OpenJurist

107 F3d 2 Ardito v. Coombe

107 F.3d 2

Gerald ARDITO, individually and on behalf of all others
similarly situated, Plaintiff-Appellant,
v.
Philip COOMBE, Jr., Defendant-Appellee.

No. 96-2105.

United States Court of Appeals, Second Circuit.

Jan. 6, 1997.

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED TO THE ATTENTION OF THE COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.

APPEARING FOR APPELLANT: Mitchell A. Karlan, Gibson, Dunn, & Crutcher, New York, N.Y.

APPEARING FOR APPELLEE: June Duffy, Assistant Attorney General of the State of New York, New York, N.Y.

S.D.N.Y.

APPEAL DISMISSED.

Before MINER, WALKER and LEVAL, Circuit Judges.

1

This cause came on to be heard on the transcript of record from the United States District Court for the Southern District of New York and was argued by counsel.

2

ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the appeal will be dismissed unless appellant shows cause to the contrary.

3

Appellant Gerald Ardito brought this action in the Southern District of New York on behalf of himself and all other Muslims incarcerated in New York State prisons. Ardito sought declaratory and injunctive relief requiring appellee Philip Coombe, Jr., the Commissioner of the New York State Department of Correctional Services, to provide Muslim prison inmates with meat that conforms to the requirements of the Islamic faith (called "Halal" meat). The State moved to dismiss Ardito's complaint on the basis of improper venue under 28 U.S.C. § 1391(b), because neither Ardito nor Coombe resided in the Southern District of New York. Ardito opposed the motion, arguing that venue was proper because other putative class members are incarcerated in the Southern District. Without ruling on Ardito's motion for class certification, the district court granted the defendant's motion for dismissal. This appeal followed.

4

During the course of this appeal, a Muslim inmate residing in the Southern District of New York, Mika'il A. Abdul-Malik, filed a complaint against Coombe seeking identical relief on behalf of the same putative class of prisoners based on the same legal theory. Abdul-Malik is represented by the same attorney who represents Ardito. The district court in that case has granted Abdul-Malik's motion for class certification, and certified a class consisting of all persons who seek to maintain a Halal diet and are now or will be incarcerated in facilities operated by the New York State Department of Correctional Services. Abdul-Malik v. Coombe, No. 96 CV. 1021, slip op. at 9 (S.D.N.Y. Dec. 5, 1996). Ardito is a member of the class.

5

It appears that the appellant will receive all the relief to which he may be entitled as a member of the class action certified in Abdul-Malik. Moreover, Ardito may move to join the action as a class representative if he is so inclined.

6

In view of the proceedings in Abdul-Malik, the benefits Ardito seeks by this appeal have been obtained. The appeal therefore appears to be moot. Since Ardito has received the opportunity to adjudicate his claims in a class action in the Southern District of New York, nothing turns on the resolution of the issues on appeal.

7

In addition, continuation of this action in the district court would appear to be needlessly duplicative, and thus a candidate for dismissal pursuant to this court's inherent supervisory authority to manage the process of litigation.

8

For these reasons, the appeal will be dismissed unless appellant shows just cause to the contrary by January 20, 1997. Appellee may respond by January 27, 1997.