CHRISTIAN E. MARKEY, JR., As Trustees, Plaintiff-Appellants-Cross-Appellees, v. , THE AMERICAN TOBACCO COMPANY, R. J. REYNOLDS TOBACCO COMPANY, B. A. T. INDUSTRIES, P. L. C., BROWN & WILLIAMSON TOBACCO, (2nd Cir. 2000)

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UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 27th day of September , two thousand.

PRESENT:

Hon. John M. Walker, Jr., Hon. Pierre N. Leval, Hon. Fred I. Parker, Circuit Judges.

ROBERT A. FALISE, LOUIS KLEIN, JR., FRANK MACCHIAROLA, CHRISTIAN E. MARKEY, JR., As Trustees, Plaintiff-Appellants-Cross-Appellees, v. Nos. 99-9480, 99-9499

THE AMERICAN TOBACCO COMPANY, R.J. REYNOLDS TOBACCO COMPANY, B.A.T. INDUSTRIES, P.L.C., BROWN & WILLIAMSON TOBACCO CORPORATION, PHILIP MORRIS INCORPORATED, LIGGETT GROUP INC., LORILLARD TOBACCO COMPANY, Defendant-Appellees-Cross-Appellants.

CARTER G. PHILLIPS, ESQ.

APPEARING FOR APPELLANTS:

Sidley & Austin Washington, D.C.

JEFFREY M. WAGNER, ESQ.

APPEARING FOR APPELLEES:

Winston & Strawn Chicago, IL Appeal from the United States District Court for the Eastern District of New York (Weinstein, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the appeal be and it hereby is DISMISSED.

Plaintiffs-appellants appeal from a judgment of the United States District Court for the Eastern District of New York (Weinstein, J.) dismissing the case for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1) because plaintiffs'

state-law claims for restitution, contribution, indemnification, unfair competition, and unjust enrichment were not "related to"

a bankruptcy proceeding within the meaning of 28 U.S.C. §

1334(b). See Falise v. American Tobacco Co., 241 B.R. 63

(E.D.N.Y. 1999); Falise v. American Tobacco Co., 241 B.R. 48

(E.D.N.Y. 1999) (together, "Falise I"). We note that after this case was dismissed, plaintiffs presented the same state-law claims supplemental to a civil RICO action. See Falise v.

American Tobacco Co., 94 F. Supp. 2d 316, 357 (E.D.N.Y. 2000)

(noting that the new case is predicated on the same set of facts as Falise I and raises the same state law claims); Falise v.

American Tobacco Co., 91 F. Supp. 2d 525 (E.D.N.Y. 2000)

(together, "Falise II"). Because plaintiffs' state-law claims may well be adjudicated in Falise II, which does not present the same jurisdictional difficulties as Falise I, we do not think it prudent to rule on the appeal in Falise I at this time.

The appeal is therefore DISMISSED without prejudice to reinstatement on the existing briefs and record (which may be supplemented as necessary) upon motion by plaintiffs should their state-law claims fail to be adjudicated in Falise II.

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