11-4592-cv
Carrier v. Bradley



                               UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or
after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and
this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a
party must cite either the Federal Appendix or an electronic database (with the notation “summary
order”). A party citing a summary order must serve a copy of it on any party not represented by
counsel.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
the 8th day of November, two thousand twelve.

PRESENT:

                     PIERRE N. LEVAL,
                     JOSÉ A. CABRANES,
                     ROBERT D. SACK,

                                    Circuit Judges.

_____________________________________

JOSEPH CARRIER, et al.,

                           Plaintiffs-Appellants,

                     v.                                                 No. 11-4592-cv

ADAM BRADLEY, et al.,

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFFS-APPELLANTS:                                Donald P. Henry, White Plains, NY.

FOR DEFENDANTS-APPELLEES:                                 Richard K. Zuckerman, Matthew J. Mehnert,
                                                          Lamb & Barnosky, LLP, Melville, NY; John
                                                          M. Flannery, Peter A. Meisels, Lalit K.


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                                                                    Loomba, Wilson Elser Moskowitz Edelman &
                                                                    Dicker, White Plains, NY.

       Appeal from an order dated September 30, 2011 of the United States District Court for the
Southern District of New York (Cathy Seibel, Judge).

        UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of appellate
jurisdiction.

         On May 24, 2010, the City of White Plains, New York, passed an ordinance providing that
certain fire fighters “shall continue to be entitled . . . to have the city contribute eighty-five percent
of the premium charged by the New York State Empire Health Insurance Program toward the cost
of providing individual or family coverage under any of the health insurance programs the city
makes available to its employees.” Joint App’x 83. About a month later, unions representing active
and retired fire fighters filed suit in the Southern District of New York against the City of White
Plains and various city officials, alleging nine causes of action for purported violations of their
constitutional rights, breach of contract, violation of New York Civil Service Law, and relief under
New York Civil Practice Law and Rules Article 78. The defendants then moved to dismiss several
of the plaintiffs’ claims. As relevant here, the District Court (in an order dated September 30, 2011)
granted the defendants’ motion to dismiss all claims asserted on behalf of active and recently retired
fire fighters because those claims were not yet ripe for review. The active and recently retired fire
fighters then appealed that order, arguing that the District Court erred in finding their claims not
justiciable. We assume the parties’ familiarity with the facts and issues in this case.

         On appeal, the defendants argue that we lack appellate jurisdiction and therefore must
dismiss this appeal without considering the merits. We agree. As relevant here, our appellate
jurisdiction is limited to review of final judgments, see 28 U.S.C. § 1291,1 clarified by Rule 54(b) of
the Federal Rules of Civil Procedure.2 We have explained:


128 U.S.C. § 1291 provides, in relevant part: “The courts of appeals . . . shall have jurisdiction of appeals from all final
decisions of the district courts of the United States.”
2   Rule 54(b) provides:

           When an action presents more than one claim for relief—whether as a claim, counterclaim,
           crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of
           a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly
           determines that there is no just reason for delay. Otherwise, any order or other decision, however
           designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the
           parties does not end the action as to any of the claims or parties and may be revised at any time before
           the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.

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        Rule 54(b) of the Federal Rules of Civil Procedure sets out the requirements for the
        entry of a partial final judgment in multi-claim or multi-party actions. A final
        judgment may be entered as to some—but fewer than all—claims or parties “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). The Rule makes
        clear that if the District Court does not both direct entry of judgment and expressly
        determine that there is no just reason for delay, then its order or decision is not final,
        whether or not it is labeled a “judgment.”

HBE Leasing Corp. v. Frank, 48 F.3d 623, 631 (2d Cir. 1995). “The requirement of an express
determination cannot be met if the District Court does not make clear that such determination is for
the purpose of certifying a final judgment [under Rule 54(b)].” Id.

         In this case, the District Court granted the defendants’ motion to dismiss several claims, but
“there is simply no evidence that the District Court intended its ruling . . . to constitute a Rule 54(b)
certification.” Id. Nor is the ruling a collateral order under Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541, 546–47 (1949). Accordingly, we must dismiss this appeal for lack of jurisdiction.
Should the appellants so choose, they may file a motion in the District Court requesting the
appropriate certification under Rule 54(b) and, if granted, reinitiate their appeal. Cf. In re Chateaugay
Corp., 922 F.2d 86, 91–92 (2d Cir. 1990).

                                           CONCLUSION

        For the foregoing reasons, this appeal is DISMISSED for lack of appellate jurisdiction.



                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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