Goldlawr, Inc. v. Marcus Heiman, Select Operating Corporation and United Booking Office, Inc., and Milton Shubert, William Klein and Sylvia W. Golde

273 F.2d 729

• Court: Court of Appeals for the Second Circuit
• Decided: January 18, 1960
• Docket: 25964, 25965
• Status: Published

Opinions

PER CURIAM.

The amended complaint against six defendants alleges a conspiracy to violate the anti-trust laws and damage caused! thereby to the plaintiff in the operation; of the Erlanger Theatre in Philadelphia, It prays for a judgment against all the-defendants in the amount of $1,050,000' to be trebled in accordance with the-Clayton Act, 15 U.S.C.A. § 15, together-with costs and an attorney’s fee, and for an injunction. As against three of the-defendants, the appellees, the action was-, dismissed for lack of personal jurisdietion. The action remained pending-against the others. The judgment of' dismissal contained a direction, such as-, is provided for by amended Rule 54(b) of the Federal Rules of Civil Procedure,. 28 U.S.C.A., that there was no just reason for delay and that judgment be en~ tered in favor of the three defendants. Thereupon plaintiff filed timely notice of appeal. Amended Rule 54(b) expressly deals with multiple claims; consequent-the weiSht of authority has held that m situations involving multiple parties-. but only a single claim, a 54(b) certificate-is ineffective to make appealable a judgment dismissing the action against some-Parties but leavin& it; Pending against other¹ Some decisions in the Second Circuit appear to have taken a contrary yiew Lopinsky v. Hertz Drive-Ur-Self 2 Cir., 1951, 194 F.2d 422;: Colonial Airlines y Janas 2 Cir., 1953; 202 F.2d 914; Rao v. Port of New York Authority, 2 Cir., 1955, 222 F.2d 362,. and United Artists Corp. v. Masterpiece-Prodiuctions, Inc., 2 Cir., 1955, 221 F.2d. 213. On further consideration we have concluded that the Fifth, the Eighth,, the Ninth and, as we read its opinions,. the Seventh Circuit have been correct in. thinking that amended Rule 54(b) does. not allow a finding of finality in the ease here presented where a single claim against multiple parties is dismissed as against some but not all. In consequ.ence we must dismiss the appeals for want of appellate jurisdiction.

Appeals dismissed.

1 . Steiner v. 20th Century Fox Film Corp., 9 Cir., 1955, 220 F.2d 105; Nettles v. General Accident Fire and Life Assuranee Corp., 5 Cir., 1956, 234 F.2d 243; Brandt v. Renfield Importers, Ltd., 8 Cir., 1959, 269 F.2d 14. The Seventh Circuit indicated its agreement with this view in Hardy v. Bankers Life & Casualty Co., 7 Cir., 1955, 222 F.2d 827, although in that case no Buie 54(b) certificate had in fact been made; we do not read Morgan Drive Away, Inc. v. International Brotherhood of Teamsters, 7 Cir., 1959, 268 F.2d 871, as taking a different view. See also 6 Moore, Federal Practice § 54.34 [2].