The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge
REPORT AND RECOMMENDATION
TO THE HONORABLE HAROLD BAER, JR., UNITED STATES DISTRICT JUDGE
Before the Court is plaintiff Rabbi Jacob Joseph School's
("School") application for an order, pursuant to Fed.R.Civ.P.
54(b), directing the entry of a final judgment as to fewer than
all of the claims brought in this action, so that an appeal might
be taken immediately. The School commenced this class action
against defendants Province of Mendoza ("Province"), the Bank of
New York and JP Morgan Chase Bank (collectively, "defendants"),
alleging, inter alia, that: (1) the Province has not made
certain interest payments due on bonds held by the School and
other plaintiff class members; and (2) the Province, with the
assistance of the other defendants, has attempted to change the
bonds' original indenture, thereby violating the terms of that
agreement and/or breaching various common law duties owed by the
defendants to the bond holders. In an order dated March 25, 2005
("March 25th Order"), your Honor dismissed without prejudice the
plaintiff's claim to recover unpaid interest ("Interest Claim"),
dismissed with prejudice all other claims made in the action and directed the
Clerk of Court to "close the file."
The defendants oppose the instant application, on the grounds
that: (a) the instant application is without the court's
jurisdiction, as a notice of appeal has been filed by the School
with the Second Circuit Court of Appeals; and (b) even if the
application were within the court's jurisdiction, it would not be
appropriate to grant it, as the claims that have been dismissed
with prejudice are "clearly connected" to the Interest Claim.
With exceptions not here pertinent, "the court of appeals lacks
jurisdiction to hear an appeal [taken from a decision of a
district court] unless the decision is, or is embodied in, an
order or judgment that is `final' within the meaning of
28 U.S.C. § 1291 (`The courts of appeals . . . shall have jurisdiction of
appeals from all final decisions of the district courts of the
United States. . . .')." Citizens Accord, Inc. v. Town of
Rochester, 235 F.3d 126, 128 (2d Cir. 2000). "[A] dismissal
without prejudice that does not give leave to amend and closes
the case is a final, appealable order under 28 U.S.C. § 1291."
Wynder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004). However,
where the remaining claims in an action are dismissed voluntarily
or upon the consent of the plaintiff, an appeal is not permitted.
See Chappelle v. Beacon Communications Corp., 84 F.3d 652,
654 (2d Cir. 1996).
In this action, the Interest Claim was not dismissed
voluntarily. Nothing in the record before the Court suggests that
the Interest Claim was dismissed upon the consent of the School,
or that the School was granted leave to amend its complaint to
replead the Interest Claim. Moreover, the March 25th Order
directs expressly that this case be closed. Accordingly, the
March 25th Order is a final, appealable order under
28 U.S.C. § 1291. See Wynder, 360 F.3d at 76. Therefore, the instant
application is moot and should be denied. RECOMMENDATION
For the reasons set forth above, the School's application for
an entry of a final judgment as to fewer than all of the claims
brought in this action should be denied, as it is moot.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Harold Baer,
Jr., 500 Pearl Street, Room 2230, New York, New York, 10007. Any
requests for an extension of time for filing objections must be
directed to Judge Baer, and to the chambers of the undersigned,
40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO
FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd.,
838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983).
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