Appeal from orders of the United States District Court for the Western District of New York, Harold P. Burke, Judge, dismissing complaint for damages resulting from separation and concealment of the three infant plaintiffs from their father. Affirmed.
Before Friendly, Mansfield and Kearse, Circuit Judges.
Thomas Leonhard ("Leonhard"), suing in his own behalf and as legal guardian of his three children Michael, Stephan, and Karen Leonhard, appeal from the summary dismissal of their action, commenced in 1978 in the United States District Court for the Western District of New York, seeking money damages for the violation of his and his children's constitutional rights and for torts committed against the children resulting from the separation and concealment of the children from Leonhard in 1967. Named as defendants were the United States and various federal agencies and officials (the "federal defendants"), certain New York State agencies and officials (the "state defendants"), the City of Buffalo and Samuel Giambrone, a former Buffalo police officer (the "city defendants"), and one Pascal Calabrese. The three groups of defendants moved to dismiss on various grounds including collateral estoppel, statute of limitations, governmental immunity, and failure to state a claim upon which relief can be granted.
After hearing argument, the district court, Harold P. Burke, Judge, entered orders dismissing the complaint against all of the defendants, except Calabrese who had not been served with process. Plaintiffs appeal from those orders. The federal defendants argue that the appeal should be dismissed for lack of jurisdiction because the claims against Calabrese were never dismissed and because no judgment was actually entered in favor of Giambrone.
For the reasons set forth below, we hold that we have jurisdiction and that all claims were properly dismissed.
I. THE FACTUAL BACKGROUND
In 1966, Leonhard and his wife Rochelle were divorced. The decree, entered by the State Supreme Court for Erie County, New York, awarded custody of their three children to Rochelle; Leonhard was given visitation rights.*fn1 Early in 1967, Rochelle married defendant Calabrese and she and the children lived with him in Buffalo. Shortly thereafter, however, Calabrese began serving a five-year term of imprisonment in a New York state prison. In early 1967, members of the Buffalo Strike Force for Organized Crime, a part of the United States Department of Justice, learned from defendant Giambrone, a detective in the Buffalo Police Department, that Calabrese might have useful information on organized crime. It developed that Calabrese was willing to testify against certain members of organized crime, but only if the Strike Force agreed to protect him, Rochelle and the children, and to relocate them with new identities. The Strike Force officials agreed to this and later in 1967 arranged Calabrese's transfer to a federal prison and moved Rochelle and the children to a military reservation. Leonhard was not consulted.
In the fall of 1967 Calabrese testified as a government witness in a successful prosecution of organized crime members. As a result of this cooperation, the New York State Parole Board granted him parole in February 1968. Defendant Kennelly, a Justice Department attorney working with the Buffalo Strike Force, arranged for Calabrese, Rochelle, and the children to be moved to a new and secret residence. Under Kennelly's direction, the government provided new identities and supporting credentials for the entire family and secured employment for Calabrese. The family later relocated again on its own initiative; at that point only Kennelly knew their identities and location.
The effect of all of this was that Leonhard was left without any knowledge of his children's whereabouts. He first tried to locate his children in August 1967. In mid-1969 Leonhard's attorney contacted Kennelly to attempt to locate the children. Kennelly refused to reveal the whereabouts of Rochelle and the children, but agreed to forward correspondence between Rochelle and Leonhard. Rochelle refused to permit Leonhard to see the children even at a neutral location, for fear they would reveal their new identities. Leonhard finally commenced an action in New York Supreme Court to modify the divorce decree and award him custody. He attempted to serve process on Rochelle via Kennelly, but Kennelly, who was not Rochelle's attorney, refused to accept service or to forward the papers. When Rochelle learned of the suit, from sources undisclosed, she warned Kennelly that if he in any way revealed her whereabouts she and the children would disappear without informing even Kennelly of their new identities and location. In June 1971, by default, the New York court granted Leonhard custody of the three children.
A. The Prior Action ("Leonhard I")
In July 1971, Leonhard commenced an action in the United States District Court for the Western District of New York against Kennelly, John Mitchell (then Attorney General), and other officials of the Department of Justice. Alleging that the defendants had secreted his three children and given them new identities, and that he now had custody, Leonhard sought relief in the nature of mandamus, pursuant to 28 U.S.C. § 1361 (1970), to compel the defendants to disclose the whereabouts and new identities of the children. No damages were sought, and Leonhard sued only on his own behalf; his children were not parties to the action.
The district court denied mandamus and the judgment was affirmed in Leonhard v. Mitchell ("Leonhard I"), 473 F.2d 709 (2d Cir.), cert. denied, 412 U.S. 949, 93 S. Ct. 3011, 37 L. Ed. 2d 1002 (1973). This Court held that Leonhard had no "clear constitutional right to custody or visitation rights," 473 F.2d at 713, and that Kennelly's refusal to disclose the whereabouts of the children was a rational exercise of his discretion, making mandamus inappropriate:
Kennelly arranged to secrete Rochelle and the children at the specific request of Pascal Calabrese. At that time-February, 1968-Rochelle had legal custody of the children and believed that their safety from threatened violence required that they no longer be visited by their natural father. Information received by Strike Force officials concerning a "murder contract" placed on the heads of the Calabreses confirmed their initial fears. Kennelly's present refusal to disclose the location of Calabrese family is grounded in his sense of obligation to them, both because of his agreement never to disclose their location and of his continued belief that the lives of the children and Rochelle and Pascal would be endangered if this information should become known. In view of the circumstances, we could hardly dismiss this latter fear as groundless or irrational.
Id. at 713-14 (footnote omitted). The Court concluded as follows:
In sum, the extraordinary factual posture of this case indicates that Kennelly, rather than having abused a discretionary power which he held, acted in good faith in attempting to balance two competing interests: Thomas Leonhard's natural wish to be reunited with his children, and Rochelle Calabrese's equally natural desire to protect the children from serious harm or even death.
Id. at 714 (footnote omitted).
On July 4, 1975, according to plaintiffs' counsel, Rochelle "decided that she had done a grave injustice to her children and to Thomas Leonhard and decided to put the children in contact with their father."*fn2 On July 11, 1975, Leonhard was reunited with his children. On June 30, 1978, Leonhard filed the present action, asserting twelve separately stated claims, three on his own behalf and nine on behalf of one or all of the children; on these claims each named plaintiff seeks damages ranging from $10,000 to $500,000.*fn3
The complaint alleges that by separating and concealing the children from Leonhard from 1967 to 1975 and refusing Leonhard's repeated requests to be informed of their whereabouts, Kennelly and other agents of the Organized Crime Strike Force deprived the plaintiffs of their constitutional rights; Kennelly and the agents are said to have had "actual or constructive knowledge" that their acts violated plaintiffs' constitutional rights.*fn4 The complaint alleges that defendant Giambrone participated in the removal and concealment, that he "knew or should have known" that his conduct was in violation of the plaintiffs' constitutional rights, and that he acted "intentionally and under and by the full authority" of the City of Buffalo. These claims are asserted under 42 U.S.C. § 1983 (1976) and the First, Fourth, Fifth, Ninth and Fourteenth Amendments to the Constitution.
In addition to these constitutional claims, asserted on behalf of both Leonhard and the children, the complaint asserts several non-constitutional claims on behalf of the children alone. It alleges that Calabrese committed torts against the children, and alleges that the United States, by arranging Calabrese's release and furnishing support and new identities for him, Rochelle and the children, undertook a duty, which it breached, to protect the children from mental and physical harm.*fn5
In addition to the above defendants, several New York state agencies and officials were made defendants: the New York State Department of Correctional Services and Benjamin Ward, a former Commissioner of that Department, together with all of his predecessors in office; and the New York State Board of Parole and Eugene Hammock as an agent of that Board, together with all of his predecessors in office. None of the complaint's twelve separately stated claims is asserted against the state defendants. These defendants are simply listed in the section of the complaint denominated "Parties," and are alleged to have acted in concert with the federal defendants in releasing Calabrese from a correctional facility in the State of New York in contravention of state law.
C. The Decisions Below and the Appeals to This Court
All defendants, except Calabrese (who was never served and made no appearance) and Giambrone, moved to dismiss the complaint on the grounds, inter alia, that it failed to state a claim and that all claims asserted were barred by the applicable statutes of limitations. In addition, the federal defendants asserted that the decision in Leonhard I barred the plaintiffs from litigating the issues raised in the present complaint under principles of res judicata and collateral estoppel; the state defendants asserted that the state agencies and officials were immune from suit under the Eleventh Amendment; and the City of Buffalo asserted that it was immune from suit under the doctrines of Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), and Monell v. Department of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). In opposition to the motions to dismiss, following a modicum of discovery of the state defendants, plaintiffs filed a detailed memorandum, several exhibits and two affidavits. The exhibits included copies of administrative claim forms that had been filed by Leonhard and each of the children with the government on June 27, 1977, claiming physical, mental and emotional injury as a result of the removal and concealment of the children. One of the affidavits submitted by plaintiffs was a copy of the affidavit that Kennelly had submitted in Leonhard I ;*fn6 the other was an affidavit apparently executed by Rochelle for the purposes of the present action.*fn7
Eventually, the claims against all defendants except Calabrese were dismissed. The procession of dismissals and appeals, however, was somewhat unorthodox. On September 21, 1979, Judge Burke ordered the complaint against the federal defendants dismissed on grounds of res judicata, collateral estoppel, statute of limitations, and failure to file timely administrative claims, and ordered the complaint against the City of Buffalo dismissed on the authority of Monroe v. Pape, supra. Despite the absence of a certification pursuant to Fed.R.Civ.P. 54(b), judgment for the federal defendants and the City of Buffalo was entered on September 24.*fn8 Neither the September 21 order nor the September 24 judgment dealt with the state defendants, Giambrone or Calabrese. On October 17, plaintiffs filed notice of appeal from the September 21 order, and the appeal was docketed in this Court on October 22. On October 25, notwithstanding plaintiffs' October 17 attempt to appeal to this Court, Judge Burke entered a second order, this time dismissing the state defendants on grounds of failure to state a claim under § 1983, immunity under the Eleventh Amendment, and expiration of the statute of limitations. On October 30, plaintiffs filed an amended notice of appeal, seeking review of both of Judge Burke's orders (dated September 21 and October 25). Judgment in favor of the state defendants was entered in the district court on October 30, after plaintiffs' notice of appeal had been filed. Plaintiffs' amended appeal was added to this Court's docket on November 5, at which time there still had been no adjudication of the claims against Giambrone and Calabrese. On November 19, however, Judge Burke sent a letter to the Clerk of the district court, authorizing him to correct a "typographical error" in the September 21 order, by adding Giambrone to the defendants dismissed. The Clerk received this letter on November 20, but since the district court record had already been sent to this Court, no change was actually made on the order itself. No judgment was entered in favor of Giambrone nor did plaintiffs file any additional notice of appeal. Judge Burke's letter of November 19 was eventually entered on the district court docket on February 4, 1980, subsequent to argument of the appeal in this Court; on February 5, the letter was transmitted to this Court as a supplement to the original record. Finally, on February 15, 1980, Judge Burke ordered that his previous decisions of dismissal "be certified and considered as a final appealable Order."
II. APPELLATE JURISDICTION
The federal defendants point out that neither of the judgments appealed from adjudicated the claims against Calabrese and Giambrone. They argue that since the judgments adjudicated the rights of fewer than all the parties and contained no certification pursuant to Fed.R.Civ.P. 54(b), they are not final, and therefore not appealable under 28 U.S.C. § 1291 (1976). For the reasons below we disagree.
We begin with the effect of the non-dismissal as to Calabrese, who was not served with process and did not appear. It is clear, under Rule 54(b), that when there are two or more defendants who have been served and the district court dismisses the action as to fewer than all of them, a final judgment may not be entered reflecting that dismissal unless the court so instructs and makes an "express determination" that there is no just reason to delay entry of the judgment. E. g., New York v. Nuclear Regulatory Comm'n, 550 F.2d 745, 761 (2d Cir. 1977); Independent Investor Protective League v. Touche Ross & Co., 542 F.2d 156, 157 (2d Cir. 1976); Robert Stigwood Group Ltd. v. Hurwitz, 462 F.2d 910, 913 (2d Cir. 1972). In such a situation the early dismissal remains subject to revision until the liabilities of all defendants have been adjudicated; thus an immediate appeal should not be available. When, however, the action is dismissed as to all defendants who have been served and only unserved defendants "remain," the circumstances are materially different. Now there is no reason for Rule 54(b) to preclude the immediate and automatic entry of a final judgment since there is no basis for believing there will be any further adjudications in the action, or, therefore, for holding the dismissals subject to revision.*fn9 Thus, at least two circuits have held that a defendant who has not been served is not a party for purposes of Rule 54(b). See United States v. Studivant, 529 F.2d 673, 674 n. 2 (3d Cir. 1976); Siegmund v. General Commodities Corp., 175 F.2d 952, 953 (9th Cir. 1949).
This reading of Rule 54(b) is consistent with the practice which prevailed prior to the adoption of the Rule in its present form (prior to 1963 the Rule dealt with multiple claims but was silent as to multiple parties) and indeed prior to the adoption of the original Federal Rules in 1938. In Ferguson v. Bartels Brewing Co., 284 F.2d 855, 857 (2d Cir. 1960), this Court dismissed an appeal because the order appealed from had not dealt with one of the defendants who had been served, but recognized the distinction in question here:
(O)ne of the individuals named as codefendant . . . has apparently not been served. Thus he is not a party to the case, and his designation as a codefendant would not bar entry of a final judgment against the other defendants who have been actually made parties.*fn10
Compare Hohorst v. Hamburg-American Packet Co., 148 U.S. 262, 13 S. Ct. 590, 37 L. Ed. 443 (1893) (the absence of a dismissal as to some served defendants prevented entry of a final, appealable order of dismissal as to one defendant), with Hooven, Owens & Rentschler Co. v. John Featherstone's Sons, 111 F. 81, 84-85 (8th Cir. 1901), and Bradshaw v. Miners' Bank, 81 F. 902, 904 (7th Cir. 1897) ("The right of appeal from the decree in favor of the Miners' Bank is not affected by the fact that there has been no decree against the Illinois & Missouri Lead & Zinc ...