09-1993-cv
Brown v. New York State Supreme Court for
the Second Judicial District
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS COURT'S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUMM ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION "SUM M ARY
ORDER"). A PARTY CITING A SUMM ARY ORDER M UST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
3 the 20th day of April, two thousand ten.
4
5 PRESENT:
6
7 BARRINGTON D. PARKER,
8 DEBRA ANN LIVINGSTON,
9 GERARD E. LYNCH,
10 Circuit Judges.
11
12
13 IRVING BROWN,
14 Plaintiff-Appellant,
15
16 -v.- No. 09-1993-cv
17 Summary Order
18 NEW YORK STATE SUPREME COURT
19 FOR THE SECOND JUDICIAL DISTRICT,
20 Defendant,
21
22 ASTORIA FEDERAL SAVINGS AND LOAN
23 ASSOCIATION,
24 Defendant-Appellee.*
25
26
27 Irving Brown, pro se, Essex, U.K., for Plaintiff-Appellant.
28
29 James G. Marsh, O’Reilly, Marsh & Corteselli P.C., Mineola, NY,
30 for Defendant-Appellee.
31
32
*
The Clerk of the Court is directed to amend the caption as set forth above.
1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED,
2 that the appeal is dismissed for lack of jurisdiction.
3 Plaintiff-Appellant Irving Brown, proceeding pro se, appeals from an order of the United
4 States District Court for the Eastern District of New York (Cogan, J.) dismissing Brown’s action
5 as to the New York Supreme Court for the Second Judicial District (“New York Supreme Court”),
6 but permitting the action to proceed against the Astoria Federal Savings and Loan Association
7 (“Astoria”). We assume the parties’ familiarity with the underlying facts and procedural history of
8 the case.
9 A district court order is appealable only as a final order under 28 U.S.C. § 1291 or Rule 54(b)
10 of the Federal Rules of Civil Procedure, as an order relating to an injunction or other matter
11 encompassed by 28 U.S.C. § 1292(a), as an interlocutory order certified under 28 U.S.C. § 1292(b),
12 or as an order falling within the collateral order doctrine. See Whiting v. Lacara, 187 F.3d 317, 319
13 (2d Cir. 1999). Generally, a final order is an order by the district court that “ends the litigation on
14 the merits and leaves nothing for the court to do but execute the judgment.” Coopers & Lybrand
15 v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
16 Under Rule 54(b), when some, but not all, of the claims or parties have been dismissed from the
17 case, the trial court must certify that there is no just reason to delay the appeal and expressly direct
18 that judgment be entered in regard to those claims or parties before an appeal can proceed. See
19 Ruffolo v. Oppenheimer & Co., 949 F.2d 33, 35-36 (2d Cir. 1991). The collateral order doctrine is
20 limited in its application to “trial court orders affecting rights that will be irretrievably lost in the
21 absence of an immediate appeal.” Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 430-31 (1985).
22 Further, in order to fit within the collateral order doctrine, which is a narrow exception to the general
23 rule that interlocutory orders are not appealable as a matter of right, the order must: (1) conclusively
2
1 determine the disputed questions; (2) resolve an important issue completely separate from the merits
2 of the action; and (3) be effectively unreviewable on appeal from a final judgment. See Schwartz
3 v. City of New York, 57 F.3d 236, 237 (2d Cir. 1995).
4 In this case, the district court order is not final, pursuant to § 1291, because it dismissed the
5 claims against the New York Supreme Court, but permitted the action to continue against Astoria.
6 See Ruffolo, 949 F.2d at 36. It is true that Astoria was an unserved defendant at the time the district
7 court issued its order, and that we have found that when an “action is dismissed as to all defendants
8 who have been served and only unserved defendants ‘remain,’” there is no reason “to preclude the
9 immediate and automatic entry of a final judgment since there is no basis for believing there will be
10 any further adjudications in the action, or, therefore, for holding the dismissals subject to revision.”
11 Leonhard v. United States, 633 F.2d 599, 608 (2d Cir. 1980). However, in this case, the Leonhard
12 exception does not apply because the district court order indicated that the case would proceed
13 against Astoria, and the district court has not issued a final judgment. See id. at 608 n.9.
14 Moreover, none of the narrow exceptions to the final judgment rule are applicable here. The
15 order in this case is not an appealable interlocutory decision pursuant to § 1292(a), and the district
16 court did not certify an appeal pursuant to § 1292(b). Finally, the collateral order doctrine does not
17 apply in this case. The district court’s determination that the New York Supreme Court is entitled
18 to immunity can be effectively reviewed on appeal from final judgment. See Morris-Hayes v. Bd.
19 of Educ., 423 F.3d 153, 162-63 (2d Cir. 2005).
20 For the foregoing reasons, the appeal is DISMISSED for lack of jurisdiction.
21
22
23 FOR THE COURT:
24 Catherine O’Hagan Wolfe, Clerk
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