618 F.2d 226 (2nd Cir. 1980), 377, Cullen v. Margiotta

Docket Nº:377, Docket 79-7362.
Citation:618 F.2d 226
Party Name:Lorraine C. CULLEN et al., Plaintiffs-Appellants, v. Joseph P. MARGIOTTA, Jr., et al., Defendants-Appellees.
Case Date:March 25, 1980
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 226

618 F.2d 226 (2nd Cir. 1980)

Lorraine C. CULLEN et al., Plaintiffs-Appellants,


Joseph P. MARGIOTTA, Jr., et al., Defendants-Appellees.

No. 377, Docket 79-7362.

United States Court of Appeals, Second Circuit

March 25, 1980

Argued Dec. 17, 1979.

Burt Neuborne and James H. Stark, New York City, for plaintiffs-appellants.

William S. Norden, Bureau Chief, Bureau of Law & Appeals, Mineola, N. Y. (Edward G. McCabe, County Atty., of Nassau County, Mineola, N. Y., of counsel), for Nassau County, defendants-appellees.

Ruth C. Balkin, Mineola, N. Y. (John Joseph Sutter, Mineola, N. Y., of counsel), for Krause, Woolnough, Livingston, Landman, Haff, Udell, McMullen, Hansen, Cosenza and Phears, defendants-appellees.

Page 227

Daniel R. McCarthy, Deputy Town Atty., Hempstead, N. Y. (W. Kenneth Chave, Jr., Town Atty., Town of Hempstead, Hempstead, N. Y., of counsel), for Town of Hempstead, appellees.

Before KAUFMAN, Chief Judge, SMITH [*] and TIMBERS, Circuit Judges.


This is an appeal from an order of the United States District Court for the Eastern District of New York, Jacob Mishler, Chief Judge, dismissing four of plaintiffs' six causes of action. We hold that certification of the order as a final judgment under Fed.R.Civ.P. 54(b) was improper and dismiss the appeal for lack of jurisdiction.

This appeal arises from a class action brought by employees of Nassau County and its municipalities against the county, the Town of Hempstead, the Republican Committees of Nassau County and Hempstead, and various government and Republican Party officials of the county and the town. Plaintiffs contend that since 1971, defendants have routinely extorted political contributions to the Republican Party as a condition of employment or promotion in civil service jobs.

Plaintiffs assert causes of action under the first and fourteenth amendments to the Constitution; the Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3); the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et seq.; and N.Y.Civil Service Law § 107. They seek $8.65 million in alleged damages 1 as well as declaratory and injunctive relief.

Judge Mishler dismissed all of plaintiffs' causes of action except those based on 42 U.S.C. §§ 1983 and 1985(3). The judge ruled that Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979) (en banc ), precluded a direct cause of action under the first amendment when relief was available under 42 U.S.C. § 1983. He dismissed the RICO claim on the ground that plaintiffs had failed to allege a sufficient connection between the challenged activities and interstate commerce. 2 Finally, he declined to exercise pendent jurisdiction over the claim based on N.Y.Civil Service Law § 107 because he deemed it "both unwise and unnecessary to...

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