2006 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-14-2006

Weinstein v. Bissell

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1808

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Recommended Citation

"Weinstein v. Bissell" (2006). 2006 Decisions. Paper 209.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 06-1808 

________________

BARRY WEINSTEIN, And On Behalf of DAVID 

HARRIS WEINSTEIN As Next Friend, To His Minor 

Child Age 14 - As Natural Father & Guardian,

Appellant,

v.

NICHOLAS BISSELL, CONVICTED FELON 

(DECEASED); MARK LEWIS, DETECTIVE 

(INDIVIDUALLY AND OFFICIALLY);

COUNTY OF SOMERSET; FRANKLIN TOWNSHIP;

SOMERSET COUNTY FREEHOLDERS; CRAIG 

BARTO; WAYNE FORREST; LAURI H. MELILO, 

(INDIVIDUALLY AND OFFICIALLY); ESQ. 

APRIL CORDTS; TOBY GRABELLE ESQ. 

PARTNERS AND ASSOCIATES; EDWARD P. 

FRADKIN; GAIL POLTAWEC; DR. NICK 

POLTAWEC, (ESTATE); ULSTER COUNTY; 

MICHAEL MIRANDA; E. MICHAEL KAVANAGH; 

TOWN OF WOODSTOCK, NEW YORK; OFFICER 

VANDEBOGART; ULSTER COUNTY SHERIFFS; 

LOUIS LOCASCIO; NEW JERSEY PAROLE 

DEPARTMENT; LEONARD ARNOLD; JANE/JOHN 

DOES (1-100) (INDIVIDUALLY AND OFFICIALLY)

AS YET OTHER UNKNOWN

________________

On Appeal From the United States District Court

For the District of New Jersey 

(D.C. Civ. No. 02-cv-01593 )

District Judge: Honorable Stanley R. Chesler

________________
 1

 This lawsuit has a more extensive procedural history with which the parties are

familiar, and, as we write primarily for them, we will not discuss it here.

2

Submitted Under Third Circuit LAR 34.1(a)

September 11, 2006

Before: RENDELL, AMBRO and ROTH, Circuit Judges

(Filed November 14, 2006)

_________________

OPINION

_________________

PER CURIAM

Appellant Barry Weinstein brought an action for money damages in the United

States District Court for the District of New Jersey against numerous defendants under 42

U.S.C. § 1983 for allegedly violating his civil rights in connection with a custody

dispute.1

 Specifically, Weinstein alleged that he was arrested without probable cause, and

subjected to a malicious prosecution which ended in his favor when the Superior Court of

New Jersey dismissed the indictment against him with prejudice on January 20, 2000. 

Most, but not all, of the defendants moved either to dismiss Weinstein’s amended

complaint or for summary judgment, and the District Court granted those motions in

orders entered on May 23, 2005 (defendants Ulster County, Michael Miranda, E. Michael

Kavanagh, Ulster County Sheriffs, Town of Woodstock, and Sergeant Gregory Van De

Bogart), June 21, 2005 (defendants April Cordts, Louis Locascio, Leonard Arnold, Craig

Barto, Wayne Forrest, Lauri Melilo, Franklin Township, and Mark Lewis), July 12, 2005
3

(defendant New Jersey Parole Board), and February 21, 2006 (defendants Jacobowitz,

Grabelle, Defino, and Latimer, P.C., Toby Grabelle, Esq., Edward Fradkin, Esq., and Gail

Poltawec). The District Court denied Weinstein’s motions to transfer venue and for

recusal, and, in an order entered on February 28, 2006, the District Court dismissed all

remaining pending motions as moot and closed the case because it appeared to the court

that no defendants remained. 

Weinstein appealed, and submitted a brief in which he noted that defendants

County of Somerset and County of Somerset Freeholders had answered the complaint on

April 4, 2005 (Document # 126), and had not filed a dispositive motion. He argued that

they remain parties to the case, and that the case is not yet appealable. Various appellees

filed briefs in response. Of those appellees, only the Town of Woodstock, New York and

Sergeant Gregory Van DeBogart noted that Somerset County remains a party to the case

and thus the appeal is premature.

We will dismiss the appeal for lack of jurisdiction because it is taken from an

order, or orders, that is, or are, not appealable at this time. To be appealable under 28

U.S.C. § 1291, the order must end the litigation as to all claims and all parties. See

Mellon Bank, N.A. v. Metro Communications, Inc., 945 F.2d 635, 640 (3d Cir. 1991). 

None of the orders at issue here do so because as the County of Somerset remains a party

to the case. The Office of the County Counsel, 21 North Bridge Street, P.O. Box 1034,

Somerville, New Jersey 08876, submitted an answer on behalf of “County of Somerset

and Somerset County Freeholders” on April 4, 2005, and has yet to file a dispositive
 2

 We do not interpret the District Court to have dismissed these defendants sua sponte

in its February 28, 2006 order. Instead, it appears that the court simply was unaware that

the County of Somerset had answered the complaint and was not among the numerous

defendants to have moved for dismissal or summary judgment.

4

motion. The District Court’s order entered on February 28, 2006 marking this case

“closed” does not become final for purposes of appellate jurisdiction “merely by reason

of the execution of that order and its entry on the docket.” Morton int’l inc. v. A.E.

Staley Mfg. Co., No. 04-3936, 2006 WL 2385257, at *7 (3d. Cir. Aug. 18, 2006).2

Moreover, no orders have been certified pursuant to Rule 54(b). Fed. R. Civ. P. (“[T]he

court may direct the entry of a final judgment as to one or more but fewer than all of the

claims or parties only upon an express determination that there is no just reason for delay

and upon an express direction for the entry of judgment.”). 

We will dismiss the appeal for lack of jurisdiction.