Build of Buffalo, Inc. v. Frank A. Sedita, as Mayor and Chief Executive of the City of Buffalo

441 F.2d 284, 14 Fed. R. Serv. 2d 1471, 1971 U.S. App. LEXIS 10759
Court of Appeals for the Second Circuit·Decided April 13, 1971·No. 484, Docket 34886·Published·Cited by 74 cases

Opinions

IRVING R. KAUFMAN, Circuit Judge:

This interlocutory appeal reaches us in an awkward procedural posture. On March 13, 1970, Judge Henderson dismissed plaintiffs’ omnibus civil rights action (brought under 42 U.S.C. §§ 1981-1983, 1986, 1988-1990) as to three of many defendants for failure to state an actionable claim, F.R.Civ.P. 12(b) (6). The initial question is whether the order is appealable because it is undoubtedly not a final order, 28 U.S.C. § 1291, or whether it is maintainable nonetheless pursuant to 28 U.S.C. § 1292(a) (1) as an interlocutory order “refusing” an injunction. Since we are of the view that the latter statute applies we reach the merits of the appeal and hold that the partial dismissal was improper.

I.

That the order of dismissal was not a final one is conclusively determined by reference to F.R.Civ.P. 54(b). Plaintiffs include numerous individuals who claim that defendants have violated rights guaranteed to them by the Constitution, as well as nine civic and other private organizations.1 Suing individually and as representatives of a rather amorphous class of “others similarly situated,”2 they seek monetary damages and a variety of equitable relief, including some quite drastic remedies, as will appear. The three defendants as to whom the complaint has been dismissed are Frank A. Sedita, the Mayor and Chief Executive of the City of Buffalo, New York; the Commissioner of the Buffalo Police Department, Frank Felicetta; and the Department of Human Relations of Buffalo. Plaintiffs here appeal from the dismissal as to Mayor Sedita and Commissioner Felicetta. In addition, the complaint joins as defendants various members of the Buffalo Police Department, some named and others anonymous, who have allegedly engaged in “a systematic pattern of conduct resulting in numerous, separate and distinct violations of the rights, privileges, and immunities” of plaintiffs and the class they seek to represent. Appellees Sedita and Felicetta are said by plaintiffs to “have condoned or encouraged,” or to have “directed” or “permitted” such conduct. Also (and alternatively) the Mayor and Police Commissioner are charged with having so “lost control” [286] over some of the Buffalo police “as to make effective law enforcement impossible” and also with having failed to respond in any manner to “numerous specific complaints” by plaintiffs and others of police conduct in violation of the federal Constitution, New York law, and Police Department Regulations.

The dismissal as to appellees of course did not affect the continuing vitality of the action against the other defendants, the individual police officers. Because the district court did not direct the entry of a final judgment against appellees or determine that there was “no just reason for delay” prior to entering a final order, his order granting defendants’ Rule 12(b) (6) motion is not appealable under 28 U.S.C. § 1291 or Rule 54(b). Nor did the district court accompany its order with a statement as to the desirability of an interlocutory appeal required if plaintiffs were to attempt to proceed under 28 U.S.C. § 1292 (b).

Plaintiffs’ complaint, however, included several prayers for permanent injunctive relief against all defendants. Moreover, on March 3, 1970, plaintiffs added a motion for a preliminary injunction to restrain defendants pendente lite from committing a formidable list of specific kinds of abusive police practices. By granting the motion of the Mayor, the Police Commissioner and the Department of Human Relations, to dismiss,3 the district court effectively denied at the same time plaintiffs’ motion for a preliminary injunction as against those defendants.4 The resultant denial of an injunction is appealable under 28 U.S.C. § 1292(a) (1). The reasoning and decision in General Electric Co. v. Marvel Rare Metals Co., 287 U.S. 430, 53 S.Ct. 202, 77 L.Ed. 408 (1932)5 is persuasive and, in this context, is also authority that would be difficult to ignore:

But by their motion to dismiss, plaintiffs themselves brought on for hearing the very question that, among others, would have been presented to the court upon formal application for an interlocutory injunction. That is, whether the allegations of the answer are sufficient to constitute a cause of action for an injunction. And the court necessarily decided that upon the facts alleged in the counterclaim defendants were not entitled to an injunction. It cannot be said * * * that the dismissal did not deny to defendants the protection of the injunction prayed in their answer. Id. at 433, 53 S.Ct. at 203.

Judge Henderson’s dismissal for failure to state a claim was not a mere practice order “controlling the sequence in which portions of the case would be tried,” Spangler v. United States, 415 F.2d 1242, 1248 (9th Cir. 1969),6 or simply consigning plaintiffs’ claim against appellees to a separate action as an exercise of the court’s control over the scope [287] of the litigation. See Stewart-Warner Corp. v. Westinghouse Electric Corp., 325 F.2d 822, 829 (2d Cir. 1963) (Friendly, J., dissenting), cert. denied, 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964). Rather, the district court’s determination that plaintiffs were entitled to no relief under federal law, including preliminary relief, was as decisive to plaintiffs as would have been a refusal to grant a preliminary injunction on the grounds that plaintiffs failed to demonstrate either likelihood of ultimate success or irreparable injury.

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Build of Buffalo, Inc. v. Frank A. Sedita, as Mayor and Chief Executive of the City of Buffalo, 441 F.2d 284, 14 Fed. R. Serv. 2d 1471, 1971 U.S. App. LEXIS 10759 (2d Cir. 1971).

441 F.2d 284 (Build of Buffalo, Inc. v. Frank A. Sedita, as Mayor and Chief Executive of the City of Buffalo) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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