273 F.2d 729 | 2d Cir. | 1960
Lead Opinion
The amended complaint against six defendants alleges a conspiracy to violate the anti-trust laws and damage caused! thereby to the plaintiff in the operation; of the Erlanger Theatre in Philadelphia, It prays for a judgment against all the-defendants in the amount of $1,050,000' to be trebled in accordance with the-Clayton Act, 15 U.S.C.A. § 15, together-with costs and an attorney’s fee, and for an injunction. As against three of the-defendants, the appellees, the action was-, dismissed for lack of personal jurisdietion. The action remained pending-against the others. The judgment of' dismissal contained a direction, such as-, is provided for by amended Rule 54(b) of the Federal Rules of Civil Procedure,. 28 U.S.C.A., that there was no just reason for delay and that judgment be en~ tered in favor of the three defendants. Thereupon plaintiff filed timely notice of appeal. Amended Rule 54(b) expressly deals with multiple claims; consequent-the weiSht of authority has held that m situations involving multiple parties-. but only a single claim, a 54(b) certificate-is ineffective to make appealable a judgment dismissing the action against some-Parties but leavin& it; Pending against other
Appeals dismissed.
. Steiner v. 20th Century Fox Film Corp., 9 Cir., 1955, 220 F.2d 105; Nettles v. General Accident Fire and Life Assuranee Corp., 5 Cir., 1956, 234 F.2d 243; Brandt v. Renfield Importers, Ltd., 8 Cir., 1959, 269 F.2d 14. The Seventh Circuit indicated its agreement with this view in Hardy v. Bankers Life & Casualty Co., 7 Cir., 1955, 222 F.2d 827, although in that case no Buie 54(b) certificate had in fact been made; we do not read Morgan Drive Away, Inc. v. International Brotherhood of Teamsters, 7 Cir., 1959, 268 F.2d 871, as taking a different view. See also 6 Moore, Federal Practice § 54.34 [2].
Concurrence Opinion
(concurring).
I agree, but wish to add that in my opinion dismissal of the appeal accords with our recent decisions. Cott Beverage Corporation v. Canada Dry Ginger Ale, Inc., 2 Cir., 243 F.2d 795, 796; Schwartz v. Eaton, 2 Cir., 264 F.2d 195, 197; Seaboard Machinery Corp. v. Seaboard Machinery Corp., 2 Cir., 267 F.2d 178, 179. See also Gauvreau v. United States Pictures, 2 Cir., 267 F.2d 861; John and Sal’s Automotive Service, Inc. v. Jones Beach State Parkway Authority, 2 Cir., 267 F.2d 862.
On Petition for Rehearing.
Rehearing
Appellant has applied for rehearing of our decision of December 29, 1959, that amended Rule 54(b) of Federal Civil Procedure, 28 U.S.C., does not allow such a finding of finality as is required for an appeal under 28 U.S.C. § 1291 in a case “where a single claim against multiple parties is dismissed as against some but not all.” In the alternative appellant seeks an amendment of our order dismissing the appeal so as to permit appellant to proceed under the Interlocutory Appeals Act, 28 U.S.C. § 1292(b), alleging that it would have sought to do this in the first instance if the rule stated in cur recent opinion had been previously announced.”
The petition for rehearing is denied. However, since here “the question of jurisdiction was not obviously settled by prior decisions,” the appropriate course is, in dismissing the appeal under 28 U.S.C. § 1291, also to vacate Judge Palmieri’s judgment of September 1, 1959, for the sole purpose of permitting him to “enter a fresh decree” in which he may include the statement described in 28 U.S.C. § 1292(b) if in his full discretion he determines that such a statement is here justified. See Phillips v. United States, 312 U.S. 246, 254, 61 S.Ct. 480, 85 L.Ed. 800; Rorick v. Board of Commissioners, 307 U.S. 208, 213, 59 S.Ct. 808, 83 L.Ed. 1242; In re Cooks Motors, 1 Cir., 142 F.2d 369, 370.
It is so ordered.
