Joseph S. Robbin, Appellant, v. the American University, a Corporation, Appellee, 330 F.2d 225 (D.C. Cir. 1964)

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U.S. Court of Appeals for the District of Columbia Circuit - 330 F.2d 225 (D.C. Cir. 1964) Argued January 4, 1964
Decided March 5, 1964

Mr. Alfred M. Schwartz, Washington, D. C., with whom Mr. Albert A. Rapoport, Washington, D. C., was on the brief, for appellant.

Mr. Thomas M. Raysor, Washington, D. C., with whom Mr. Byron K. Welch, Washington, D. C., was on the brief, for appellee.

Messrs. Leland T. Johnson, Jr., and John H. Myers, Washington, D. C., filed a brief on behalf of The American Council on Education, as amicus curiæ, urging affirmance.

Before EDGERTON, Senior Circuit Judge, and FAHY and WRIGHT, Circuit Judges.


Appellant's complaint against The American University and certain individuals who are members of its staff is based upon alleged acts of the individuals. The District Court dismissed the complaint "as to the defendant American University only" and declined to dismiss it as to the individuals. The court expressly "determined * * * that there is no just reason for delay of the entry of final judgment" and ordered final judgment to be entered as to the University.

We think the court erred. At least one of the possible decisions of this appeal might in effect decide appellant's claims against the defendant members of the University's staff. Those claims have not been and should be decided in the first instance by the District Court. We therefore apply the Supreme Court's statement in Sears, Roebuck & Co. v. Mackey, 351 U.S. 427, 437, 76 S. Ct. 895, 100 L. Ed. 1297, that an abuse of discretion by the District Court in acting under F.R.Civ.P. Rule 54(b) is reviewable by the Court of Appeals.

The appealed judgment will be set aside and the case remanded for further proceedings. The District Court will have full control over the entire case, including appellant's claims against all defendants, until final judgment is entered as to all. Cf. Zangardi v. Tobriner, 117 U.S.App.D.C. ___, 330 F.2d 224.

Remanded for further proceedings.