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Cullen v. Margiotta

filed: February 2, 1987.

LORRAINE C. CULLEN, JOHN L. JUND, AND MICHAEL LANDI, ON BEHALF OF EACH, AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, NAMELY, THOSE EMPLOYEES OF THE COUNTY OF NASSAU, THE TOWNS OF HEMPSTEAD, NORTH HEMPSTEAD AND OYSTER BAY, AND THE VILLAGE OF HEMPSTEAD, WHO HAVE BEEN SUBJECTED TO SOLICITATIONS FOR CAMPAIGN CONTRIBUTIONS TO THE REPUBLICAN PARTY IN AN INHERENTLY COERCIVE MANNER OR WHO HAVE BEEN SUBJECTED TO SCRUTINY BY OFFICIALS OF THE REPUBLICAN PARTY IN AN INHERENTLY COERCIVE MANNER OR WHO HAVE BEEN SUBJECTED TO SCRUTINY BY OFFICIALS OF THE REPUBLICAN PARTY IN AN INHERENTLY COERCIVE MANNER OR WHO HAVE BEEN SUBJECTED TO SCRUTINY BY OFFICIALS OF THE REPUBLICAN PARTY IN CONNECTION WITH THEIR HIRING, EMPLOYMENT OR PROMOTION, AND CIVIL SERVICE MERIT COUNCIL OF LONG ISLAND, PLAINTIFFS-APPELLANTS-CROSS-APPELLEES,
v.
JOSEPH P. MARGIOTTA, JR., ET AL., DEFENDANTS, THE NASSAU COUNTY OF REPUBLICAN COMMITTEE, THE TOWN OF HEMPSTEAD REPUBLICAN COMMITTEE, THE COUNTY OF NASSAU, AND THE TOWN OF HEMPSTEAD, DEFENDANTS-APPELLEES, THE NASSAU COUNTY REPUBLICAN COMMITTEE, THE TOWN OF HEMPSTEAD REPUBLICAN COMMITTEE, AND THE TOWN OF HEMPSTEAD, DEFENDANTS-APPELLEES-CROSS-APPELLANTS



Appeals and cross-appeals (1) from a judgment of the United States District Court for the Eastern District Court of New York entered after a jury trial on liability issues before Jacob Mishler, Judge, dismissing certain of plaintiffs' claims, and (2) from various interlocutory orders.

Author: Kearse

Before: MESKILL, KEARSE, and PIERCE, Circuit Judges.

KEARSE, Circuit Judge:

Plaintiffs-appellants-cross-appellees appeal from a December 27, 1985 judgment, as amended ("1985 Judgment"), entered in the United States District Court for the Eastern District of New York pursuant to Fed. R. Civ. P. 54(b) after a jury trial on liability issues before Jacob Mishler, Judge, dismissing certain parts of their complaint, brought principally under 42 U.S.C. § 1983 (1982) and the Racketeering Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1964 (1982), charging defendants The Nassau County Republican Committee ("County Committee"), The Town of Hempstead Republican Committee ("Town Committee"), The County of Nassau ("County"), and The Town of Hempstead ("Town"), with having coercively exacted contributions to the defendant Committees from employees and prospective employees and prospective employees of the County and the Town. Plaintiffs having earlier stipulated to the dismissal of their complaint as to all defendants except those listed above and to the dismissal as to all defendants of certain other claims, the 1985 Judgment principally (1) dismissed all claims against the County for failure of proof at trial, (2) dismissed plaintiffs' RICO claims against the other three defendants for failure of proof at trial, and (3) summarily dismissed all claims of Landi as time-barred. Claims of the plaintiff class under § 1983 against the Town, the Town Committee, and the County Committee remain pending in the district court.

On appeal, plaintiffs contend principally that the district court (1) fashioned procedures for the remedial phase of their surviving § 1983 claims that imposed undue burdens of proof on the class members and failed to assure them anonymity in the presentation of their individual evidence, and (2) erred in (a) dismissing their RICO claims, (b) restricting the temporal scope of their claims on the ground that neither the pendency of earlier litigation nor duress by defendants tolled the applicable statute of limitations, (c) refusing to grant a new trial against the County, and (d) refusing to enter judgment in their favor notwithstanding the verdict ("n.o.v.") with respect to their claim of extortionate acts of a Town Commissioner from 1978 to 1984. The County Committee, the Town Committee, and the Town have cross-appealed, contending principally that (1) all of plaintiffs' claims are barred by res judicata, (2) plaintiffs' claims under 42 U.S.C. § 1983 should have been dismissed after trial for failure of proof, and (3) the action is not properly maintainable as a class action. The Town also attacks the court's interim award of attorney's fees to the plaintiff class.

For the reasons below, we conclude that we lack jurisdiction to entertain defendants' cross-appeals and plaintiffs' challenges to the interlocutory orders entered with respect to the remedial stage of the proceedings below. As to the issues properly before us, we conclude (1) that the dismissal of the complaint against the County should be affirmed with respect to the period covered by the trial but that the County was not entitled to dismissal of plaintiffs' claims in their entirety because the court erred in ruling that the applicable statutes of limitations had not been tolled; (2) that Landi's individual claims were, for various reasons, properly dismissed as against the County or the County Committee; and (3) that the court erred in dismissing the RICO claims on the basis of the answers to special interrogatories posed to the jury. We thus vacate the judgment in part and remand to the district court for further proceedings with respect to the claims that were improperly dismissed.

I. BACKGROUND

A. The Nature of Plaintiffs' Claims

Plaintiffs Lorraine Cullen, John L. Jund, and Michael Landi were employed by the Town or the County prior to December 1976. Suing on behalf of all persons similarly situated, they claim that for some years prior to the filing of their federal complaint, the defendants had engaged in a scheme of demanding, in violation of plaintiffs' rights under federal law, that employees or prospective employees of the Town and the County contribute annually one percent of their salaries to the Nassau County Republican Party in order to obtain promotion or employment. Plaintiffs sought declaratory and injunctive relief, as well as refunds of the sums collected from class members pursuant to the alleged scheme since 1971.

Prior to commencing the present action, Cullen and Jund, purporting to sue on behalf of others "similarly situated," had brought suit challenging this alleged conduct in state court in 1974, naming as defendants, inter alios, Joseph M. Margiotta, individually and as County Leader of the Nassau County Republican Committee, Ralph G. Caso, individually and as County Leader of the Nassau County Republican Committee, Ralph G. Caso, individually and as County Executive of the County of Nassau, and the County of Nassau. Neither the Town nor the Town Committee was named as a defendant, either directly or indirectly. The state suit was dismissed on the grounds that the complaint did not set forth a cause of action under state law and that class action treatment was inappropriate under N.Y. Civ. Prac. Law ("CPLR") § 1005 (repealed and replaced by CPLR § 901 effective Sept. 1, 1975 (McKinney 1976)). Cullen v. Margiotta, 81 Misc. 2d 809, 367 N.Y.S.2d 638 (Sup. Ct. Nassau Co. 1975) ("State Court Judgment"), aff'd mem., 59 A.D.2d 831, 399 N.Y.S.2d 160 (2d Dep't 1977).

On December 14, 1976, plaintiffs commenced the present action pursuant to 42 U.S.C. § 1983, contending principally that defendants' alleged conduct violated their rights under the First Amendment to the Constitution. Their present complaint also alleged that this conduct constituted a "pattern of racketeering activity" within the meaning ofRICO, 18 U.S.C. §§ 1961(1) and (5). Plaintiffs sought, inter alia, single damages on their § 1983 claims and, pursuant to 18 U.S.C. § 1964(c), treble damages on their civil RICO claims.

B. Pertinent Pretrial Rulings

Defendants moved to dismiss the action on various grounds, including failure to state a claim upon which relief can be granted, res judicata or collateral estoppel on account of the State Court Judgment dismissing plaintiffs' earlier action, and the statute of limitations. In a series of orders issued over a span of more than eight years, the district court dismissed so much of the complaint as sought relief directly under the Constitution and under state law, but ruled that the complaint stated claims under § 1983 upon which relief could be granted and it found that these claims were not precluded by the State Court Judgment. It initially dismissed plaintiffs' RICO claims for failure to allege a sufficient connection between the challenged conduct and interstate commerce, but it later reinstated these claims.

The court held that plaintiffs' claims under both RICO and § 1983 were governed by a three-year statute of limitations and that the running of the statute had not been tolled. Accordingly, it ruled that claims that accrued prior to December 14, 1973, were barred. Finding that Landi's individual claims had accrued prior to December 14, 1973, the court summarily dismissed those claims.

The court ordered that the trial be bifurcated between liability and remedy issues. In light of the statute-of-limitations rulings, the liability trial was to focus on defendants' conduct beginning January 1, 1973.

Prior to commencement of the trial on liability, the district court ordered that a final judgment ("1979 Judgment") be entered pursuant to Fed. R. Civ. P. 54(b) on the claims it had dismissed, and it certified other questions for immediate appeal pursuant to 28 U.S.C. § 1292(b). This Court, concluding that the dismissed claims were too closely related to the claims that remained pending, and observing that the district court had not given any reason for its view that judgment should be entered immediately, dismissed the appeal from the 1979 Judgment on the ground that the Rule 54(b) certification had been an abuse of discretion and that the 1979 Judgment was not properly a final judgment under 28 U.S.C. § 1291. Cullen v. Margiotta, 618 F.2d 226 (2d Cir. 1980) (per curiam). In addition, we denied leave to appeal the orders certified pursuant to § 1292(b); and we dismissed still other attempted appeals as improper under either § 1291 or § 1292.

C. The Trial and the Special Verdict

In the summer of 1985, a jury trial was held on the liability issues with respect to the § 1983 and RICO claims against the Town, the County, and the Town and County Committees. Plaintiffs consented to the dismissal of these claims against all other defendants and to the dismissal of their other claims against all defendants. Detailed interrogatories were submitted to the jury with respect to each category of claim tried; a total of 77 questions were posed.

With respect to the § 1983 claims, the jury found, inter alia, that from January 1, 1973, to January 1, 1976, there had been a "practice and procedure" in Nassau County for the coercive solicitation of contributions from public employees to the County Committee and/or the Town Committee of one percent of the employees' salary. It found that the Town, the Town Committee, and the County Committee had participated in this coercive solicitation of contributions, but that the County itself had not; and it found that the practice and procedure had been a custom and policy of the Town but not of the County. The court concluded that plaintiffs had established that the Town, the Town Committee, and the County Committee, but not the County, had violated plaintiffs' First Amendment rights to associate with the political parties of their choice.

Further with respect to the § 1983 claims, the jury found that the practice and procedure had not "continued to the relatively recent past," -- i.e., as apparently interpreted by the court, past January 1, 1976. And although the jury found that from 1978 to 1984, Michael Limongelli, the Town's Commissioner of Public Safety, had induced employees of his department to purchase tickets to Republican Party fund raising events by threatening that their failure to contribute would result in a loss of overtime and other employment benefits, it concluded that Limongelli's practice was not a custom or policy of the Town and was not within the scope of Limongelli's authority.

As to the RICO claims, the jury found, inter alia, that the Town, the Town Committee, and the County Committee were entities that had knowingly and willfully engaged in a pattern of illegal activity and that those three defendants collectively were an enterprise that engaged in or whose activities affected interstate commerce; and it found 13 predicate acts by public officials acting within the scope of their employment in coercively soliciting political contributions. It found, however, that the County was not an entity that had knowingly and willfully engaged in a pattern of illegal activity; and it found no RICO enterprise of which the County was a member. As discussed in greater detail in part V.B. below, the court concluded that plaintiffs had failed to establish any elements of a civil RICO claim against the County and had failed to establish a necessary element of their RICO claims against the other defendants.

With respect to the plaintiffs' individual claims, the jury found, inter alia, that Jund's refusal to make a one percent contribution was the proximate cause of his failure to be promoted.

D. The Posttrial Rulings, the 1985 Judgment, and the Rule 54(b) Certification

Following the conclusion of the trial on the liability issues, the court denied motions by plaintiffs for a new trial of their claims against the County, for judgment n.o.v. against the Town on the basis of Limongelli's extortionate acts, and for judgment in their favor on the RICO claims on the basis that the jury's interrogatory answers compelled the conclusion that the Town, the Town Committee, and the County Committee each knowingly and willfully engaged in a pattern of legal activity in participating in the affairs of the RICO enterprise of which each was a member. The court also denied motions by the County Committee, the Town Committee, and the Town for judgment of dismissal or for a new trial on the § 1983 issues, concluding that these defendants are liable to plaintiffs for damages on the § 1983 claims.

The court directed the entry of the 1985 Judgment as a partial final judgment reflecting its pretrial dismissals of certain claims and its interpretation of the jury's answers to the interrogatories as to the RICO claims and the liability of the County. Insofar as is pertinent to the present appeal, this 1985 Judgment (1) dismissed the complaint in its entirety against the County, (2) dismissed plaintiffs' civil RICO claims against the other three defendants, and (3) dismissed all of the individual claims of Landi. The court directed that the 1985 Judgment be entered immediately, stating as follows:

The court finds that there is no just reason for delay. The issues of law that may be presented on the partial judgment are unrelated to the remaining claims. The additional proceedings which relate to the individual claims of the members of the class may take many months and possibly years to resolve. It would be unfair to the parties to require that they await review until the resolution of those unrelated claims. See Rule 54(b), Federal Rules of Civil Procedure.

Memorandum of Decision and Order dated December 20, 1985 ("Posttrial Decision"), at 27-28.

In the Posttrial Decision, the court also granted the request of class counsel for an interim award of attorney's fees, ordering the County and Town Committees and the Town to pay counsel a total sum of $100,000. The court did not reject that this award be reflected in the 1985 Judgment.

Looking toward the remedy phase of the litigation, the court noted that it had originally defined the plaintiff class to include "those past and present employees whose claims accrued on or before June 27, 1977, the date of class certification." Posttrial Decision at 18. It concluded that the jury's finding that plaintiffs had failed to establish the continuance of the coercive solicitation after January 1, 1976, should be incorporated into the definition of the class, and it therefore redefined the class as "those public employees who made contributions during the period January 1, 1973 to January 1, 1976 and seek recovery of the sums contributed, and those public employees who claim injury by reason of refusal to make such payment demanded of them during the period." Id. This order apparently was modified orally at a conference on January 17, 1986, during which the district court indicated that the class consists of public employees whose claims accrued between December 14, 1973, and December 14, 1976.

In the Posttrial Decision the court established a procedural framework for proof of individual claims. It ruled that a prima facie case would be made out by proof that a person, during the pertinent period, was a public employee who either contributed to the Republican Party through fear of economic loss or suffered loss of promotion or other benefits because he refused to contribute in response to a threat of such loss. The burden would then shift to the defendants to rebut the prima facie case by showing that they had legitimate reasons for their actions. The ultimate burden of persuasion would remain on individual class members.

E. The Present Appeals

Plaintiffs have appealed from various parts of the 1985 Judgment and the Posttrial Decision. They challenge so much of the 1985 Judgment as dismissed their classwide complaint against the County and dismissed their RICO claims against the other defendants. They challenge the posttrial Decision's rulings with respect to the showing that each class member must make to recover damages on the § 1983 claims, contending that the jury's answers to interrogatories sufficiently establish plaintiffs' right to recover on a classwide basis and that the court should have established a mechanism for each class member to recover while preserving his anonymity. In addition, plaintiffs contend that the ruling that claims accruing prior to December 14, 1973, were time-barred was improper because the applicable statute of limitations was tolled by the pendency of their state court action or by defendants' duress. They also contend that they are entitled to damages with respect to the period after January 1, 1976, because the jury found that coercive acts by Limongelli spanned the period 1978 to 1984 and because Limongelli's acts are attributable to the Town as a matter of law and to all defendants as acts of their racketeering enterprise.

Landi has appealed the 1985 Judgment, challenging the granting of summary judgment dismissing his individual claims on statute-of-limitations grounds. He argues that even if there was no tolling, summary judgment was precluded by the existence of genuine issues of fact as to when his claims accrued.

The County Committee, the Town Committee, and the Town have cross-appealed from so much of the Posttrial Decision as denied their motions to dismiss all or part of the complaint, denied their alternative motions for a new trial on the § 1983 claims, and granted interim attorney's fees. They also contend that the action is not properly maintainable as a class action.

For the reasons below, we dismiss defendants' cross-appeals for lack of appellate jurisdiction and we conclude that we are without jurisdiction to entertain plaintiffs' appeal insofar as it challenges the court's rulings with respect to their ongoing § 1983 claims. With respect to plaintiffs' challenges to the 1985 Judgment, we conclude that plaintiffs are not entitled to a new trial against the County with respect to the period covered in the liability trial but that the County was not entitled to a dismissal of the complaint in its entirety because the court erred in ruling that the statutes of limitations applicable to plaintiffs' claims were not tolled. Our ruling on tolling is, in part, applicable to Landi's individual claims against the County and the County Committee, and hence certain of Landi's claims were improperly dismissed. We also conclude that the court erred in dismissing the RICO claims on the basis of the answers given by the jury to the special interrogatories, because those answers left a gap that should have been filled by the court. Accordingly, we affirm the 1985 Judgment in part, vacate it in part, and remand to the district court for further proceedings.

II. APPELLATE JURISDICTION

Many of the issues raised by the parties on these appeals and cross-appeals need not detain us long, for we lack jurisdiction to consider them. Since none of the decisions here challenged are orders relating to injunctions, see 28 U.S.C. § 1292(a), or interlocutory orders as to which this Court has granted leave to appeal, see 28 U.S.C. § 1292(b), we have no jurisdiction to review them unless they are "final" orders within the meaning of 28 U.S.C. § 1291. Most of the challenged decisions, particularly those relating to plaintiffs' § 1983 claims against the Town, the Town Committee, and the County Committee, do not meet this requirement.

A. Defendants' Cross-Appeals

Although the district court made many rulings both prior to and after the liability trial, its only final judgment was the 1985 Judgment. Defendants' cross-appeals do not challenge any of the decisions embodied in the 1985 Judgment, for that judgment only dismissed claims. The decisions challenged by defendants in the cross-appeals -- refusing to dismiss plaintiffs' § 1983 claims except against the County, refusing to decertify the plaintiff class, and making an interim award of attorney's fees -- are embodied only in the Posttrial Decision and other similarly interlocutory orders. The district court has never yet purported to determine with finality the extent of plaintiffs' rights to recover from the Town, the Town Committee, and the County Committee on the § 1983 claims. All of its interlocutory orders remain subject to modification or adjustment prior to the entry of a final judgment adjudicating the claims to which they pertain. See, e.g., Fed. R. Civ. P. 54(b); Leonhard v. United States, 633 F.2d 599, 608 (2d Cir. 1980) (interim order dismissing claims against defendant subject to revision), cert. denied, 451 U.S. 908, 101 S. Ct. 1975, 68 L. Ed. 2d 295, (1981); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 896 (2d Cir. 1982) (interim award of attorney's fees subject to revision and not immediately appealable).

We thus lack jurisdiction to entertain the cross appeals and they are dismissed.

B. Plaintiffs' Challenges to Orders Not Included in the 1985 Judgment

Plaintiffs' challenges to district court orders that are not embodied in or subsumed within the 1985 Judgment are similarly flawed. Thus, we disagree, in part, with plaintiffs' contention that their appeal from the 1985 Judgment enables them to seek review of

the District Court's dismissal of the RICO claim; its denial of the new trial against Nassau County; its refusal to toll the statute of limitations; its refusal to permit recovery of the Limongelli funds; its refusal to grant refunds subsequent to 1976; its refusal to grant class-wide compensatory and punitive damages for the violation of First Amendment rights; and its refusal to establish an acceptable remedial mechanism . . .

(Principal Brief Submitted on Behalf of the Plaintiff-Class as Appellant and Cross-Appellee at 30.)

Insofar as these rulings constituted or were ingredients of the final dispositions incorporated in the 1985 Judgment, we may, for the reasons discussed in Part II.C. below, properly review them. Only the first three issues listed by plaintiffs, fall into this category, i.e., (1) the dismissal of the RICO claims, (2) the denial of the new trial against the County, and (3) the court's refusal to toll the statute of limitations, the latter two issues being appropriate because they are subsumed in the 1985 Judgment's final dismissal of the complaint against the County.

The remaining issues, however, are related only to plaintiffs' § 1983 claims. Although plaintiffs assert here that defendants are liable for Limongelli's extortionate acts under RICO, the jury interrogatories with regard to the Limongelli acts and the Town's responsibility for those acts were posed only as claims under § 1983. We have seen no indication in the record that plaintiffs objected to the failure to ask the jury whether these acts constituted RICO predicate acts, and hence we see no basis for reviewing the court's refusal to grant judgment n.o.v. as to these acts as part of our review of the dismissal of the claims under RICO. The other issues listed by plaintiffs focus squarely on the remedy proceedings on their surviving § 1983 claims against the Town, the Town Committee, and the County Committee. These claims have not been finally adjudicated; the court's rulings with respect to such matters as the nature of the proof required for the establishment of damages, the procedures to be followed for the proof of individual class members' claims, and the period for which damages may be recovered are interlocutory orders. These rulings were not included within the court's direction that a final judgment enter immediately pursuant to Rule 54(b), nor, in view of their interlocutory nature, would their inclusion have been proper. See, e.g., Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 100 L. Ed. 1297, 76 S. Ct. 895 (1956) (court has no power to enter judgment pursuant to Rule 54(b) with respect to orders that are not final adjudications); Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-44, 47 L. Ed. 2d 435, 96 S. Ct. 1202 (1976) (decision finding liability but not determining damages or other relief is not final and hence not appropriate for entry of judgment pursuant to Rule 54(b)).

Plaintiffs have argued that the district court's refusal to adopt remedy procedures that would ensure the plaintiff class members' anonymity should be regarded as a collateral order appealable under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). We are unpersuaded. To come within the "collateral order" doctrine, an order must at a minimum, (1) "'resolve an important issue completely separate from the merits of the action'," (2) "'conclusively determine the disputed question'," and (3) "'be effectively unreviewable on appeal from a final judgment.'" Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 2761, 86 L. Ed. 2d 340 (1985) (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978)). The denial of anonymity does not meet any of these tests.

First, rulings as to what showings must be made in order for plaintiff class members to recover can hardly be thought to be "collateral"; these rulings, focusing on such matters as proximate causation between an individual refusal to contribute and absence of promotion, or between coercion and an individual contribution, go straight to the merits of plaintiffs' rights to refunds. Second, even if it dealt with a collateral matter, the order of the district court establishing procedures that require disclosure of the identities of class members who wish to recover damages is no more a conclusive resolution of the anonymity question than would be any other order requiring the disclosure of information. See, e.g., Shattuck v. Hoegl, 523 F.2d 509, 516 (2d Cir. 1975) ( order requiring witness's disclosures despite assertion of work product and attorney-client privileges not reviewable until entry of either a final judgment or an order holding witness in contempt). As we have stated in dismissing an appeal from an order denying a motion to quash a subpoena,

while the Cohen doctrine holds that certain collateral orders may be deemed final, it does not transmute a preliminary collateral order into a conclusive collateral order. Even as to the collateral matters themselves a sense of finality is required, and federal appellate jurisdiction depends on the existence of a decision that leaves nothing for the court to do but execute the order.

In re Grand Jury Subpoena, 607 F.2d 566, 569 (2d Cir. 1979). In the present case there has been no § 1983 claim decision, except that dismissing the County, on which the district court could enter or execute a judgment. Instead, the order requiring disclosure leaves the plaintiffs free to choose whether or not to make the disclosures. Hence it is not a final order. See, e.g., Sierra Club v. SCM Corp., 747 F.2d 99, 108 (2d Cir. 1984) (order permitting plaintiff to proceed with its suit on condition that it disclose information about its members in order to test standing to sue "would not have been appealable").

Finally, a disclosure order is not effectively unreviewable on appeal. See, e.g., Shattuck v. Hoegl, 523 F.2d at 516; Catena v. Capitol Industries, Inc., 543 F.2d 77, 78-79 (9th Cir. 1976) (order requiring class members to provide certain information or be excluded from class does not meet Cohen test because it may be reviewed on appeal from final judgment). In the present case, if plaintiff class members decline to reveal their identities and are therefore denied damages, the order denying them anonymity will be reviewable on appeal from the final judgment.

We conclude that none of the district court's orders that are not either embodied in the 1985 Judgment or subsumed in some part of that Judgment are properly before us on these appeals and cross-appeals, and we turn finally to the question of whether the dismissals ordered in that judgment were properly certified by the court for immediate entry of a final judgment.

C. The Propriety of the Rule 54(b) Certification of the 1985 Judgment

Fed. R. Civ. P. 54(b) provides in pertinent part as follows:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, 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 Rule is designed to allow the district court to provide relief, where it is needed to avoid undue hardship to the parties, from the normal principle that a final judgment is not entered prior to the complete adjudication of all the claims of all the parties. See generally Sears, Roebuck & Co. v. Mackey, 351 U.S. at 431-36.

By the terms of the Rule, the court may direct entry of a partial final judgment either (1) disposing of claims of or against fewer than all of the parties to the case or (2) disposing of fewer than all of the claims. in either context, the matter of whether to direct the entry of a partial final judgment in advance of the final adjudication of all of the claims in the suit must be considered in light of the goal of judicial economy as served by the "'historic federal policy against piecemeal appeals.'" Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 8, 64 L. Ed. 2d 1, 100 S. Ct. 1460 (1980) (quoting Sears Roebuck & Co. v. Mackey, 351 U.S. at 438). Respect for that goal requires that the court's power to enter a final judgment before the entire case is concluded, and thereby permit an aggrieved party to take an immediate appeal, be exercised sparingly. See, e.g., Cullen v. Margiotta, 618 F.2d at 228 ("'The power which this Rule confers upon the trial judge should be used only "in the infrequent harsh case" . . ." (quoting Panichella v. Pennsylvania R.R., 252 F.2d 452, 455 (3d Cir. 1958)). There are few guidelines as to when entry of the partial judgment should be ordered but several clear-cut strictures as to when it should be eschewed.

In the multiple party situation where the complaint is dismissed as to one defendant but not others, the court should not, as a general matter, direct the entry of a final judgment pursuant to Rule 54(b) if the same or closely related issues remain to be litigated against the undismissed defendants. See, e.g., Arlinghaus v. Ritenour, 543 F.2d 461, 464 (2d Cir. 1976) (per curiam) (appeal dismissed where decision of issues presented would implicate rights of other defendants who were not parties to the appeal). In such circumstances, where the resolution of the remaining claims could conceivably affect this Court's decision on the appealed claim, see Campbell v. Westmoreland Farm, Inc., 403 F.2d 939, 943 (2d Cir. 1968), the interlocutory order of dismissal should remain interlocutory and therefore subject to appropriate revision until the liabilities of all the defendants have been adjudicated, see generally Leonhard v. United States, 633 F.2d at 608.

In a case involving multiple claims, the court should not enter final judgment dismissing a given claim unless that claim is separable from the claims that survive. See I.L.T.A. Inc. v. United Airlines, Inc., 739 F.2d 82, 84 (2d Cir. 1984). Claims are normally regarded as separable if they involve at least some different questions of fact and law and could be separately enforced, see United States v. Kocher, 468 F.2d 503, 509 (2d Cir. 1972), cert. denied, 411 U.S. 931, 93 S. Ct. 1897, 36 L. Ed. 2d 390 (1973), or if "different sorts of relief" are sought and, consequently, the claim for greater relief would be pressed by the plaintiff even if the other claim were granted, see Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 580-81 & n.18, 63 L. Ed. 2d 36, 100 S. Ct. 800 (1980) (claimant would pursue requested ban on all vessels even after ban of one); see also 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2657, at 67 (2d 3d. 1983) (claims are separable when there is more than one possible recovery and the recoveries are not mutually exclusive). When these features are present, claims may be considered separable even if they have arisen out of the same transaction or occurrence. See Cold Metal Process Co. v. United Engineering & Foundry Co., 351 U.S. 445, 452, 76 S. Ct. 904, 100 L. Ed. 1311 (1956); Sears, Roebuck & Co. v. Mackey, 351 U.S. at 436-37 & n.9.

If the court concludes that the above criteria with respect to separability and disparity of claims are met, it may direct that the partial final judgment be entered, but only, in the terms of Rule 54(b), if it determines that "there is no just reason for delay." Such a determination is committed to the sound discretion of the district court and may be set aside only for abuse of discretion, see Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 8-10 (to justify reversal, district court's determination must be "clearly unreasonable"); Sears, Roebuck & Co. v. Mackey, 351 U.S. at 437; Cold Metal Process Co. v. United Co., 351 U.S. at 452, but the certification should not be granted routinely, see Curtiss-Wright Corp. v. General Electric Co., 446 U.S. at 8 ("Not all final judgments on individual claims should be immediately appealable, even if they are in some sense separable from the remaining unresolved claims.") Rather it should be "granted only if there exists 'some danger of hardship or injustice through delay which would be alleviated by immediate appeal,'" Cullen v. Margiotta, 618 F.2d at 228 (quoting Brunswick Corp. v. Sheridan, 582 F.2d 175, 183 (2d Cir. 1978)). Such a danger may be presented where an expensive and duplicative trial could be avoided if, without delaying prosecution of the surviving claims, a dismissed claim were reversed in time to be tried with the other claims. See, e.g., Hunt v. Mobil Oil Corp., 550 F.2d 68, 70 (2d Cir.), cert. denied, 434 U.S. 984, 98 S. Ct. 608, 54 L. Ed. 2d 477 (1977).

Since the appellate court may review the Rule 54(b) certification for abuse of discretion, it does not suffice for the district court to announce its determination that "there is no just cause for delay" in conclusory form. Rather, its certification must be accompanied by a reasoned, even if brief, explanation of its conclusion. Cullen v. Margiotta, 618 F.2d at 228. In reviewing the explanation, if the question of whether certification should have been granted is a close one, we will normally accept it if that course "will make possible a more expeditious and just result for all parties." Gumer v. Shearson, Hammill & Co., 516 F.2d 283, 286 (2d Cir. 1974).

The present case, of course, involves both multiple claims and multiple parties, and insofar as is pertinent to the present appeals, the district court dismissed all the claims of one of the plaintiffs (Landi), all the claims against one of the defendants (the County), and one of the remaining claims (RICO) but not the other (§ 1983). The direction for the immediate entry of the 1985 Judgment as a final judgment was accompanied by the court's statement of its view that since the issues of law presented by the 1985 Judgment were unrelated to the surviving § 1983 claims, and the remedy phase of the letter claims could last years, and the remedy phase of the latter claims could last years, there was no just reason to require the parties to await the conclusion of that remedy phase in order to seek review of the claims already dismissed. We conclude that the Rule 54(b) certification with respect to the 1985 Judgment was within the proper bounds of the court's discretion.

1. The Dismissal of the Complaint Against the County

We see no abuse of the court's discretion in directing that final judgment enter immediately with respect to plaintiffs' claims against the County. The jury's answers to the interrogatories had consistently found that, in the period covered by the liability trial, the County had not participated in the alleged wrongdoing. Claims as to earlier periods had been summarily rejected by the court. The court had considered plaintiffs' request for a new trial on the basis of alleged errors in evidentiary and discovery rulings and had rejected that request. Thus, there was no longer a serious possibility that plaintiffs could recover against the County.

Nor was there any likelihood that the district court litigation of plaintiffs' surviving claims would in any way make moot an appellate ruling on the issues relating to the dismissal of the case against the County, for the liability issues common to all defendants had been disposed of, either by the district court in its rulings or by the jury in its answers to interrogatories. The issues that remain to be litigated, i.e., the remedies to which the plaintiffs are entitled, have no bearing on the liability issues decided in favor of the County.

Finally, we find not appropriate the district court's view that, in light of the possible length of the remedy stage of the case, it would be unjust to require the plaintiffs to wait until that phase is concluded to obtain appellate review of the dismissal of the County, for vacation of that dismissal could require plaintiffs to go through a ...


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