c33:No. 46, Docket 26358

LUMBARD, Chief Judge
(concurring and dissenting).
I agree that the lack of a certificate by the district judge under Rule 54(b) deprives us of jurisdiction to hear this appeal, but I do not agree that a new appeal may be prosecuted if such a certificate of finality is filed. The plaintiffs’ claims all arose out of one “aggregate of operative facts.” See Original Ballet Russe v. Ballet Theatre, 2 Cir., 1943, 133 F.2d 187,189. If the defendants’ conduct amounted to “discrimination,” a federal claim could be asserted; if it amounted to an unlawful conspiracy and wrongful discharge, a state claim existed. The dismissal of the federal claim, therefore, is not appealable until all causes of action arising out of the one set of facts are determined. Schwartz v. Eaton, 2 Cir., 1959, 264 F.2d 195; Cott Beverage Corp. v. Canada Dry Ginger Ale, Inc., 2 Cir., 1957, 243 F.2d 795.

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