the suspects as "white males" or "young white males" were non violent crimes. Thus, had the court treated the motion as one for summary judgment, which it did not, the court would have found no material factual issue. Accordingly, and in the interest of judicial economy, the court dismissed the Equal Protection claims against the Oneonta defendants with prejudice, because there was no set of facts that the plaintiff could plead to make out a viable claim.
The court did not state, as is the sum and substance of the plaintiffs' argument herein, that the plaintiff must engage in discovery before filing a complaint. Nor did the court hold the plaintiffs to a higher pleading standard. However, as set forth in Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987), a complaint setting forth civil rights claims must set forth "some specific allegations of fact," rather than "a litany of general conclusions that shock but have no meaning." The plaintiffs did not meet this standard.
2. Factual Findings
As to the plaintiffs' contention that the statement "the New York State Police supervised the investigation, and using dogs, traced the assailant's path to a wooded area at the base of the State University of New York's Oneonta campus," constitutes a finding of the court, the court states that no party is precluded from introducing evidence at trial, otherwise admissible, to show the extent of the state police's efforts to "track" the perpetrator.
F. Plaintiffs' Motion For Certification
A party seeking leave to appeal a district court's interlocutory order must first obtain certification from that court pursuant to 28 U.S.C. § 1292(b). In order to certify, the district court must find that: (1) the order "involves a controlling question of law"; (2) "as to which there is substantial ground for difference of opinion"; and that (3) "appeal from the order may materially advance the ultimate termination of the litigation...." Id. The trial judge has substantial discretion in deciding whether or not to certify. See D'Ippolito v. Cities Service Co., 374 F.2d 643, 649 (2d Cir.1967); Ferraro v. Secretary of HHS, 780 F. Supp. 978, 979 (E.D.N.Y. 1992). The court should construe the requirements for certification strictly, see Klinghoffer v. S.N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir.1990), and certify only where exceptional circumstances warrant. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 475, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978); Klinghoffer, at 24-25; Abortion Rights Mobilization, Inc. v. Regan, 552 F. Supp. 364, 366 (S.D.N.Y. 1982). The court notes that certification pursuant to 28 U.S.C. § 1292(b) has been permitted when a court's ruling has obviated any possibility of relief as to some plaintiffs, or would have a decisive effect on the amount of recovery. See Junco v. Eastern Airlines, Inc., 399 F. Supp. 666 (S.D.N.Y.), aff'd without opinion, 538 F.2d 310 (1975).
In the instant case, the court declines to exercise its discretion and certify a question for appeal. The question that the plaintiffs seek to have certified has been loosely framed, but relates to the court's determination of what constitutes sufficient pleading, in the context of an Equal Protection claim, as to the similarly situated group. The court's ruling as to this issue does not obviate recovery for any subset of plaintiffs to this action, as there are numerous other outstanding claims. Moreover, it cannot be argued that the court's ruling would have a decisive effect on the amount of recovery, although the court recognizes the inability to recover on any single claim can be presumed to have some effect on the amount of recovery. Finally, the court has determined that certification of a question for appeal would delay, rather than expedite this torpid case. See Coopers & Lybrand, 437 U.S. at 475; Klinghoffer, at 24-25. Accordingly, the plaintiffs' motion for certification is denied.
For the foregoing reasons, the court (1) DENIES the defendant Hartmark's motion for reconsideration; (2) GRANTS the state defendants', Wilson, Jackson, Hunt, and Clum, motion for reconsideration, and dismisses the Fourth Amendment claims asserted against them; (3) DENIES the Oneonta defendants' motion for reconsideration; (4) DENIES the plaintiffs' motion for reconsideration; and (5) DENIES the plaintiffs' motion for certification of a question for appeal.
It is so ordered.
Thomas J. McAvoy
Chief U.S. District Judge
Dated February 19, 1996
at Binghamton, New York
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