Local 3 shall file any reply papers by May 20, 1996. The court will thereafter decide the motion expeditiously, so as not to delay trial of this matter.
III. Plaintiff's motion for entry of partial judgment
Plaintiffs have also asked the court to direct entry of a final judgment on all counts of their complaint as to defendants JIB, AECI, and NYECA, and on Counts One through Six, the RICO and antitrust claims, as to Local 3. The purpose of this application is to allow them to pursue an immediate appeal as of right of the court's Order of February 9, 1996, pursuant to 28 U.S.C. § 1291. Plaintiffs subsequently asked the court to defer consideration of that motion, pending a decision on the motions for reconsideration. Having resolved those motions, the court now denies the request for entry of final judgment, for the reasons stated below.
In a case that involves multiple parties or multiple claims for relief, Fed.R.Civ.P. 54(b) permits the court to direct entry of a final judgment as to 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." This case involves both multiple claims and multiple parties. Certification is therefore appropriate if the court determines that no just reason exists for delay, and supports that determination with a reasoned analysis. See, e.g., Harriscom Svenska AB v. Harris Corp., 947 F.2d 627 (2d Cir. 1991). In making that determination, the court must decide whether plaintiff's RICO and antitrust claims are "inherently inseparable" from or "inextricably interrelated" to their § 303 and state law tort claims. See Ginett v. Computer Task Group, 962 F.2d 1085, 1096 (2d Cir. 1992) ("Only those claims "inherently inseparable" from or "inextricably interrelated" to each other are inappropriate for rule 54(b) certification.").
At the outset, the court notes that this is not a case like Ginett, in which the district court had determined that the plaintiff was entitled to relief on one of his claims. See id. at 1090-91, 1097. In that case, failure to grant Rule 54(b) certification would have served to delay plaintiff's recovery. In this case, by contrast, the court has determined that plaintiffs are not entitled to relief on many of their claims. Regardless of whether the court issues a final judgment at this stage, they will not be able to recover on those claims unless they prevail on appeal, and subsequently at trial. Consequently, failure to direct entry of a final judgment will not significantly delay plaintiff's recovery in this case.
Plaintiffs' principal argument in favor of Rule 54(b) certification is that, if this case proceeds to trial on the remaining claims, and this court's grant of summary judgment is subsequently reversed on appeal, they may be forced to proceed to another trial on the remaining claims. Plaintiffs argue that a second trial would involve many of the same issues and witnesses, and that they will incur substantial additional costs. This argument has some force. Rule 54(b) certification may be appropriate "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 other claims." Cullen v. Margiotta, 811 F.2d 698, 711 (2d Cir.), cert. denied, 483 U.S. 1021 (1987); see also Hunt v. Mobil Oil Corp., 550 F.2d 68, 70 (2d Cir.) (affirming grant of Rule 54(b) certification where district judge made specific findings that second trial could pose additional expense to parties and that appeal would not delay trial or discovery), cert. denied, 424 U.S. 984 (1977).
In this case, the court cannot conclude that an immediate appeal would not necessitate a significant delay in the prosecution of the remaining claims. That distinguishes this case from Hunt, in which the court granted Rule 54(b) certification after dismissing a claim on a motion under Fed.R.Civ.P. 12(b)(6). Thus the dismissal in Hunt occurred early in the action, prior to the commencement of discovery. Here, the parties have already engaged in extensive discovery, and the case is essentially ready for trial on the narrow issues delimited in the court's Order of February 8, 1996. If the court were to follow the course urged by plaintiffs, a trial on those claims would be delayed until the resolution of the appeal--a process that could take many months.
Furthermore, it is possible that a trial on the remaining claims will dispose of issues that could render plaintiff's appeal moot. As noted above, to recover on their claims under § 303, plaintiffs will be required to show an injury to business or property caused by Local 3's activities. The same requirement of injury to business or property is a critical element of plaintiff's claims under RICO and the Sherman Act. See 18 U.S.C. § 1964(c); 15 U.S.C. § 15. Like the § 303 claims, the RICO and antitrust claims are governed by a four-year statute of limitations. See 15 U.S.C. § 15b; Agency Holding Corp. v. Malley-Duff & Associates, 483 U.S. 143, 156, 97 L. Ed. 2d 121, 107 S. Ct. 2759 (1987) (holding that four-year limitations period for antitrust statute applies to civil RICO actions). Furthermore, the actions that are alleged to be unfair labor practices for the purposes of § 303 are the same as the actions alleged to be predicate acts under RICO and actions in restraint of trade under the Sherman Act. Consequently, if the court were to enter final judgment on plaintiffs' RICO and antitrust claims, and a jury were to determine that some or all of the plaintiffs have not suffered any injury to their business or property, the RICO and antitrust claims might become moot. Under these circumstances, the court is persuaded that all of plaintiffs' claims in this action are inextricably interrelated, and that they should try the claims that remain in this action before proceeding to the Second Circuit. See Ginett, 962 F.2d at 1095 ("We should avoid the possibility that the ultimate disposition of the claims remaining in the district court could either moot our decision on the appealed claims or require us to decide issues twice.").
For the foregoing reasons, plaintiff's motion for reconsideration is denied. Local 3's motion for reconsideration is granted in part, and this action is dismissed with prejudice as to plaintiffs All-Phase, Expert, and Kolsch. In all other respects, Local 3's motion for reconsideration is denied. Furthermore, the court having been informed by plaintiffs' counsel that plaintiff Cunardi Contracting, Inc. has discontinued its participation, this action is dismissed with prejudice as to Cunardi. It is hereby ordered that plaintiffs shall show cause by May 15, 1996, why summary judgment should not be granted in favor of defendants on Count Eight of the complaint, and that Local 3 shall file any reply papers by May 20, 1996. Plaintiffs' motion for entry of a partial judgment is denied.
Allyne R. Ross
United States District Judge
Dated: May 8, 1996
Brooklyn, New York