Tarka v. Time Inc. Magazine

[604] OPINION AND ORDER WHITMAN KNAPP, Senior District Judge. By motion filed February 14, 1991 plaintiff moved for reconsideration of our January 10 order dismissing this action as against defendant Sharon Flood (“Flood”) or, in the alternative, for an order pursuant to Fed.R.Civ.P. 54(b) for the entry of a final judgment with respect to this claim. By order dated February 26 we denied plaintiffs motion for reconsideration. For the reasons that follow, plaintiffs Rule 54(b) motion is also denied. At a pre-trial conference on April 29, defendant Joseph Torres informed us that he will move to have the instant complaint dismissed on various grounds, including the assertion that plaintiff can not demonstrate that he, a legal aid attorney, is a “state actor” for § 1983 purposes. Whereas plaintiffs claims against defendant Torres are similar in nature to the claims asserted against Flood, and whereas defendant Torres’ motion to dismiss will appear to involve application of the same legal principles which were determinative of our January 10 decision, we find that granting plaintiffs Rule 54(b) motion might produce duplicative appellate efforts, contrary to the interest of sound judicial administration. See Curtiss-Wright Corp. v. General Electric Co. (1980) 446 U.S. 1, 8, 100 S.Ct. 1460, 1465, 64 L.Ed.2d 1 (court should act “to assure that application of the Rule effectively ‘preserves the historic federal policy against piecemeal appeals’ ” (citation omitted)); Schieffelin & Co. v. Valley Liquors, Inc. (7th Cir.1987) 823 F.2d 1064. In addition, we can perceive of no undue hardship which will accrue to plaintiff from delaying the entry of final judgement with respect to her claims against defendant Flood. See Cullen v. Margiotta (2d Cir.1980) 618 F.2d 226 (“The power which this Rule confers upon the trial judge should be used only ‘in the infrequent harsh case’ ... Certification should be granted only if there exists ‘some danger of hardship or injustice through delay which would be alleviated by immediate appeal’ ” (citations omitted)); cf. Grimm v. Whitney-Fidalgo Seafoods, Inc. (S.D.N.Y.1974) 61 F.R.D. 310 (“The policy underlying the Rule does not favor the entry of judgment ‘as a courtesy or accommodation to counsel’ ” (citation omitted)). Accordingly, in the exercise of our discretion, we decline to enter final judgment on the claims against Flood. SO ORDERED.