Federal Glass Company v. Samuel Loshin
217 F.2d 936
2d Cir.
1954
Check Treatment

*1 еnjoin de- in an action COMPANY, copying plaintiff’s GLASS (a) FEDERAL from fendants Appellant, (b) corporate title, trade name and any profits, v. compel to account them damages. Appellees. (The complaint LOSHIN, al., (c) pay and et Samuel permanent prayer included a injunction both No. injunction pen- for an Appeals, Court of United States lite). plaintiff’s came The dente Circuit. Second upon numer- on after answer to be heard 4, 1954. Oct. Submitted Motion parties, and ous affidavits filed upon 3, 1954. Dec. Decided interroga- plaintiff’s answers to ' put tories the defendants. opinion, Smith denied in written F.Supp. 737, substantially for the reason prоved plaintiff that had not widely had become its trade name enough market known in the defendants’ before the defendants had themselves begun agree parties business. Both interlocutory; the order was their dif- ference is whether is nevertheless with- meaning 1292(1) in the U.S.C.A., of Title “refusing” in- an order an junction. The decisions are uniform. Raylite Corp. in held Electric We Judge, Clark, Chief dissented. Corporation, 2 Noma Electric lay an from such an F.2d

order, did and the Fifth Circuit the same ‍‌​‌​‌‌​​​​​‌‌​​‌‌​​‌​‌‌​​​​​​‌​​‌‌​​​​​​‌​‌​​‌​​‍Forwarding Co.v. Brew- International er, 181 F.2d 49. On the other hand the Third Chemical Circuit Schering Corp., ex- Co. v. learning question much amined the appeal, it has fol- and dismissed case, in later Hook that dеcision lowed Inc., Ackerman, & v. Hook accepts their view.1 We Moore Mr. agree Hastie said Mor- that, as Irving Levine, Danbury, Conn., for the Schering Corp., genstern Chemical ‍‌​‌​‌‌​​​​​‌‌​​‌‌​​‌​‌‌​​​​​​‌​​‌‌​​​​​​‌​‌​​‌​​‍Co. motion. 161], decision was supra our [181 Conn., Haven, Wiggin Dana, New problem”; analysis of the “without made Mahoney Miller, Corbett, & Colum- mistakenly owing that we the fаct Jr., bus, (Thew Wright, New Hav- Ohio thought question did not demand counsel), en, Conn., appellant. analysis. CLARK, Judge, Before Chief and L. appeals provides for from Section udges. FRANK, Circuit J HAND sorts, necessarily judgments all Judge. HAND, L. Circuit judg- including appeal from a final injunction. denying defendants move dismiss ment appeals from peal, from an 1292 allows four taken order Section orders, interlocutory denied its motion for a kinds of different Moore, pp. 2321, Practice, Federal Vol. *2 937 personal knowl on “granting, sides “shall be made con- first is those which the edge, would such facts as refusing shall set forth modifying, dissolv- tinuing, or evidence, show and shall refusing be admissible in ing injunctions, dissolve or competent affirmatively the affiant is modify injunctions.” words If these or therein”; testify to matters stated they appear in- the literally, to us read be may possible that so far as be dubitably motion but also a the denial of to cover though regardless the all be decided even injunction, facts shall for a escape grounds the motion be denied. We cannot may procedure or what be much moving Indeed, belief that decision involves party. not we do any deny those, that will be better to await' more than who understand that appeal, trial; otherwise; a and this is borne out a sub their base think body ques theory interpretation upon that the stantial of decision that settle, a indeed does tion is the same as raised does decision not anything tentatively decide, motion to direct a verdict an action not even 2 claim; jury. example, does For all it tried to a Sartor about the merits shown, that, Corp., upon v. the facts as Arkansas Natural Gas 321 is to hold U.S. 620, 624, 724, 727, 967, Even 64 88 L.Ed. must await a trial. S.Ct. the cause scarcely Supreme so, seems an ade- the said: Court “But at least were disregarding language summary disposition quate a reason for issues dam section; age jury so unconditional as that of the should be on evidence which a rely upon liberty but do not wish to that. would not be at to disbеlieve U.S.C.A., 56(c), require a Under Rule granted be and which would directed ver moving summary judgment, party.” the mov- dict only party show, must not that there It is of course true that the motion any “genuine as to is no issue material trial, against is not a substitute for a fact,” that he “is entitled but also possibility of which courts—ourselves If as a matter law.” the еspecially been ‍‌​‌​‌‌​​​​​‌‌​​‌‌​​‌​‌‌​​​​​​‌​​‌‌​​​​​​‌​‌​​‌​​‍solicitous to —have words, decision is based these later always high test. There remains the may finally denial it is obvious that a over leap, hurdle which the must great deal, usually settle a later judgment: who would secure such a i. e. already accept will law laid record, court, as it comes before the down in the same action an earlier necessity is limited to evidence that judge. Moreover, to reach such a deci- writing put can be into or contained in sion the “discretion of the chancellor” exhibits; and, as we have never tired of may “invoked”; “equitable be considera- saying, may be, what left out and fre- “weighed” ; may tions” be “con- quently is, important part. the most Be- respect clusion” “reached with be to sides, at least jury, actions triable to a equity of the claim that a restraint greater handicap this; even than imposed.” But, should be even when the for the court any must refuse to decide “genuine is beсause there is a issues whose answer admits of reasonable fact,” issue as to material the deci- Therefore, say, doubt. though even deciding confined to sion is not that the the denial has been because there was although trial, await a claim must “genuine fact,” nothing issue of course is one of its results. Subdivi- decidеd, nothing and that can set- be (c) requires pass upon sion appears tled, generali- to us an untenable depositions, pleadings, “the and admis- everything zation. That is not together decided is file, with the sions on affida- certainly objection, no ; (d) else (e) pre- denials of and subdivisions vits” liminary injunctions only provide on would that the affidavits also be ex- 137, Cir., App.D.C. 766, Teter, 772; v. 180 F.2d 2. Fishman Hurd 223; Cir., Brasil Steel Madeirense Do v. Stul- Sheffield S/A Co., man-Emrick Lumber Dewey Clark, 86 U.S. altogether eluded, 1292(1) next would minute after denial of the summary judgment motion, present nullified. could unchanged papers except the same although injunc- Finally, preliminary *3 label, preliminary new “Motion for a gives plaintiff relief until injunction.” reason, disagree For that nothing more, trial, him of it insures with Scher Chemical Co. v. arrange upon the his affairs he cannot ing Corp., Cir., where any protection of after the trial. basis 162; “Nothing page the court said has at may uncertainty, last over That which occurred in or aas result of the dеnial of nearly year, may as the a as serious be summary judgment] [for motion ap- protection any at all. It absence of precludes seeking plaintiff which a from pears the considera- to us therefore that temporary injunction in accordance with Congress presumably moved tions that procedure if im established he believes grant appeals from interlocu- in 1895 to injunctive necessary mediate relief is tory injunctions— preliminary denials of proper.” i. suitors e. because was unfair to leave it unprotected pending be trial —should Ordinarily denying 2. an order a apply denials of summary deemed to judgment aрpealable. is not original injunctions. of omission suggested The consequence It is of readily any accounted these is ruling mention of that, only our here will mean if by not until it was plaintiff complaint for the fact a includes in his a effect, into went prayer preliminary New Rules injunction, any when the summary possible for denying summary it tо move was order a will Although judgment in Federal Court. a appealable, become and that thus the- high authority impressed are appeal many we will courts be faced with view, opposite who appeals. many take those appeal frivolous But change persuaded that we motion, explicitly from a denial of a original ruling; and the motion will preliminary injunc- our a for labeled motion tion, be denied. frivolous —because the trial judge’s wide discretion such matter— Motion denied. and receives short shrift when the peal is heard on the merits. (concurring). FRANK, Circuit appealability 3. here, for case prayed complaint Plaintiff’s injunc- as even to the denial of a final injunction. Its final a preliminary and a tion, peculiarly strong excep- sought it asked relief which motion tional. For the did not refuse to plaintiff, complaint. with- When in its grant injunction ground such an on the summary judgment, seeking makes fact, there was a triable issue of injunction, if the preliminary legal but on the basis his conclusion grant it, con- because he refuses that, taking even pre- the evidence if as offered affidavits insufficient siders trial, plaintiff at a sented had not shown course lies under plaintiff, an that was entitled to such relief. be there should I think 28 U.S.C. § merely because conclusion different no CLARK, injunction Chief (dissenting). preliminary plaintiff seeks paper calls which of a means emphasizes, opinion As the decision judgment. very a motion literal herein based read- statute, 1292(1), conclusion, by 28 U.S.C. contrary § sheer ritual- of the A looking consequences.1 plaintiff, For without time. waste ism, would trasting decisions of § L. “final” at 3. 28 St. grant points or refusal of 1291 — may suggest reading literal 1. Even remedy pending litigation, rather doubts; in the title stress the continued grant judg- refusal the final than a n upon “m subsections four for. asked ment terloeutory” or decisions —con- orders considered, Processing 65, Distributive, consequences District be Were ruled a Office apparent now Workers Union New York and would prayers adding Jersey McKague, his New plaintiff, by Quoting injunction pre- Supreme F.2d 153. from for relief for an one — final, statutory interpretation liminary, interlocutory, it makes Court’s purpose appeals de- cause “to allow from orders no difference which— judgments pre-trial im- other to be than final niаl of motions when gives mediately irreparable have a appealable. him This effect on the rights discretion, parties,” practically since un- v. Beneficial Cohen unlimited *4 merged procedure law-equity 541, 545, Industrial Loan 337 U.S. der now the plausible 1221, 1225, 1528, 69 S.Ct. to frame 93 L.Ed. it it is never difficult relief; points compulsive out in neither instance was demand for additional hardly moreover, upon this summary plausibility be held the denial can situation of the essential, judgment, must be re- claims but rather was as as erroneous though equally ones. Thus viewed with sound case had been continued for originally conjunction en- additional of a evidence. Thus under statute this interpretation sixty years properly ago, obvious we look acted procedural decision, relying nature of purpose, and instead of and a different fifty years nearly arbitrary principle newly on an la- rules devised of com- plete objectives, appealability quite foreign ter, with their own cleаr-cut tradi- policy. tional federal in substantial overturn results consistently reiterated fed- historic and do, my judgment, It will in not to rest against “piecemeal ap- principle eral ‍‌​‌​‌‌​​​​​‌‌​​‌‌​​‌​‌‌​​​​​​‌​​‌‌​​​​​​‌​‌​​‌​​‍upon analysis and conclusion that peals.” summary judgment denial of must al ways mean more than the Third Circuit now In which have become words finds in the сases before it. While such classic, have been admonished that we operate a denial so when the trial indexes the surest of a “it is one of intends, nothing so there is in the developed jurisprudence mature compel stated result; rule to this dictionary; make fortress of the appellate prod the actual trend —under always to remember that statutes but ding my colleagues in which have been object purpose or to accom- have some prominent participants surely the imaginative —is sympathetic plish, whose way. other As we can see from the trial guide discovery is the surest their opinions, nearly court universal Cir., meaning.” Markham, 2 Cabell summary judgments, denial except of all 739, 737, affirmed Markham v. upon adjudication law, of issues of 404, 409, 193, Cabell, 66 S.Ct. 326 U.S. customarily by repeating appel reached spirit In the full 90 L.Ed. 165. this against by late admonitions “trial affi Circuit, in precept Third five deci- relying upon judicial davits” and representing the unanimous views sions “slightest gloss requires that the doubt” judges comprising of at least six this, of the motion.2 In view of tribunal, distinguished has reached significantly unreal to find ele convincing interpreta- ais to me what finality in ments of this rather uniform Morgenstern Chem- of this statute. summary judgment. treatment Schering Cir., Corp., 3 Co. v. ical light 160, 162; developing Albert v. School Dist. of In of this F.2d Pittsburgh, tradi- Cir., cogent 691; tion, appellant’s argument 181 F.2d most Forman, Cir., Airlines to me to be that seems American Smith ac- tually 230; Hook so v. Hook & did decide much Acker- the merits provide degree requisite man, Inc., as to of sub- Preliminary Draft, May 1954, pp. 50-52, and authorities cited cases See Wright, Advisory Note to the Amendments Committee’s to the Federal Rules, 56(e), 546(1954). posed amendment F.R.C.P. 7 Vand.L.Rev. judgment suggest rarely, ever, operation adjudication if for stantial prepared will we Circuit. reverse the action principle the Third adduced (cid:127) calling of a trial a full trial. opinion some basis does afford Since inviting Hence argument dis- now I have been a considerable should appeals which, silence, flood of posed acquiesce notwith- like one be- us, obviously standing misgivings fore on the facts ‍‌​‌​‌‌​​​​​‌‌​​‌‌​​‌​‌‌​​​​​​‌​​‌‌​​​​​​‌​‌​​‌​​‍seem doomed to fail- some supporting an ure. and in the interest rule, operable been had our conclusion suggestion concurring opin- in the analysis. But since the this based ion that herе to the traditional adherence my sweep as—in is such of our decision against practice interlocutory ap- federal inoperable prove in actual —to peals would result somehow sheer invita- practice of its unlimited in view ritualism in a waste of is not con- time interlocutory appeals, and since I tion to vincing. That who has shown require restatement it will believe injunction pendente no real interest in an course, I feel in due restriction lite should be stimulated thereto misgiv- my go express and define *5 on to denial on the merits of his demand for ings. of doubt These áre based likely. does not seem But appellant indiсation, either real him; my is, if he then we should hear signalizes Judge Smith, this case Circuit, position, that of the Third like ordinary departure tenta- from the is not that we should limit Act of merely postponing of tive and nature Congress, that we should not ex- summary Signifi- judgment. of pand it.4 do I much relief in Nor see attempt cantly appellant made no frivolous, “short which albeit shrift” injunction need of an cure or to show the ; encouraged, appeal expected to receive pendente beyond purely lite, formal shrift, no matter how short complaint. And prayer of its involving amounts a full-dress suggests actually he the need finds Smith litigants expense of and useless time says that the when he for more evidence calendar-clogging delay for courts. .gen- him does show material before extending interlocutory ap- Steps free knowledge plaintiff’s trade public of eral unwise, peals as the committee re- adds, the exhibits least “At name and unusually port, after full made it.” not dеmonstrate us would now before accepted by the Judicial Con- canvass essaying litigant supplied.) A (Italics States, Report United see ference this, than more show appeal should condemning 1952, 203, stated, such gen- out case believe, to take unduly legislation en- “would which summary-judgment denials.3 run eral courage fragmentary frivolous delays incident peals evils and our result about with paradox ais There intrigue. be fashioned Our Nor thereto.” fail cannot which here interpretation. through mere critical past decisions deferring 12(d) determina- Co. v. Scher- E'.R.C.P. Chemical In 181 until motion the trial. S the former supra, tion acutely atten- draws Hastie opened Possibly too wide door interconnection close limitation, some there should be here 12(b) E'.R.C.P. under dismiss judge; trial certificate summary judgment legislation 54(b) motion usually and the F.R.C.P. ef. Conference, on submission becomes Judicial recommended which pleading,” Report But matter outside “matters authority legislative policy. under points direct