*1 reversible prejudicial hence To be testimony have had sub- error, must judgment.8 We influence stantial judg- fair assurance believe with swayed admission ment was Lumbard, Judge, concurred Chief missing concerning testimony opinion. and filed checks. Judge, Anderson, dissented Affirmed. opinion. and filed INC., al., BUFFALO, et BUILD OF Plaintiffs-Appellants, Mayor SEDITA, and Chief

Frank A. Buffalo, et Executive al., Defendants-Appellees. 484, 34886.

No. Docket Appeals, States

United Court Second Circuit.

Argued March April

Decided (10th 8. Havelock v. United *2 or a final 28 U.S.C. § it is maintainable nonetheless

pursuant 1292(a) to as 28 U.S.C. § “refusing” an in- junction. are of view that Since applies reach the the latter statute merits and hold partial improper. dismissal was I.

That the order was not dismissal final conclusively by one is determined 54(b). reference to F.R.Civ.P. Plain- tiffs include numerous individuals who claim that have violated rights guaranteed by to them the Consti- tution, as as well nine and civic private organizations.1 Suing individu- ally representatives and as aof rather amorphous similarly class “others sit- uated,”2 they damages monetary seek variety and equitable relief, includ- Schwartz, York Herman New Civil ing quite remedies, some drastic as will Union, Buffalo, (Richard Y. Liberties N. appear. The three defendants as to Koren, Lipsitz, Putri- I. Carmen Edward complaint whom the been has dismissed Buffalo, Jay, Y., no, N. David Gerald Sedita, Mayor are Frank A. and brief), plaintiffs-appellants. Chief City Buffalo, Executive of the York; New McLoughlin, Buffalo, Commissioner Y.N. James J. Department, Buffalo Police Manguso, Frank Feli- Corporation (Anthony Coun- cetta; and brief), Y., Human sel, Buffalo, for de- N. Relations of Plaintiffs here Buffalo. fendants-appellees. peal Mayor from the dismissal to as LUMBARD, Judge, Before Chief Sedita and Commissioner Felicetta. ANDERSON, Circuit KAUFMAN addition, complaint joins as defend- Judges. ants various members of the Buffalo Department, Police some named oth- KAUFMAN, R. IRVING anonymous, ers allegedly who have en- Judge: gaged systematic pattern in “a of con- interlocutory appeal resulting numerous, This reaches us duct procedural posture. rights, privileg- awkward On distinct violations 13, 1970, Judge es, March Henderson dis- and immunities” of they missed civil represent. Appellees omnibus class seek (brought 1981- plain- and Felicetta Sedita are §§ said 1983, 1986, 1988-1990) encouraged,” tiffs three to “have condoned or many defendants to state an “permitted” failure have “directed” claim, (and alternatively) actionable F.R.Civ.P. such Also conduct. Mayor The initial is whether the order and Police Commissioner are undoubtedly charged having so “lost control” para alleges organ- 1. The fifth class is described these graph as “all of those izations “are concerned and effected” persons in, employed in, alleged police reside who their abuses enjoy benefits, membership or are serv entitled includes “members of the class represent.” ices and facilities Buffalo.” seek effectively the same denied at to trict court “as the Buffalo some preliminary plaintiffs’ motion for a impossi- time law enforcement make effective injunction those defendants.4 having re- failed to also with ble” and spe- denial The resultant “numerous spond manner appealable under 28 U.S.C. oth- by plaintiffs complaints” cific *3 reasoning (1). and decision in Gen of the police in violation conduct ers law, Metals Co. v. Marvel Rare and eral Electric Constitution, York New federal 430, 202, Co., L.Ed. Regulations. S.Ct. U.S. Department Police (1932) and, persuasive in this 408 context, appellees of as to The dismissal authority that is also would be continuing did not affect the course ignore: to difficult against the other vitality the action dismiss, by motion to But their defendants, officers. individual the brought plaintiffs on for themselves did direct court the district Because among that, hearing very question the against entry a final the appellees others, presented to would have been “no that there was or determine upon application for court formal entering delay” prior just to reason interlocutory injunction. is, That granting defend final his order a allegations of the answer ap is not motion Rule ants’ a sufficient to cause constitute 1291 or pealable under 28 U.S.C. § injunction. for an And ac 54(b). did district court Nor necessarily decided that court toas company a statement its with alleged de- in the counterclaim facts ap desirability in- not entitled to an fendants were junction. at required plaintiffs to peal if were * * * said It cannot be tempt proceed under 28 U.S.C. § deny to de- dismissal did not (b). injunc- protection of fendants the prayed tion 433, in their answer. Id. however, complaint, Plaintiffs’ at 203. 53 S.Ct. permanent prayers for included several defendants. all for fail- Henderson’s dismissal 1970, plaintiffs Moreover, 3, prac- March claim not a mere ure to state a was injunc preliminary “controlling sequence in motion for a added a tice pendente lite portions would be tion to restrain which tried,” case committing list of Spangler a formidable from United police practices. 1242, 1969),6 (9th specific kinds of abusive or sim- Mayor, granting consigning plaintiffs’ By ply the motion claim Department separate appellees to a action as an exer- Police Commissioner dismiss,3 Relations, scope cise of the court’s control over of Human February 24, appellees by jurisdiction, to dis- moved 3. counterclaim asserted On a prayer action, matter certain strike for an miss the class defendant which included complaint, injunction accounting. to sever from the Court action, un- well as to dismiss un- held that the dismissal was causes predecessor 12(h), 227, to state both for failure der old 28 der Rule present for lack of a claim and Section subject matter. Spangler 6. was a class action individual seeking desegregate students three Pas- appellants’ appellees’ motions Both adena, California, public high schools. date, were returnable March 9. On The motion of the United to inter- States during argument Judge Henderson, before granted vene was and the Government plaintiffs postpone the ar- volunteered to enlarged requesting in- the action preliminary gument on the motion for a junction desegregate the entire Pasa- when but the offer mooted system. public school The district dena appel- granted the bench court granted motion to strike defendants’ lees’ motion to dismiss. respect claims Marvel, patent high originally infringement action, all but the three schools dismissed, the district court had for lack suit. litigation. policemen See Stewart-Warner dividual to substitute ade- Westinghouse Corp. quately Electric plaintiffs the relief seek 1963) 822, (2d present appellees, it would dissenting), (Friendly, J., denied, against every have to run cert. officer 11 L.Ed.2d Department. U.S. 84 S.Ct. Buffalo Police (1964). Rather, the district court’s dismissal Chief plaintiffs Police, determination were en of Human Re- lations, law, operated titled to no relief under federal in as a refusal a dis- cluding relief, preliminary injunc- de was as tinct for an claim tion, cisive would have been for which grant preliminary injunction might emerge refusal to never from the case could grounds adequately failed to substitute. demonstrate either likelihood of ulti Finally, Anderson is concerned *4 injury. irreparable mate success appeal disposition present that the may rights of other de- affect the the Judge Anderson dissents from this affording case, in the fendants without portion holding premise of our on the opportunity heard. But them an to be against that the dismissal of the action disposition have the of this will Police, the the Chief of greater impact the no Department of Human Relations not did police if defendants than individual ** * quality “affect re- plaintiffs adopted had a different strate- prayed by plaintiffs.” lief for Our litigation join gy not to and chosen response to is this need not de- we against police- their the individual claims against cide that most dismissals as against separate claim men their with seeking injunc- in some defendants suits inevitably' appellees. present Courts appealable. tive relief are It suffi- peo- legal principles affect announce say cient to that our here is adjudications ple unrepresented in the clearly established under the second of emerge. And principles from which proposed Anderson’s own tests. in this specifically, the other merely The not dismissal did limit least affected not be will any number of defendants which question disposition our injunctive might ultimately run. relief plaintiffs’ complaint a stated words, it resulted in Anderson’s present cause of action “contracting scope of the pellees. sought.” originally apparent It is gist plaintiffs’ that the claim was II. knowledgeable systematic failure of merits of Hence we reach the responsible to take authorities par dismissal, find ourselves pattern correct a of abusive measures to disagreement Henderson. police practices. tial In order establish judging the pattern police The standard for venerable that there in fact a pleadings propriety misbehavior, plaintiffs prove of a dismissal a seek contested under Federal Rules is not miscon- number of instances of allegations sought against Accepting the here. far as So duct. true, on a us, must appellees as we claims before York motion, New only 12(b) (6) Escalera the individual officers are Housing Authority, F.2d City exemplary. re- even if may (2d 1970), eventually lief were awarded ‘to appears it dismissed “unless police de- not be named individual each be would plaintiff certainty fendants, satisfy plain- a it not at all would any state systematic no relief entitled to claim for relief tiffs’ support proved higher authority facts could be misbehavior at levels of ” York New Holmes patrolman on the of his claim.’ than of the beat. Authority, Housing only against Indeed, in- for an elementary Although we need now decide the (2d Such question have doubt that in the unusu- little their worth formulas show allegations plaintiffs particular will suc- these standard al case right establishing here, ceed the most especially where useful request, pleas remedy they namely drastic appellees for in- have junctive traditional combined adopt required plea more a com- exotic relief with plaint approved perception mechanism distort one’s tend to remedying processing trict court complaint. of the police If that misconduct. mechanism above, the essence indicated As fail, plaintiffs propose should a still more theory as devel extraordinary measure: district oped complaint is that certain appoint special master as receiv- Depart Buffalo Police members er for the to establish Police systematic engaged pat in “a ment have equitable complaint “a fair and machin- many period tern of conduct” ery investigate provide redress years resulted in has complaints misconduct being subjected color of law state police violence.” deprivation of constitutional to the propriety reme- rights. by no means confine Plaintiffs prayed by plaintiffs, however, dies generalities, however. to such themselves appeal. ques- not the issue on this broadly alleging that defendants After *5 might plaintiffs tion here is whether violence, illegal engaged “acts in of have intimidation, remedy, conceivably have some * * humiliation, and other them, suggested by not or on the plaintiffs four enumerate misconduct” complaint say of “to we cannot face this police abuses of teen varieties they certainty” not be to that will able subj allegedly they to been have against Felicetta and make out a case might de be There follows what ected.7 scribed as part calling for at least Sedita reciting particulars of a bill they request, equitable or some relief paragraphs specific lettered in seventeen course, appropriate that Of relief. of com kinds abuses instances of the assumption is based on plained of. representatives plaintiffs proper of allega- extraordinary specific of It in context this is this the “class” and that expansive appropriate, ques- dif- tions that the more “class” diffuse allegations appel- directed to decide on fuse we are not called tions appeal.8 lees and Felicetta occur. Sedita this part plaintiffs’ sprawling fusing give this nature of of class to members conveyed by plaintiffs’ proper protection complaint per- motion from criminal acts injunction, preliminary petrated persons, re various them quested including be restrained the Buffalo members of Police ”* * * intimidation, humiliating beating, Department. “from plaintiffs’ members class [sic] affecting parties arrest or while in cus course of to this have directed denying plaintiffs’ subsequent tody, from members of our attention to a order telephone right Judge January to make calls to class Henderson entered upon being arrested, 1970, apparently dismissing counsel or families indiscriminately arresting ground members from is not maintainable prob plaintiffs’ argument, During class without reason or oral as class action. panel parties requested to believe that a crime has been able cause counsel for all making committed, charges supplementary discussing from false to submit briefs charges” against plain interlocutory ap- “cover members whether this class, arresting peal properly us, from tiffs’ members before issue plaintiffs’ attempting opinion. part class from I [sic] have of this resolved response request, panel’s exercise their Constitu to the counsel referring plaintiffs-appellants tion of the United have informed by deroga they to members of class intend do not tory, obscene, peal epithets, Judge or racial from re- Henderson’s dismissal of Jan- us, No cases been pleading requirements have referred nor Federal any, has our own research in disclosed Deliberate, purposeful activity Rules. volving appellants’, resulting a claim similar widespread police abuses and systematic purposeful police abuse perhaps rising to the level of de facto many years appar distributed policy appropriate were held to be an ently particular directed identi occasion for such persons. plaintiffs fiable class of cases as and Sehnell. Whether Lankford rely on such cases as Schnell v. pattern can establish this Chicago, (7th 1969), police abuse, and, so, jus- if what proposition “[ujnder for the section tified, initially must be left to the dis- 1983, equitable appropriate relief is in a Moreover, trict court. have indi- governmental situation where officials propriety cated the of the class suit re- have con notice unconstitutional mains to be But determined. we believe duct of their subordinates fail Henderson should have dis- prevent a recurrence of such miscon against appellees missed the suit as Sedi- duct.” Id. at 1086. in that However ta simply and Felicetta some of represented case a class sought the relief seemed far-fetched. right gath photographers news whose Reversed. report massively er and news had been LUMBARD, (concur- Chief during interfered vio brief and ring) : period Party lent when Democratic Chicago agree I Henderson’s convened summer dismissing 1968. A similar case is the known well Mayor case, “Venery Lankford v. Commissioner Police Raids” Gel ston, (4th 1966), reviewable as an “re- where fusing” searching suspects in officers (1), shooting policeman feel it would of a but I fellow *6 attempt Negro at this unwise time to to estab- searched some homes in a area propositions govern night day lish broad law to of of Baltimore and both sought days pre all situations where an is of no course nineteen and with First, justification, episode under that section. confusion tense of generated by may unduly this case color the court described as “a series general flagrant privacy our as to the desira- most ever invasions of stage bility appeals litiga- scrutiny at of this to come a fed when, effect, injunc- practical all court,” also, tion eral See Wheel id. against appellees Goodman, has been F.Supp. (W. tive relief er Second, although requested D.N.C.1969); denied. we John Cottonreader son, supplementary on the F.Supp. (M.D.Ala.1966). and received briefs Judge appealability or- complaint Henderson’s But neither fall does this der, pos- category cases, parties did equitable that not consider where sibility had under inappropriate that review could relief was held basis be (1), agree single 1292(a) and we all this of a com incident misconduct only general allegation relevant is the statute. bined with a re customary of as- are expected. g., Bel without benefit currence could be E. resolving parties a knap Leary, (2d from the sistance Cir. question rea- 1970); Mitchell, For these difficult law. Peek v. (6th sons, more 1970). I would avoid statements Cir. general necessary resolve are than Despite diffuseness broadside and instant case. claims, nature of their we believe recognizes allegations Judge Anderson’s dissent in the generous satisfy where sufficient have uary appellees a class ac- is maintainable intimate no We view on against these tion. action purposes included practical effec- officers were for all missal of the abuse “primarily litigation, as illustrations tively or where terminates the herein, defendants-appellees originally relief scope the sought encouraged con- agree This and condoned.” necessarily I contracted. well-founded, obviously tention cases immediate review that in such justified. virtually Judge accomplish agree plaintiffs would also I Since obtaining nothing by equitable litigation relief does the instant Kaufman that police officers. handful of proposed a standards meet these specific com- unnecessary nature this detailed and dissent, to decide I find response to plaint may well have been dis- other cases or most whether some missing holding circuit parties of at least one the conclusory some an action allegations police miscon- sought should where un- a cause of action failed to state duct appealable. Rights Mitch- Act. Peek v. Judge dis- der the Civil view, my Henderson’s (6th ell, 419 F.2d Mayor Commis- and missal effective- of Police as reasons, sioner conclude that I For these litigation, cer- and ly this Judge terminated appealed from meets both injunctive relief tainly nullified tests, proposed re- and is Anderson’s complaint plainly requested. The theOn viewable sought Buffalo to restrain opin- merits, join Judge I Kaufman’s alleged committing massive ion. systematic violations of constitution- of the named al (dissent- ANDERSON, are sim- of Buffalo who citizens ing) : ilarly Hender- After situated. majority’s deter I dissent from the placed dismissal, plaintiffs were son’s the order from which mination that position: “class” logically untenable appealed is an has Build of Buffalo Inc. anony- named several refusing injunc seeking injunctive police officers mous tion, appealable under 28 U.S.C. § systematic declaratory holding (1).1 (a) conflicts with This rights, and violations of constitutional panel decision another recent grievance adequate ma- of an institution chinery. Education, court, Board of McMillan v. Mayor Without 1970),2 in parties, Police Commissioner appellate extension a needless volves to dissolve had no choice but Henderson *7 jurisdiction an order that exhibits entirely, action, the suit the class dismiss potential liti harm to the none consign individual designed 1292(a) (1) gants was which § specific depriva- separate actions for the alleviate. allegedly they tions suffered. January 22, 1971, Henderson so acted on example appeal is another This by us letter dated inform tendency infrequent of counsel to be 12, 1971, they do March not intend important questions of inattentive to appeal this determination. Associates, pellate jurisdiction. Alart (2 Aptaker, 402 F.2d Cir. Inc. v. 779 The above letter also claims that 1968). allegations against Federal Rules the individual 1292(a) (1) provides: direct be had the Su- review 28 preme Court;” “(a) appeals The courts of shall have jurisdiction appeals from: Tracy Contra, Accord, Robbins, v. infra. Bowling Machines, National Inc. v. First (1) Interlocutory orders of 1960). Bank, (1 See F.2d Cir. 283 39 * * * granting, trict con- courts Agen Berry Housing & Home Finance v. refusing tinuing, modifying, or dissolv- (2 1965), 939, cy, 1 940 n. Cir. 340 F.2d ing injunctions, refusing type assuming deciding to dissolve or without modify injunctions, except appealable. or is where a of order

291 3 denied, 822, 46, of Civil Procedure cannot the source 379 U.S. 85 13 L. S.Ct. appeal, (1964); over this as its re Ed.2d Corp. 33 Stewart-Warner met,4 quirements Westinghouse have not been an Corp., v. Electric 325 F.2d dismissing (2 an action as to 1963), denied, order some 822 Cir. cert. 376 U.S. defendants, 944, at 800, but not all least where (1964); 84 11 S.Ct. L.Ed.2d 767 jointly liable, the defendants are is Vanity Co., Fair Mills v. Eaton T. 234 appealable a final under 28 order (2 Cir.), denied, U.S.C. F.2d 633 cert. 352 U.S. compliance 871, 1291 in absence of 96, (1956); 77 1 S.Ct. L.Ed.2d 76 Education, 54(b).5 Board Rule sup McMillan v. Telechron, Parissi, Inc. v. 197 F.2d 757 ra; (2 Davis v. National Mort 1952); Cutting Appli Cir. Room (2 gage 1963); Corp., 320 F.2d 90 Cir. Corp. Empire Cutting ances v. Machine Hart, (3 435 Co., Jackson v. Cir. Inc., (2 1951); 186 F.2d 997 Cir. Tracy Robbins, 1970); 373 F.2d 13 Industries, Inc., Rains v. Cascade 402 F. 1967); McGee, (4 Feist v. 433 F.2d Cir. (3 1968); 2d 241 Cir. Aero Simmonds 1970); (9 Hamman v. 1015 States, United Cir. Stop cessories Ltd. v. Nut Elastic (9 1968); F.2d The reli Federal Practice 110.09 at Moore’s ¶ Marvel, however, ance on overlooks the ap question 125-129. the sole important present appeal fact pealability identified one completely disposing is not from an order majority, whether the district court’s of a claim but for Chief of dismissal as Po merely an from an order dismiss Department of Relations lice and Human ing single cause to some City of an in Buffalo constitutes defendants. terlocutory denying order policies whether the be meaning interlocutory within (1) require hind § different statute, 1292(a) (1). appeals 28 U.S.C. § treatment dismissal of some de majority appeal- asserts opposed complete fendants as to a dis ability present order settled missal of a cause action or claim for v. Marvel Rare Electric Co. General multiple-claim relief in a case is not of Co., 430, 202, Metals 53 S.Ct. U.S. vintage. recent In United States New (1932), Supreme 77 L.Ed. 408 where York, Co., New Haven & Hartford R. dismissing Court that an order held denied, (2 Cir.), Tri-Con cert. counterclaim States, Corp. tinental Financial v. United single plaintiff, 877, L.Ed. U.S. S.Ct. denying an in- junction. (1960), Accord, 2d be Berlin E. United C. Publi- cations, Inc., (2 Cir.), cert. half of Com- the Interstate Commerce 54(b), F.R.Civ.P., provides: 3. Rule form of decision sub- ject “When more than one claim relief is time before the to revision presented action, adjudicating entry as a all the claim, counterclaim, cross-claim, claims and liabilities third-party claim, multiple par- *8 parties.” or when all the involved, ties are the court direct express- Judge 4. order neither Henderson’s entry judgment the of a final as to one entry expressly ly judgment of directs nor or but fewer more than all the claims just reason for there is no determines that only parties upon express or an deter- delay. just mination that there is no reason delay express Corp., Mortgage for an direction 5. National Davis v. entry judgment. entry supra, appeal for the In the ab- from an of default an jointly judgment against sence of such determination and direc- all some but not tion, any decision, order or other form of for lack liable was dismissed adjudicates designated, opin- compliance 54(b). however with Rule The open expressly fewer than all the claims wheth- ion left par- permits entry 54(b) and liabilities of fewer than all the of final er Rule judgment ties not shall terminate all de- as some but not parties, liability joint. of the claims fendants whose 292 (2 brought

mission, F.2d 914 Cir. We an action 170 seeking appealability that stated that the a declaration New Haven pre agreement repurchase in the stockholders’ suit followed for an forti- Telechron, Parissi, supra, ori railroad and Inc. v. shares between ferred striking portions banking groups was invalid and where an order those certain injunctive seeking performance injunction of of a an competition agreement. held district court en based on unfair was The summary even for the New § tered though injunctive for relief un- A lat a claim reversed. few weeks We Haven. er, however, patent remained the rever der the laws undeter- reconsidered suggestion light that we in mined. sal Significant present appeal is jurisdiction over the for the Govern lacked that, writing panel, for the appeal. that we also con fact At time ment’s distinguished by Judge Friendly involving appeal a series an action sidered an cases, involving patterns the fact same New Haven the stockholders claiming, alia, agreement presented by appeal, in inter banking jurisdiction. Hei we denied the New Haven Goldlawr v. between seeking man, (2 injunc 1959); group invalid and Cir. John was performance of Inc. v. the & Sals Automotive Jones tion agreement. Service Parkway Authority, F. in ten Beach 267 was State Beverage counts, five, (2 1959); 2d and counts six and seven Cott set Cir. Dry Ginger Ale, support Corp. F. forth three theories Canada 1957); against per (2 2d v. Ameri claim for Porter Cir. (2 agreement. Distilling Co., Inc., can formance district Moore, pursuant 1946); court entered an order F.2d to Rule Cir. Studer 54(b) dismissing (2 1946). Although count six of those cases the com plaint distinguishable applica and an was taken. held are We because bility argued, improperly 1292(a) (1) was invoked was not Judge final, Friendly because the action not that a result due to indicated liability multiple-defendant the fact that other theories of case was reached open, controlling multiple-claim remained appealable but in a case. order was 1292(a) (1) an 276 at F.2d injunction. refusing Judge from a dissented denial Clark at 545. The contention that there was Rehearing Application of an for a injunction no refusal of an banc, argued F.2d at he grounds granting injunction re invoked, 1292(a) (1) could be before § rejected,6 mained undetermined was completely dispose the order must of a authority we cited as earlier decisions claim for relief or cause action and holding in a suit re merely theory dispose sup of one denying plaintiff’s lief an order motion port Disagree requested relief. summary judgment was an order re ing sharply Friendly fusing 1292(a) (1) under § al., supra, applicability et of Goldlawr though plaintiff might even later argued that Clark effect of prevail at trial. Federal Co. v. Glass majority’s decision was to overrule Loshin, 1954); Ray F.2d cases, at those because un reasoning majority’s Corp. lite der the Electric Electric v. Noma 6. The Moore’s appealable disregards 232-234. adjudicates commentator order of the district rejection Federal a claim for of this emphasis Practice in a § argument apparently multiple injunctive 1292(a) court ¶ 54.30 claim case least one (1). relief is ^[2] fully at junctive relief. or cause Clark’s erative facts right, * * * supra, involved analysis, Clark ” of action not giving defined the claim F.2d at two Id. Telechron, *9 * * * legal rise to an 551. 550. Under terms Inc. v. claims for enforceable for relief theories. Parissi, “op- in- children, handicapped uncon- to declare sustained un- over them should have been pupil 1292(a) per (1), presumably limitation stitutional the $2000 der § private ground spent dispose to for the com- on amounts the failure children, teaching brain-damaged pletely is not fatal of § a claim for relief Law, 1292(a) (1) jurisdiction. McKin- New York Education to § ney’s Consol.Laws, c. 16. The New Haven case the extent To permanent requested temporary in- thought, does, for stand Clark junctions prohibit defend- State disregard requirement general enforcing the limitation and ants from completely dispose of a the order injunctions requiring City the three de- for relief before claim provide adequate fendants for classes (1), vital- 1292(a) the continued under § handicapped pupils. The district court holding ity is rendered doubtful of that request declined for a three- overruling proposition our ground judge on district court placed primary re- Friendly constitutional claim Frankel, Chappell v. & Co. liance. defendants was insubstantial State (en banc), (2 1966) dismissed the action As is them. Loshin, Federal Glass Co. overruled present appeal, the case in the no order Corp. No- supra, Raylite Electric 54(b). pursuant entered was supra, and held that ma Electric 1292(a) (1) court held that The did summary plaintiffs’ motion denial provide jurisdiction appeal, not over the seeking in an action interlocutory appeal as the was not an appealable under is not and that because a Rule referring New Specifically to the entered, not was was stated, among others, case, “as Haven pendency final continued due with the inconsistent our result here is the action defendants. cases we reached the above result F.2d at did assume 1148. reversing forth therein the rule set jurisdiction, however, to review the order ” * * * also F.2d at 200. See denying three-judge as one court. Railway Quirke Norfolk & Western Co., persuaded I am not charac- terization of the order McMillan as Moreover, remains whatever life still non-interlocutory sound,8 but the re- Haven rule in the New established reached sult there consistent light interpreted Mc- case must be majority’s If no herein. Education, supra, Millan v. Board McMillan existed court, Judge panel another of this where the of the State defend- severance Friendly writing opinion, reached precluded any possibility hav- ants that announced result in conflict with establishing ing the State statute There, majority. a civil here limitation declared unconstitution- $2000 (1) brought al, clearly, jurisdiction de- then must be York of New the Board of Education present appeal. Compel- nied over the (2) City’s Superintendent City, ling support policy a result. reasons such Schools, City’s Edu- (3) Director of liability Physically Handicapped, the Chief cation Department of Human (4) of Police and the the New York State derivative of the Relations of Buffalo is State Commis- Education liability Education, officers. three the individual sioner of behalf disposing relief. unde- of one claim action remains The fact consistently treated as The latter order is termined would ns to other defendants pear Federal order. 6 Moore’s no less interlocu- to render the order tory pendency [2], at than Practice 54.30 ¶ of other undeter- completely mined claims renders an order *10 294

Dismissing poses as to these three of these defendants the action dismissal effectively litigation not affect action as defendants did terminates defendants, remaining no ar- to the fully any potential it in nullifies gument presented has been junctive by contracting scope relief quality of the relief missal affected sought. injunctive originally relief such, plaintiffs. prayed As Spangler United F.2d 1242 v. 415 distinguishable present appeal (9 approaches Cir. Both are fa sustaining cases, Marvel, ju- like those analytical concepts; miliar the former sep- of a over the dismissal risdiction has been utilized in this deter injunctive in a relief arate action for mine whether the dismissal of the class case, multiple there claim aspect appealable of a operated determination district court’s doctrine,10 the collateral order adjudication complete as a of the claim. Transporta Caceres v. International Air characterized, properly The order was Association, (2 tion 422 F.2d 141 Cir. relief, therefore, a denial of 1970); City of New York Interna v. completely because the court’s action Pipe Corp., tional and Ceramics 410 Here, foreclosed that avenue of relief. (2 1969); Cir. Eisen Car v. however, merely the order held if Jacquelin, (2 lisle & 370 F.2d 119 Cir. any injunctive ultimately ob- 1966), denied, 1035, cert. 386 87 U.S. tained, may it not run 1487, (1967); S.Ct. 18 L.Ed.2d 598 pellees herein. Weingartner Company v. Union Oil California, (9 1970), 431 F.2d 26 Cir. Moreover, important policy consid the latter has been utilized points up eration the difference between Fourth Circuit to determine whether the multiple-claim multiple-defend same 1292 § case, because, latter, ant where the (a) as a denial of relief. liability of the defendants is derivative Trustees, Brunson v. Board of joint, adjudication piecemeal (4 1962), denied, 107 cert. 373 U.S. appeals involving some but not all the 933, 1538, 83 S.Ct. 10 L.Ed.2d 690 may operate defendants to determine is (1963); Note, Interlocutory Appeal see sues common to all the defendants with Striking From Orders Class Action Alle corresponding opportunity out a for all gations, 1292, 70 Colum.L.Rev. 1297 participate in that de (1970). approach ques Such to the Zangardi Tobriner, termination. v. tion appealability of orders like 350, U.S.App.D.C. (1964); 330 F.2d 224 provide one before us would University, Robbin American 117 U.S. flexibility deny needed App.D.C. 351, (1964). Un case, where the as in this will der it these circumstances is unwise to injury plaintiffs by cause serious to the meaning 1292(a) (1) stretch the effectively terminating include as the denial of an the action but would, merely hand, deprive order which re the other holds that remaining quested injunctive may opportunity defendants of the not run to be heard on some of issues that the defendants.9 Rath work a estoppel er, jurisdiction collateral them. should be unless effect denied practical pur- Zangardi Tobriner, it can be supra; shown that for all Robbin v. (1) provides 1965), aff’d, 23, Because § a limit- 385 U.S. 87 S.Ct. exception general policy against 193, (1966). ed to the 17 L.Ed.2d also See piecemeal appeals expressed by Cox, 471, 478, the rule Goldstein U.S. only 671, (1970). final orders of district courts S.Ct. L.Ed.2d 663 subject review, 1291, should be construed some strictness. 10. Cohen v. Beneficial Industrial Loan Association, Switzerland v. E. Cheese Inc. U.S. S.Ct. Market, Inc., Horne’s L.Ed. 1528 *11 University, supra. Tracy In American Robbins, ap supra, the Fourth LEDERER, Albert Lewis Petitioner- test, Spang parently adopted this and in Appellant, States, supra, the Ninth ler v. United use made of it. Circuit also TEHAN, County, Sheriff, Dan Hamilton Superintend Ohio, Curen, and C. E. Van clear, however, It is that the district ent, Institution, Lebanon Correctional appellees toas here- court’s dismissal Respondents-Appellees. did not knell” sound “death No. 20567. pending remained action. The action Appeals, United States Court officers, and com- the individual Sixth Circuit.

plete have had relief could been April them. supplemental papers, appel

In their argue court’s

lants district sub

sequent action as individual offi uncertainty disposes cers sur

rounding jurisdiction over the our

and makes clear that 54(b). As stated earli

be based on Rule

er, however, the court no district made

attempt to the order in enter accordance 54(b), subsequent

with Rule determining no moment in

action jurisdic 1292(a) (1) provides

whether § order,

tion. its latest the district organizational plain severed properly representative

tiffs as aspect

dismissed the class action complaint, letting stand the actions

individual the individ ual officers for violations their civil

rights. presents This order itself seri questions appealability, Eisen

ous supra, Jaequelin,

Carlisle & no co argument presented

herent has been

explains subsequent order how this can appealability

affect the of the order now

before us. appeal for

I would dismiss the lack of

statutory jurisdiction. order,

1 1. Henderson's second entered tion to dismiss as January 22, 1971, however, point does, Police and Human Chief of undesirability up reviewing, granted this class Relations was stage, order, complaint alone, aspect the earlier of the paragraph last he indicates state claim as the order failure to unraveling purports individual now do. such prosecute free individual actions as exists would better await confusion posture the individual and their case officers when before time responsible superiors. permits en- As there no this court a treatment opinion written as the first tire case. suggests latter determination the mo-