547 F.2d 185 | 2d Cir. | 1976
Lead Opinion
Plaintiff Albert Brick, owner of 600 shares of Funk Seeds International, Inc. (“Funk”), appeals from an order of the United States District Court for the Southern District of New York, Lloyd F. MacMahon, J., denying Brick’s motion for class action certification in his action against defendant CPC International, Inc. (“CPC”). Plaintiff’s amended complaint alleges that when CPC made a public offering by pro
In July 1973, plaintiff filed this suit as a class action in the United States District Court for the District of Columbia. The class, as defined in the amended complaint, includes “all of the shareholders of Funk.” Plaintiff is an attorney and he and the purported class are represented in this action by Samuel Intrater, plaintiff’s sole law partner in the firm of Brick and Intrater. After some preliminary procedural skirmishing in the District of Columbia, Judge Richey sua sponte transferred the action to the United States District Court for the Southern District of New York under 28 U.S.C. § 1404(a), primarily because a related action was pending there before Judge MacMahon.
The appeal poses potentially significant issues concerning appealability and the criteria for proper class representation under Fed.R.Civ.P. 23. As to the former, it is not clear whether the appeal is allowable under our “death knell” doctrine, which has itself been the subject of controversy both within this circuit
On the issue of class representation, district courts in this circuit have expressed concern over the propriety of a law partner relationship between the attorney for the class and its representative, but they have not invariably refused to certify the class when the relationship exists. Compare Stull v. Baker [1973 Transfer Binder] CCH Fed.Sec.L.Rep. 1194,227, at 94,929 (S.D.N.Y. 1973) with Cotchett v. Avis Rent A Car System, Inc., 56 F.R.D. 549 (S.D.N.Y.1972). And we have not yet ruled on whether, as appellee suggests here, there should be a per se rule prohibiting the practice. See Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir. 1976); Note, Developments in
We do not think that this is a proper case for fuller consideration of these issues. It is clear from the record before us that Judge MacMahon did not abuse his discretion in denying class certification. Moreover, we note that his decision does not bar class certification with another person representing the class.
Judgment affirmed. We deny appellee’s motion for attorneys fees and double costs.
. Simon v. Funk Seeds International, Inc., 74 Civ. 645.
. See, e. g., Parkinson v. April Indus., 520 F.2d 650, 658 (2d Cir. 1975) (Friendly, J., concurring); Shayne v. Madison Square Garden Corp., 491 F.2d 397 (2d Cir. 1974).
. See e. g„ Anschul v. Sitmar Cruises, Inc., 544 F.2d 1364 (7th Cir. 1976); Hackett v. General Host Corp., 455 F.2d 618 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). See also Note, Developments in the Law — Class Actions, 89 Harv.L.Rev. 1318, 1438 n.234 (1976), and cases cited therein.
. Even though the Simon action, see note 1 supra, has been settled, there is still at least one other purported class suit now pending in the Southern District. Burger v. CPC International, Inc., 76 Civ. 2106.
. Plaintiff also appeals from Judge MacMahon’s refusal to retransfer. That order would not ordinarily be appealable at this time. See D’Ippolito v. American Oil Co., 401 F.2d 764, 765 (2d Cir. 1968); 1 Moore’s Federal Practice 110.147, at 1694-95 (2d ed. 1976). Nor would this be an appropriate case for the application of pendent appellate jurisdiction since there is no apparent overlap of issues between the orders denying certification and retransfer. General Motors Corp. v. City of New York, 501 F.2d 639, 648 (2d Cir. 1974). In any event, even if we assume that this order is also appealable, Judge MacMahon did not abuse his discretion in denying retransfer.
Dissenting Opinion
(dissenting):
I respectfully dissent. The majority “assume[s] arguendo that the order [denying class action certification] is appealable,” ante, at 187, and reaches the merits of this controversy, holding that Judge MacMahon did not abuse his discretion. I express no view on the merits, for I cannot agree that the order is appealable.
Under the “death knell” doctrine, the burden is upon the party who asks us to assume jurisdiction to show that the suit will end if class action status is denied. Jelfo v. Hickok Mfg. Co., Inc., 531 F.2d 680, 681 (2d Cir. 1976). Brick has not made the slightest attempt to carry that burden. Instead, he relies on CPC’s concession to the effect that a $4,200 claim is sufficiently small to warrant the application of the “death knell” doctrine.
With due respect to the majority, and apologies to Ernest Hemingway and John Donne,
It is true that Judge MacMahon’s order denying class certification will force Brick to make some difficult choices. If he wishes to continue his class action, he must first find another lawyer to represent the class,
I would dismiss the appeal.
. That concession is, of course, wholly ineffective to confer jurisdiction upon this Court. For the purposes of this opinion, however, I shall treat CPC’s argument as if it had been made by Brick.
. E. Hemingway, For Whom the Bell Tolls (1940); J. Donne, Devotions Upon Emergent Occasions XVII.
. 1 do not wish to suggest that if Brick merely changes lawyers he will thereby become entitled to class certification. It may be that by starting this litigation with his law partner as his attorney he has created an appearance of impropriety that can never be reduced to acceptable levels. See generally General Motors Corp. v. City of New York, 501 F.2d 639 (2d Cir. 1974). I express no view on either the merits or the appealability of an order denying class certification on that basis, for no such order is presently before the Court.
. As the majority notes, ante, at 187 n.4, there is at least one other purported class action pending in the Southern District. The pendency of that action bears ample witness to the fact that this lawsuit is viable.
. Because the parties agree that the “death knell” doctrine is applicable here, they have not mentioned the Cohen doctrine as a possible basis for a finding of appealability.
. See note 3, supra.