Citizens Accord v. Town of Rochester

• Decision Date: 01 August 2000
• Docket Number: Docket No. 00-7693
• Citation: 235 F.3d 126
• Parties: (2nd Cir. 2000) CITIZENS ACCORD, INC., Plaintiff-Counterclaim-Defendant-Appellant, v. THE TOWN OF ROCHESTER, New York; TOWN BOARD of the Town of Rochester; PLANNING BOARD of the Town of Rochester; ROBERT BAKER individually and in his capacity as Supervisor; DOUGLAS DYMOND individually and in his capacity as Code Enforcement Officer; WILLIAM CARROLL individually and in his capacity as Town Board Member; HAROLD LIPTON individually and in his capacity as Town Board Member; RONALD SANTOSKY individually and in his capacity as Town Board Member; CARL EDWARDS individually and in his capacity as Town Board Member; RICHARD GRAY individually and in his capacity as Town Board Member; LEON SMITH individually and in his capacity as Town Board Member; JAMIE BEARDSLEY individually and in his capacity as Planning Board Member; SHANE RICKS individually and in his capacity as Planning Board Member; WILLIAM DEGRAW individually and in his capacity as Planning Board Member; SUSANNE SAHLER individually and in her capacity as Planning Board Member; BRIAN DRABKIN individually and in his capacity as Planning Board Member; RICHARD BOLTER individually and in his capacity as Planning Board Member; MELVYN TAPPER individually and in his capacity as Planning Board Member, Defendants-Appellees, TWIN TRACK PROMOTIONS, INC., Defendant-Counterclaimant-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 126

235 F.3d 126 (2nd Cir. 2000)

CITIZENS ACCORD, INC., Plaintiff-Counterclaim-Defendant-Appellant, v. THE TOWN OF ROCHESTER, New York; TOWN BOARD of the Town of Rochester; PLANNING BOARD of the Town of Rochester; ROBERT BAKER individually and in his capacity as Supervisor; DOUGLAS DYMOND individually and in his capacity as Code Enforcement Officer; WILLIAM CARROLL individually and in his capacity as Town Board Member; HAROLD LIPTON individually and in his capacity as Town Board Member; RONALD SANTOSKY individually and in his capacity

as Town Board Member; CARL EDWARDS individually and in his capacity as Town Board Member; RICHARD GRAY individually and in his capacity as Town Board Member; LEON SMITH individually and in his capacity as Town Board Member; JAMIE BEARDSLEY individually and in his capacity as Planning Board Member; SHANE RICKS individually and in his capacity as Planning Board Member; WILLIAM DEGRAW individually and in his capacity as Planning Board Member; SUSANNE SAHLER individually and in her capacity as Planning Board Member; BRIAN DRABKIN individually and in his capacity as Planning Board Member; RICHARD BOLTER individually and in his capacity as Planning Board Member; MELVYN TAPPER individually and in his capacity as Planning Board Member, Defendants-Appellees,

TWIN TRACK PROMOTIONS, INC., Defendant-Counterclaimant-Appellee.

Docket No. 00-7693

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: December 7, 2000

Decided: December 18, 2000

Appeal from an order of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, dismissing complaint alleging violations of due process and equal protection.

Dismissed for lack of appellate jurisdiction.

GARY T. KELDER, Manlius, New York (Kelder, Kane & Associates, Manlius, New York, on the brief), for Plaintiff-Counterclaim-Defendant-Appellant.

TERRY RICE, Suffern, New York (Rice & Amon, Suffern, New York, on the brief), for Defendants-Appellees.

KENNETH J. MCGUIRE JR., Troy, New York, for Defendant-Counterclaimant- Appellee.

Before: OAKES, KEARSE, and WINTER, Circuit Judges.

Per Curiam:

Plaintiff Citizens Accord, Inc. ("CAI"), has filed a notice of appeal seeking review of an order of the United States District Court for the Northern District of New York, Thomas J. McAvoy, Judge, dismissing its complaint alleging that defendants Twin Track Promotions, Inc. ("Twin Track"), and various municipal entities violated CAI's rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the Constitution in connection with permits allowing Twin Track to operate an auto race track. Twin Tracks having interposed counterclaims that are still pending in the district court, we dismiss the appeal for lack of appellate jurisdiction.

Where a challenged decision of the district court does not relate to an injunction, see 28 U.S.C. 1292(a)(1), and is not an interlocutory order as to which the court of appeals has granted leave to appeal, see id. §1292(b), the court of appeals lacks jurisdiction to hear an appeal 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 ...."). A "final" judgment or order is one that conclusively determines the pending claims of all the parties to the litigation, leaving nothing for the court to do but execute its decision. See, e.g., Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). An order that adjudicates fewer than all of the claims remaining in the action, or adjudicates the rights and liabilities of fewer than all of the remaining parties, is not a final order unless the court directs the entry of a final judgment as to the dismissed claims or parties "upon an express determination that there is no just reason for delay." Fed. R. Civ. P. 54(b). A judgment that disposes only of the complaint, while leaving a counterclaim pending, is not a final judgment. See, e.g., Doyle v. Kamenkowitz, 114 F.3d 371, 373 (2d Cir. 1997).

In the present...