Turner v. Air Transport Lodge 1894 of Intern. Ass'n of Machinists and Aerospace Workers, AFL-CIO, AFL-CIO

• Decision Date: 20 October 1978
• Docket Number: D,No. 89,AFL-CI,AFL-CIO,89
• Citation: 585 F.2d 1180
• Parties: 99 L.R.R.M. (BNA) 3049, 84 Lab.Cas. P 10,896 William TURNER, Plaintiff-Appellee, v. AIR TRANSPORT LODGE 1894 OF INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,, and International Association of Machinists and Aerospace Workers, , Defendants- Appellants. ocket 78-7212.
• Court: U.S. Court of Appeals — Second Circuit

Page 1180

585 F.2d 1180

99 L.R.R.M. (BNA) 3049, 84 Lab.Cas. P 10,896

William TURNER, Plaintiff-Appellee, v. AIR TRANSPORT LODGE 1894 OF INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, and International Association of Machinists and Aerospace Workers AFL-CIO Defendants- Appellants.

No. 89, Docket 78-7212.

United States Court of Appeals Second Circuit.

Argued Sept. 25, 1978.

Decided Oct. 20, 1978.

Kevin P. Quill, Long Island City, N. Y., for defendants-appellants.

Burton H. Hall, New York City, for plaintiff-appellee.

Before WATERMAN and MULLIGAN, Circuit Judges and WYATT, District Judge. ^*

PER CURIAM:

This is an appeal by defendant unions "from the memorandum order entered in this action on March 31, 1978." The quotation is from the notice of appeal, which describes that order as having "directed reinstatement (of plaintiff) to union membership and which declared Article L § 3 of the International Association of Machinists & Aerospace Workers Constitution void."

Plaintiff Turner was a member of defendant Air Transport Lodge 1894 (the "Local union") which was affiliated with defendant International Association of Machinists and Aerospace Workers (the "International union"). He was expelled from the Local union on January 28, 1976.

This action was commenced in the United States District Court for the Eastern District of New York. It was brought under the Labor-Management Reporting and Disclosure Act of 1959 (29 U.S.C. § 401 and following; "LMRDA"). The relief prayed for was: (a) a permanent injunction against enforcing the expulsion of Turner, (b) a declaratory judgment that the expulsion of Turner is void, (c) a permanent injunction against infringement by defendants of the rights of Turner under LMRDA, (d) a declaratory judgment that Article L § 3 of the constitution of the International union is void to the extent specified, and (e) for attorney's fees, etc.

After answer, plaintiff moved for entry of judgment for the relief demanded in the complaint. The motion was said to be under Fed.R.Civ.P. 12(c), "judgment on the pleadings."

Defendants then moved for summary judgment.

The two motions were heard by Judge Costantino, who on March 31, 1978 filed the "memorandum and order" from which this appeal is taken.

We have an initial difficulty with this appeal because we cannot tell from the record precisely what was the decision below. The terms of the decision have never been spelled out in a judgment nor is there a "separate document" containing a "judgment", as required by Fed.R.Civ.P. 58.

We recognize that the separate document requirement of Rule 58 can be waived and that absence of a judgment set forth in a separate document does not deprive this Court of jurisdiction of this appeal. Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). Until the Supreme Court thus recently spoke, most of the courts of appeals (differing with this Court) had concluded that a judgment on a separate document was a prerequisite to appellate jurisdiction. The decisions are cited in the Supreme Court's opinion (435 U.S. at 383 n.2, 98 S.Ct. at 1119).

While the separate document requirement may now be waived, we would not encourage the practice. We suggest that, where the District Court makes a decision intended to be "final" (28 U.S.C. § 1291), the better procedure is to set forth the decision in a separate document called a judgment (Fed.R.Civ.P. 58).

In the case at...