalities against the county, the Town of Hempstead, the Republican Committees of Nassau County and Hempstead, and various government and Republican Party officials of the county and the town. Plaintiffs contend that since 1971, defendants have routinely extorted political contributions to the Republican Party as a condition of employment or promotion in civil service jobs.

Plaintiffs assert causes of action under the first and fourteenth amendments to the Constitution; the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3); the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq.; and N.Y.Civil Service Law § 107. They seek $8.65 million in alleged damages*fn1 as well as declaratory and injunctive relief.

Judge Mishler dismissed all of plaintiffs' causes of action except those based on 42 U.S.C. §§ 1983 and 1985(3). The judge ruled that Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979) (en banc ), precluded a direct cause of action under the first amendment when relief was available under 42 U.S.C. § 1983. He dismissed the RICO claim on the ground that plaintiffs had failed to allege a sufficient connection between the challenged activities and interstate commerce.*fn2 Finally, he declined to exercise pendent jurisdiction over the claim based on N.Y.Civil Service Law § 107 because he deemed it "both unwise and unnecessary to decide the novel issue" of the availability of a private right of action under the state statute. Cullen v. Margiotta, No. 76-C-2247, slip op. at 34 (E.D.N.Y. April 30, 1979). The judge certified the order of dismissal as a final judgment under Fed.R.Civ.P. 54(b).

On appeal, plaintiffs raise a number of intriguing and important legal questions. We conclude, however, that we are without jurisdiction to consider these questions because the district court's decision to grant Rule 54(b) certification was an abuse of discretion. Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S. Ct. 895, 900, 100 L. Ed. 1297 (1956); Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir. 1978); Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir. 1976).

Rule 54(b) empowers district courts to enter final judgment on some but not all of the claims in a multiple claim action "only upon an express determination that there is no just reason for delay." Here the decision to enter final judgment was accompanied only by the conclusory assertion that there was "no just reason for delay." Cullen, supra, slip op. at 46. We have strongly urged that in making the "express determination" required under Rule 54(b), district courts should not merely repeat the formulaic language of the rule, but rather should offer a brief, reasoned explanation. Arlinghaus, supra, 543 F.2d at 464; Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974); Schwartz v. Compagnie General Transatlantique, 405 F.2d 270, 275 (2d Cir. 1968); see also Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 364 (3d Cir. 1975).

Our concern that district courts justify 54(b) certification with more than conclusory language stems from a general policy disfavoring piecemeal appeals. We have repeatedly endorsed the Third Circuit's declaration that "54(b) orders should not be entered routinely or as a courtesy or accommodation to counsel. The power which this Rule confers upon the trial judge should be used only "in the infrequent harsh case' . . . ." Panichella v. Pennsylvania R. R., 252 F.2d 452, 455 (3d Cir. 1958), quoted in Brunswick Corp., supra, 582 F.2d at 183; Arlinghaus, supra, 543 F.2d at 463-64; Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 942 (2d Cir. 1968); and Luckenbach Steamship Co. v. H. Muehlstein & Co., 280 F.2d 755, 758 (2d Cir. 1960). Certification should be granted only if there exists "some danger of hardship or injustice through delay which would be alleviated by immediate appeal." Brunswick Corp., supra, 582 F.2d 183, quoting Campbell, supra, 403 F.2d at 942.

We find nothing in the present case that warrants certification of the challenged order for immediate appeal. Postponement of appeal until the remaining claims have been adjudicated presents no danger of prejudice, hardship or injustice to any party. Judicial economy will best be served by delaying appeal until all issues can be confronted by this court in a unified package. Such a course is particularly desirable where, as here, the adjudicated and pending claims are closely related and stem from essentially the same factual allegations. Further proceedings on the pending causes of action will illuminate appellate review of the other claims. Indeed, several questions involved in this appeal may turn on, or be rendered moot by, the district court's resolution of issues still pending before it.*fn3 See generally Brunswick Corp., supra, 582 F.2d at 183-85; Arlinghaus, supra, 543 F.2d at 464; Western Geophysical Co. of America, Inc. v. Bolt Associates, Inc., 463 F.2d 101, 102 (2d Cir.), cert. denied, 409 U.S. 1040, 93 S. Ct. 523, 34 L. Ed. 2d 489 (1972); Vazquez v. Ferre, 410 F. Supp. 1385, 1387 (D.N.J.1976).

Appeal dismissed.


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