23226_1 | 2d Cir. | Dec 3, 1954
Lead Opinion
The defendants move to dismiss an appeal, taken by the plaintiff from an order that denied its motion for a summary judgment in an action to enjoin the defendants (a) from copying the plaintiff’s trade name and corporate title, (b) to compel them to account for any profits, and (c) to pay damages. (The complaint included a prayer both for a permanent injunction and for an injunction pen-dente lite). The plaintiff’s motion came on to be heard after answer upon numerous affidavits filed by both parties, and upon the plaintiff’s answers to interrogatories ' put by the defendants. Judge Smith denied it in a written opinion, 126 F. Supp. 737" court="D. Conn." date_filed="1954-07-14" href="https://app.midpage.ai/document/federal-glass-co-v-loshin-8720206?utm_source=webapp" opinion_id="8720206">126 F.Supp. 737, substantially for the reason that the plaintiff had not proved that its trade name had become widely enough known in the defendants’ market before the defendants had themselves begun business. Both parties agree that the order was interlocutory; their difference is whether it is nevertheless within the meaning of § 1292(1) of Title 28 U.S.C.A., as an order “refusing” an injunction. The decisions are not uniform. We held in Raylite Electric Corp. v. Noma Electric Corporation, 2 Cir., 170 F.2d 914" court="2d Cir." date_filed="1948-11-29" href="https://app.midpage.ai/document/raylite-electric-corp-v-noma-electric-corp-1567658?utm_source=webapp" opinion_id="1567658">170 F.2d 914, that an appeal lay from such an order, and the Fifth Circuit did the same in International Forwarding Co. v. Brewer, 181 F.2d 49" court="5th Cir." date_filed="1950-04-05" href="https://app.midpage.ai/document/international-forwarding-co-v-brewer-224706?utm_source=webapp" opinion_id="224706">181 F.2d 49. On the other hand the Third Circuit in Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160" court="3rd Cir." date_filed="1950-04-05" href="https://app.midpage.ai/document/morgenstern-chemical-co-inc-v-schering-corporation-224748?utm_source=webapp" opinion_id="224748">181 F.2d 160, examined the question with much learning and dismissed the appeal, and it has followed that decision in a later case, Hook v. Hook & Ackerman, Inc., 213 F.2d 122" court="3rd Cir." date_filed="1954-05-12" href="https://app.midpage.ai/document/hook-v-hook--ackerman-inc-234121?utm_source=webapp" opinion_id="234121">213 F.2d 122; and Mr. Moore accepts their view.
Section 1291 provides for appeals from final judgments of all sorts, necessarily including an appeal from a final judgment denying a permanent injunction. Section 1292 allows appeals from four different kinds of interlocutory orders,
It is of course true that the motion is not a substitute for a trial, against the possibility of which courts — ourselves especially — have been solicitous to protest. There always remains the high hurdle over which the plaintiff must leap, who would secure such a judgment: i. e. the record, as it comes before the court, is of necessity limited to evidence that can be put into writing or contained in exhibits; and, as we have never tired of saying, what is left out may be, and frequently is, the most important part. Besides, at least in actions triable to a jury, the handicap is greater even than this; for the court must refuse to decide any issues whose answer admits of reasonable doubt. Therefore, to say, even though the denial has been because there was a “genuine issue of fact,” that nothing is decided, and that nothing can be settled, appears to us an untenable generalization. That everything is not decided is certainly no objection, else denials of preliminary injunctions would also be ex-
Finally, although a preliminary injunction gives the plaintiff relief until the trial, it insures him of nothing more, and he cannot arrange his affairs upon the basis of any protection after the trial. That uncertainty, which may last over a year, may be nearly as serious as the absence of any protection at all. It appears to us therefore that the considerations that presumably moved Congress in 1895
Motion denied.
. Moore, Federal Practice, Vol. 6, pp. 2321, 2322.
. Fishman v. Teter, 7 Cir., 133 F.2d 222" court="7th Cir." date_filed="1943-02-09" href="https://app.midpage.ai/document/fishman-v-teter-6886181?utm_source=webapp" opinion_id="6886181">133 F.2d 222, 223; Madeirense Do Brasil S/A v. Stul-man-Emrick Lumber Co., 2 Cir., 147 F.2d 399" court="2d Cir." date_filed="1945-01-09" href="https://app.midpage.ai/document/madeirense-do-brasil-sa-v-stulman-emrick-lumber-co-1472076?utm_source=webapp" opinion_id="1472076">147 F.2d 399, 405; Dewey v. Clark, 86 U.S. App.D.C. 137, 180 F.2d 766" court="D.C. Cir." date_filed="1950-02-06" href="https://app.midpage.ai/document/dewey-v-clark-224610?utm_source=webapp" opinion_id="224610">180 F.2d 766, 772; Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269" court="8th Cir." date_filed="1950-04-25" href="https://app.midpage.ai/document/hurd-v-sheffield-steel-corp-224796?utm_source=webapp" opinion_id="224796">181 F.2d 269, 271.
. 28 St. at L. 666.
Dissenting Opinion
(dissenting).
As the opinion emphasizes, the decision herein is based upon a very literal reading of the statute, 28 U.S.C. § 1292(1), without looking to the consequences.
In words which have now become classic, we have been admonished that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 2 Cir., 148 F.2d 737" court="2d Cir." date_filed="1945-06-04" href="https://app.midpage.ai/document/cabell-v-markham-1503769?utm_source=webapp" opinion_id="1503769">148 F.2d 737, 739, affirmed Markham v. Cabell, 326 U.S. 404" court="SCOTUS" date_filed="1946-01-14" href="https://app.midpage.ai/document/markham-v-cabell-104206?utm_source=webapp" opinion_id="104206">326 U.S. 404, 409, 66 S.Ct. 193, 90 L.Ed. 165. In the full spirit of this precept the Third Circuit, in five decisions representing the unanimous views of at least six of the judges comprising that distinguished tribunal, has reached what to me is a convincing interpretation of this statute. Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 181 F.2d 160" court="3rd Cir." date_filed="1950-04-05" href="https://app.midpage.ai/document/morgenstern-chemical-co-inc-v-schering-corporation-224748?utm_source=webapp" opinion_id="224748">181 F.2d 160, 162; Albert v. School Dist. of Pittsburgh, 3 Cir., 181 F.2d 690" court="3rd Cir." date_filed="1950-04-12" href="https://app.midpage.ai/document/albert-v-school-district-of-pittsburgh-224933?utm_source=webapp" opinion_id="224933">181 F.2d 690, 691; American Airlines v. Forman, 3 Cir., 204 F.2d 230" court="3rd Cir." date_filed="1953-04-08" href="https://app.midpage.ai/document/american-airlines-inc-v-forman-judge-slick-airways-inc-v-american-airlines-inc-231682?utm_source=webapp" opinion_id="231682">204 F.2d 230; Hook v. Hook & Acker-man, Inc., 3 Cir., 213 F.2d 122" court="3rd Cir." date_filed="1954-05-12" href="https://app.midpage.ai/document/hook-v-hook--ackerman-inc-234121?utm_source=webapp" opinion_id="234121">213 F.2d 122, 128; District 65, Distributive, Processing and Office Workers Union of New York and New Jersey v. McKague, 3 Cir., 216 F.2d 153" court="3rd Cir." date_filed="1954-10-26" href="https://app.midpage.ai/document/district-65-distributive-processing-and-office-workers-union-of-new-york-and-new-jersey-formerly-local-65-v-mckague-234874?utm_source=webapp" opinion_id="234874">216 F.2d 153. Quoting from the Supreme Court’s interpretation of the statutory purpose “to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541" court="SCOTUS" date_filed="1949-06-20" href="https://app.midpage.ai/document/cohen-v-beneficial-industrial-loan-corp-104695?utm_source=webapp" opinion_id="104695">337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, it points out that in neither instance was this the situation upon the denial of the summary judgment, but rather it was as though the case had been continued for additional evidence. Thus under this interpretation we properly look to the nature of the decision, instead of relying merely on an arbitrary principle of complete appealability quite foreign to traditional federal policy.
It will not do, in my judgment, to rest upon an analysis and conclusion that denial of summary judgment must always mean more than the Third Circuit finds in the cases before it. While such a denial may so operate when the trial judge so intends, there is nothing in the stated rule to compel this result; and the actual trend — under appellate prodding in which my colleagues have been prominent participants — is surely the other way. As we can see from the trial court opinions, the nearly universal denial of all summary judgments, except upon adjudication of issues of law, is customarily reached by repeating appellate admonitions against “trial by affidavits” and relying upon the judicial gloss that the “slightest doubt” requires denial of the motion.
In the light of this developing tradition, appellant’s most cogent argument seems to me to be that Judge Smith actually did decide so much of the merits as to provide the requisite degree of sub
There is a paradox about our result here which cannot fail to intrigue. Our past decisions critical of the summary judgment suggest that rarely, if ever, will we be prepared to reverse the action of a trial judge in calling for a full trial. Hence we are now inviting a considerable flood of appeals which, like the one before us, seem obviously doomed to failure.
The suggestion in the concurring opinion that adherence here to the traditional federal practice against interlocutory appeals would result somehow by sheer ritualism in a waste of time is not convincing. That a plaintiff who has shown no real interest in an injunction pendente lite should be stimulated thereto by a denial on the merits of his demand for final judgment does not seem likely. But if he is, then we should hear him; my position, like that of the Third Circuit, is not that we should limit the Act of Congress, merely that we should not expand it.
. Even a literal reading may suggest doubts; the continued stress in the title and four subsections of ■§ 1292 upon “mterloeutory” orders or decisions — contrasting with the “final” decisions of § 1291 — points to the grant or refusal of a remedy pending the litigation, rather than a refusal to grant the final judgment asked for.
. See cases and authorities cited in the Advisory Committee’s Note to the proposed amendment to F.R.C.P. 56(e), Preliminary Draft, May 1954, pp. 50-52, and Wright, Amendments to the Federal Rules, 7 Vand.L.Rev. 521, 546(1954).
. In Morgenstern Chemical Co. v. Scher-ing Corp., supra, S Cir., 181 F.2d 160, 168, Judge Hastie acutely draws attention to the close interconnection of the motion to dismiss under E'.R.C.P. 12(b) with the motion for summary judgment which it usually becomes on submission of “matters outside the pleading,” and points out the direct authority under E'.R.C.P. 12(d) for deferring determination of the former motion until the trial.
. Possibly the door is opened too wide here and there should be some limitation, as by the certificate of the trial judge; ef. F.R.C.P. 54(b) and the legislation recommended by the Judicial Conference, Report 1953, 27. But that is a matter of legislative policy.
Concurrence Opinion
(concurring).
1. Plaintiff’s complaint prayed both a preliminary and a final injunction. Its motion sought the relief which it asked in its complaint. When a plaintiff, without seeking summary judgment, makes a motion for preliminary injunction, if the judge refuses to grant it, because he considers insufficient affidavits offered by plaintiff, an appeal of course lies under 28 U.S.C. § 1292. I think there should be no different conclusion merely because plaintiff seeks the preliminary injunction by means of a paper which plaintiff calls a motion for summary judgment.
A contrary conclusion, by sheer ritualism, would waste time. For plaintiff, the next minute after the denial of the summary judgment motion, could present the same papers unchanged except for a new label, “Motion for a preliminary injunction.” For that reason, I disagree with Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 181 F.2d 160, where the court said at page 162; “Nothing has occurred in or as a result of the denial of the motion [for summary judgment] which precludes plaintiff from seeking a temporary injunction in accordance with established procedure if he believes immediate injunctive relief is necessary and proper.”
2. Ordinarily an order denying a summary judgment is not appealable. It is suggested that the consequence of our ruling here will mean that, if only a plaintiff includes in his complaint a prayer for a preliminary injunction, any order denying a summary judgment will become appealable, and that thus the-courts of appeal will be faced with many frivolous appeals. But many an appeal from a denial of a motion, explicitly labeled a motion for preliminary injunction, is frivolous — because of the trial judge’s wide discretion in such matter— and receives short shrift when the appeal is heard on the merits.
3. The case for appealability here, even as to the denial of a final injunction, is peculiarly strong and exceptional. For the judge did not refuse to grant such an injunction on the ground that there was a triable issue of fact, but on the basis of his legal conclusion that, even taking the evidence as if presented at a trial, plaintiff had not shown that it was entitled to such relief.