Hageman v. City Investing Co., 1090

• Decision Date: 29 June 1988
• Docket Number: No. 1090,D,1090
• Citation: 851 F.2d 69
• Parties: 47 Empl. Prac. Dec. P 38,152, 11 Fed.R.Serv.3d 34 Arthur G. HAGEMAN, Plaintiff-Appellant, v. CITY INVESTING COMPANY and the Home Insurance Company, et al., Defendants- Appellees. ocket 88-7120.
• Court: U.S. Court of Appeals — Second Circuit

Page 69

851 F.2d 69

47 Empl. Prac. Dec. P 38,152, 11 Fed.R.Serv.3d 34

Arthur G. HAGEMAN, Plaintiff-Appellant, v. CITY INVESTING COMPANY and the Home Insurance Company, et al., Defendants- Appellees.

No. 1090, Docket 88-7120.

United States Court of Appeals Second Circuit.

Argued May 19, 1988.

Decided June 29, 1988.

Arthur G. Hageman, New York City, pro se.

Cynthia A. Epstein, New York City (Martin D. Heyert, Kelley Drye & Warren, New Before LUMBARD, MESKILL and WINTER, Circuit Judges.

York City, of counsel), for defendants-appellees.

MESKILL, Circuit Judge:

Plaintiff-appellant Arthur G. Hageman, pro se, brought this appeal in a consolidated action from an order of the United States District Court for the Southern District of New York, Broderick, J., granting in part and denying in part the motion for dismissal and/or summary judgment of defendants-appellees City Investing Co. and the Home Insurance Co., et al. We hold that the order, which did not dispose of all of the claims in the consolidated action, is not a final, appealable decision. Considering that there is no certification pursuant to Fed.R.Civ.P. 54(b), we grant defendants' motion to dismiss the appeal for lack of appellate jurisdiction. However, we deny the defendants' request for sanctions, costs and attorney's fees.

BACKGROUND

On January 4, 1982, Home Insurance Co. (Home) discharged Hageman, who had worked in Home's investment department from May 7, 1973. On December 9, 1983, Hageman filed an action in federal court (83 Civ. 8956) alleging that he was discharged in violation of the Age Discrimination in Employment Act, 29 U.S.C. Sec. 621 et seq. (1982 & Supp. III 1985) (ADEA). Subsequently, on October 25, 1984, plaintiff brought another action in federal court (84 Civ. 7709), alleging eight causes of action against Home and several other defendants, including Donald G. Smith, who was in charge of the investment department at Home from which Hageman was discharged. In the second action, Hageman claimed that by discharging him, the defendants had violated the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sec. 1001 et seq. (1982 & Supp. III 1985) (ERISA); 42 U.S.C. Secs. 1985(2), 1985(3) and 1986 (1982); and the Fifth and Fourteenth Amendments. Hageman also alleged violations of state law for abusive discharge and breach of an implied contract.

On April 30, 1985, these two actions were consolidated by the United States District Court for the Southern District of New York, Brieant, C.J., and later reassigned to Judge Broderick. Defendants moved for dismissal and/or summary judgment with respect to all of plaintiff's claims. On January 20, 1988, the district court (1) granted defendants' motion for summary judgment with respect to the ADEA claims and dismissed the complaint in 82 Civ. 8956, (2) denied defendants' motion for summary judgment with respect to plaintiff's ERISA claim, (3) granted defendants' motion to dismiss plaintiff's claims under the Fifth and Fourteenth Amendments, 42 U.S.C. Secs. 1985(2), 1985(3) and 1986, and state law, and (4) dismissed all of the defendants except Home and Donald Smith. Plaintiff's ERISA claim therefore remains to be tried.

The district court did not direct entry of final judgment with respect to any of the claims that were dismissed, and no Fed.R.Civ.P. 54(b) certification was obtained. Nonetheless, on February 4, 1988, Hageman, pro se, filed a notice of appeal from the court's order. On February 11, 1988, the district court issued an order reopening Hageman's first action (83 Civ. 8956), in order to consolidate it with the second pending action. On the same date, defendants advised Hageman by letter that his appeal was premature because there was no final judgment, and threatened to file a motion to dismiss the appeal and have sanctions imposed against Hageman if he did not stipulate to the withdrawal of his appeal.

Hageman did not agree to so stipulate, and defendants then filed a motion before this Court to dismiss the appeal and to impose sanctions against Hageman for his refusal to stipulate to the withdrawal of the appeal.

DISCUSSION

Under 28 U.S.C. Sec. 1291 (1982), we have jurisdiction to consider appeals "from all final decisions of the district courts of the United States." In an action involving more than one claim for relief, a district We have not previously considered this precise question. Several other circuits have decided it, however, although they have come to differing conclusions. Two circuits have held that a judgment in one portion of a consolidated action is final and appealable, even if other consolidated claims are still pending. See Kraft, Inc. v. Local Union 327, Teamsters, 683 F.2d 131, 133 (6th Cir.1982); In re Massachusetts Helicopter Airlines, Inc., 469 F.2d 439, 441-42 (1st Cir.1972). Two other circuits have adopted an absolute rule that a judgment in a consolidated action that does not dispose of all of the claims is not a final, appealable judgment. See Trinity Broadcasting Corp. v. Eller, 827 F.2d 673, 675 (10th Cir.1987) (per curiam), cert. denied, --- U.S. ----, 108 S.Ct. 2883, 101 L.Ed.2d 918 (1988); Huene v. United States, 743 F.2d 703, 705 (9th Cir.1984). Yet other circuits have adopted a flexible approach, examining the type of consolidation and the relationship between the consolidated actions in order to determine whether the actions could be appealed separately absent Rule 54(b) certification. See Ivanov-McPhee v. Washington National Insurance Co., 719 F.2d 927, 929-30 (7th Cir.1983); Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir.1982); Jones v. Den Norske Amerikalinje A/S, 451 F.2d 985, 986-87 (3d Cir.1971).

                court can direct the entry of a final judgment as to fewer than all of the claims or parties in a case "only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment."    Fed.R.Civ.P. 54(b).  In this case, we must determine whether, in a consolidated action, a judgment that does not dispose of all claims is a final decision within the purview of section 1291 absent certification under Fed.R.Civ.P. 54(b)
                

We agree with the Ninth and Tenth Circuits that there are certain benefits to adopting a uniform rule, rather than a more flexible approach. See Trinity, 827 F.2d at 675; Huene, 743 F.2d at 704-05. For example, we recognize that it is desirable to provide litigants with the clearest possible guidance concerning when a judgment is final so that premature appeals are avoided and opportunities to file timely notices of appeal are preserved. In addition, we agree that a district court is better able than an appellate court to decide whether an interim appeal in a consolidated...