Harvey Lawrence Burkett v. Shell Oil Company
487 F.2d 1308
5th Cir.
1973
Check Treatment

*2 GODBOLD, Before COLEMAN and Judges, GORDON, Circuit District Judge. GORDON, Judge: JACK M. District appeal provides This a clear illustra- relatively . simple legal tion of how issues easily complexities can be mistaken for magnitude through of the first a befud- presentation dled facts. plaintiff-appellant matter contests the plain- denied reargue request tiff’s previously two motions decided the district court. Appellee has filed a motion to dismiss appeal, which, pursuant to this order, Court’s has been carried concur- rently with the case.

Upon completing prerequisite judi- autopsy chronological cial devel- opment proceedings action, we grant appellee’s motion to dismiss the present appeal. Furthermore, prod- supports uct of such a detailed review judgment denying the district court right reargue mo- tions.

Once a concise statement of facts is related, procedural Gordian knots practically Hence, unravel themselves. importance of the factual circum- stances in this action dictates in- an depth sundry examination of the trans- actions, judicial non-judicial, both transpired that have far. thus pri- action at from a bar stems by appellant, vate antitrust action filed pursuant Lawrence 15.U.S.C. in the United Dis- § States trict the Southern District (Southern Division) Alabama [herein- and to feasible district court] after referred join- proceed without the case accordance with 1969. In December par- oper- contract, der the trustee in Burkett written Mobile, plaintiff.” ty court heard gasoline The district station service ated a argument Sep- auspices motions defend- oral these under the Alabama *3 1, plain- February 4, 1970, and to take Company tember elected from ant Oil Shell that' January 13, tiff’s submission 1965, Plaintiff motions under 1966. until 19, September days later, damages date. allegedly Fifteen substantial suffered granted 1970, defend- court during contractual the district eleven-month-old summary for relationship motion Shell Oil ant Shell’s first with defendant against Burkett; damages judgment for Company. A claim such January 1966, to the antitrust lay 13, un- title concluded that dormant from bankrupt- passed plaintiff claims to the trustee his intentions til manifested against cy, deprived Burkett which transfer pursuing of action this cause filing standing mention made by aforemen- to sue. No suit Shell During date, 3, motion court of Shell’s district tioned December 1969. summary judgment pe- period, plaintiff founded on the a for filed this interim 1967, 23, bankruptcy written or of Burkett’s motion on release June tition joinder. though require plaintiff did include Burkett not against among claims assets his request- 1970, plaintiff 6, On October Company that now constitute Oil Shell order court issue an ed discharged lawsuit. Plaintiff this Burkett, plain- substituting himself, as 16, February bankruptcy 1968. on tiff, suing for the use William Grav- twenty-two Approximately after months trustee, ey Smith, of the instead discharge, initiated this his Burkett Burkett, plaintiff, Harvey Lawrence present litigation. antitrust suing right. individually and in own his filing Shortly com- after (October day 7, 1970),' plain- The next Company plaint, Oil filed its first Shell lodged appeal from final tiff his (Febru- judgment summary motion judgment Sep- against him entered on ground plain- 1970) ary 23, on (hereinafter 19, tember 1970 referred having sponte tiff, bank- commenced sua Appeal Absent writ- having ruptcy proceedings ad- been reasons, ten on No- district judicated bankrupt, did have a not 1970, plaintiff’s 13, vember mo- denied capacity type of action this to maintain party plaintiff tion filed on party in interest and was the real 6, Apparently prompted 1970. alleged to the antitrust claim since title by the district denial mo- court’s passed plaintiff’s in bank- to the trustee party plaintiff tion to substitute (April ruptcy. Two months thereafter plaintiff action, Burkett, antitrust 23, 1970), a mo- second Shell submitted 18, subsequent 1970, November to the summary judgment tion for alter- filing of the in the civil action given plaintiff de- had native basis 71-1027), filed in the bank- of the fendant a written release Shell ruptcy parte court an ex motion present in the lawsuit. Defend- claims reopen bankruptcy proceed- summary judgment ant’s motions for ing appoint In Matter a trustee 18, argued May 1970, and were Burkett, Bankrupt Lawrence district taken under submission 24,976) (Case referred [hereinafter court. 24,976] and to to as re ap- (a) join interval, said trustee another month allow After two 1970) peal; (b) Bur- (July motion to assume control over filed a person require antitrust action Shell Oil trus- kett’s “to [the (c) pro- Company; file his consent bankruptcy tee in closed ceeding] just adjudication”, suit be continued antitrust needed for (Burkett) present plaintiff for the and, alternatively, order “to Sep- bankrupt’s Court, on Another benefit of the estate. use and per curi- reopen de- tember affirmed estate was summary judgment am Decem- court on nied granted by pursue favor the district court did not ber Burkett 1970) Company (September Oil Shell review of and reiterated lack of stand- denial of this motion. alleged for his cause to sue antitrust Through granted an extension of time Burkett v. Shell Com- action. Oil court on Novem- (5th 1971). By pany, F.2d Cir. ap- ber the certified record on way opinion, of a its peal for- was not Appeal noted what No. 71-1027 Ap- warded Clerk of Court of outstanding felt be several motions peals January the Fifth until Circuit by appellant, yet decided to be Although had submit- *4 court, to wit: bankruptcy to motion ted the his Appellant’s brief to this Court rais- parte reopen an ex order to his es- es two additional issues: “whether bankruptcy tate in on November appellant should be time to allowed (Oc- plaintiff previously had filed proper party substitute the trustee as 19, 1970) tober a motion with dis- the litigation,” and handling trict court claim the antitrust bankruptcy “whether the court should certify to in the record Burkett’s bank- be directed to claim or disclaim this (In ruptcy 24,976) case re No. of action cause and the' order either bankruptcy proceeding in order that Bankrupt or Trustee or both to of Burkett in be included the certified proceed appears with action.” this It appeal (Appeal 71-1027); record on No. appellant’s from brief and the record certify motion the latter to the record from the district that both bankruptcy 24,976 granted ease No. questions pending presently these are by agreement on December 1970. before the district court as motions. 24, 1971, appel- about On or March (cid:127) is, therefore, properly Neither issue Appeal lant-Burkett brief in filed his before Court. this Burkett v. Shell legal de- No. 71-1027. The issues to be Co., Oil 448 F.2d at 1.n. Appeals Ap- cided Court of in Appellant request reargument did not peal 71-1027, suggested No. as to the Appeal the Court of before in appellant brief, in his 71-1027 in accordance with Rule stated as follows: 40(a) of the Appellate Federal Rules of appellant A. Whether has 6, 1971, Rather, on Procedure. October right prosecute anti- this nearly a Ap- month after the in decision right. trust action in his own peal 71-1027, Burkett’s counsel ad- right B, appellant Whether has a dressed to the district letter sue, right, own for the his thoughts which contained counsel’s over excess amount owed his meaning afforded above be creditors. quoted portions footnote. Pertinent. al- 2. Whether should be this letter read as follows: lowed trus- time copy I have received a 5th proper party tee Circuit’s decision in the case rendered litigation. this Shell, of Burkett vs. No. 71-1027. bankruptcy Whether should decision makes two reference reopened motions filed the Plaintiff which apparently court should to claim be directed were never ruled on or disclaim this cause of action Court. The 1st these a “Mo- order either or Require trustee tion to Joinder of Person bankrupt proceed or both with Adjudication” Needed for with Just this action. an Motion To “Alternative Order That motions, viz, to re- and Order two of his motion Joinder is Not Feasible (filed person July 27, quire This To Proceed Without Join- Case 1970) Bankruptcy of Trustee and the to substitute der (filed proper party plaintiff The second is a “Motion trustee as . Party prior Plaintiff” November 1970) Substitute Appellant alludes order. earlier footnote to the respectfully I ask that 71-1027) to advance your Honor the two motions set proposition. Appellant identifies hearing hearing; order a and also his brief is- necessity held on Bur- question. issues” consist sues “The renewing kett case III, issue, labelled issue same Bankruptcy 24,976 included in brief his earlier (B) determine whether reliefs 71-1027): (Appeal No. whether the dis- granted (C) as asked should be trict court should that motion. (filed proceeding reopened on November judge treated the afore- The district 18, 1970). However, caption correspondence a motion to mentioned brief issue subdivision require motions to reconsider following small semblance to the bears party plaintiff. joinder and to substitute argument, consequently, textual *5 entry November In a dated minute misleading. confusing if not somewhat 1971, it court that the district recited Appellant employs inap- issue an this previously had ruled on these two mo- propriate springboard from which to joinder prior tions, the motion argument concerning launch his mo- subsequent motion to substitute require joinder person, tion to filed granted motion the time it defendant’s July 27, on summary judgment. Inasmuch appellant Albeit im selected an by summary judgment affirmed was proper forum fi in which to attack the (Appeal No. 71- ruling nality of district court’s 1027) re- and none of the issues were person, require the motion to consideration, manded for further with desire to achieve or maximum plaintiff’s court district concluded that clarity ganizational our amidst section motion to merit. reconsider lacked analysis section warranted this 13, 1971, plaintiff December filed On case, argument by shall we review said appeal notice from the district appellant juncture. Appellant’s at this 26, order court’s entered November 1971 simple contention is court district —the (hereinafter Appeal to as No. referred plaintiff’s ruled on never motion to appeal (Appeal It is this No. require joinder. place To motion in this Court, 72-1065), presently before chronological perspective, it was filed on upon; that we must focus our attention 27, July and was received nevertheless, myopic would if we be district court after court had taken appeal (Appeal were to consider No. this under submission Shell’s two motions 72-1065) in a vacuum. Since judgment summary (May 18, 1970), of the November prior ruling granted but to the this represents many only one of (September 1970). latter relief Oral pieces procedural jigsaw puzzle, argument require join on the motion to chronological picture, the total from the der was heard the district court on original time the antitrust claim was September 4, Hence, district (Appeal latest studying court had the benefit of de 72-1065) bar, at must examined. be judgment summary fendant's motions in light appellant’s his brief require to this Court motion to 72-1065) joinder; plaintiff-appellant contends we consider it more than mere happenstance the district ruled on never the district appellant’s argument It is not difficult to visualize how our mo- oral heard rendering predecessor panel could have become en- its deci- before tion two weeks tangled judgment allowing summary a web confusion created in fa- sion plaintiff’s misleading principally by district court When the vor of Shell. outright patently judgment summary mo- erroneous statement granted Shell’s 71-1027) require join- his brief that the tion, appellant’s motion to passed concomitantly motion substitute was never decided unfavor- der ably upon Assuming court, compounded arguen- mover. by the fact that this appellant’s motion contained do, survived motion language referring summary judgment (Sep- critical motion district require joinder. 19, 1970), the district court’s tember appellant’s to substi- motion Moreover, plaintiff chose not to (filed and decid- tute on October file a alter or amend the dis 1970) was determi- ed on November summary judgment pursu trict court’s paragraph appel- In the first native. 59(e) ant to Rule of the Federal Rules party plain- motion to substitute lant’s Lastly, of Civil Procedure. the Court of suggested tiff, district Appeals (Appeal affirmed at the court that time it entertained judgment summary the district court’s summary judgment the aforementioned September dated absent require joinder pending concerning reservations correetitude district court before the approach appel of the district court’s invited to the district court’s attention require joinder.1 lant’s motion apparent- the fact that the by ap- cited misstatement above ly yet had not acted on the earlier mo- pellant Appeal brief in 71- below, will As tion. discussed single is not the instance in such denied, summary district court in a but Appellant employed case. from has cogent fashion, motion to inception lawsuit, of this at both party plaintiff on November *6 appellate levels, trial and unortho- If, 13, reason, July the misleading Regard- procedures. dox and 27, 1970, require joinder motion to sur- appellant’s less of conduct whether summary judg- vived the district court’s proceedings was these result of cal- the Sep- ment in favor of defendant Shell on procedural gamesmanship culated or was 19, 1970, tember the district court’s ac- purely product confusion, a of it is evi- denying tion on November type misguidance dent that of is the appellant’s motion party to substitute prime procedural present source the plaintiff, equally constituted an effective record, morass. An examination the requested appel- denial of the relief suitably appellant’s capsulized by the require joinder, lant’s earlier motion to appendix, immediately own reveals particularly in view of the fact that the fallacious character dry sun- seemingly incorporated the arguments. Thus, necessary thrust of his earlier motion into the text digress momentarily we to isolate of his later motion analyze examples to substitute. and various of erro- (Appeal (7th 1973) ; Toucey Inasmuch the Court of v. Life Cir. New York Co., (8th 1940) did not remand case to the Ins. 112 F.2d 927 cert. Cir. per opinion, granted, 643, 440, district curiam 61 L.Ed. 311 U.S. 85 S.Ct. per opinion 410, 538, 833, aff’d, footnote to the curiam did not U.S. 61 85 313 S.Ct. controlling appellate 596, 1507, constitute order. 61 As L.Ed. vacated 313 U.S. S.Ct. suming 938, 1549, 118, rev’d, the moment the case had 85 L.Ed. 314 U.S. 62 remanded, appellate ; Atchison, 139, (1941) been court’s footnote S. Ct. 100 86 L.Ed. per Ry. 768, Ballard, curiam decision not be the & v. F.2d could T. S. F. Co. 108 legal (5th Cir.), denied, 1012, law of the case th" as to the issues since F.2d cert. reh. 109 clearly 646, 1096, denied; substance footnote was erroneous 60 S.Ct. 84 L.Ed. 310 U.S. (1940). and adherence to it work a Lincoln Nat’l Life Ins. would manifest 1413 Cf. injustice. (5th 1962). Habig, Roosth, United Cir. States v. F.2d 57 v. 306 F.2d 110 474 Co. allegations part have to summary judgment the district factual court reconsider its neous September appellant. 19, 1970; under Rule 59 the Federal previously major stated, As three is- Procedure, petitioner Rules of Civil appellant in the were raised sues days judg- entry has ten from the 71-1027). appeal (Appeal first The ment, which, case, Septem- made Reference to first issue bifurcated. 29, 1970, the ber last available date. On per opinion curiam the footnote 7, day 1970, one after (Appeal 71-1027) indicates that substitute, appellant filed his motion to only panel in the first resolved lodged a notice of from sum- issue, is, the entire first both sub- judgment against mary entered him proposed by issues, appellant. The language characterizing appeal may an Since taken thought panel motions which the two only judgment, from a final pending been then to have before granting motion for Shell’s verbatim from court is taken district judgment summary September 19, language appellant used to describe judgment. constituted a final third second and issues his brief. Procedure, Federal Rules of Civil Rules per curiam of this Court 56; 1291; 28 U.S.C. Poss v. § 71-1027) unconditionally (Appeal No. Lieberman, (2nd Cir.), 299 F.2d 358 of the affirmed district denied, cert. 370 U.S. 82 S.Ct. n — summary judgment in favor of Shell (1962). 8 L.Ed.2d 810 summary Once a Company- Oil save judgment entered, has been no further issues two determined proceedings in the action are feasible. properly ripe ad- Wright Miller, & Federal Practice (1) judication: motion to and Procedure at 416. § proper party plaintiff, trustee as (2) whether also note should be We that the motion reopened. substitute, The Court filed and No. 71- decided subse 1027) segregated quent summary judgment ruling these two motions be- ap- appeared September cause it to the Court “from is not of the one special pellant’s brief and the class of destroy from the record motions that can finality ques- preceding district court that summary both of these judgment, and, presently pending tions are doubt, before without the mo reopen, entirely tion as motions.” This state- an dif *7 judicial produced proceeding (In ment ferent contained as well as mul- re Bur tiple kett, 24,976), errors fact and Case No. of law. Both mo- cannot disturb appellant finality subsequent summary judgment tions of the of were the granted to decided favor time court de- of Shell. 9 Moore’s summary judgment Practice, [3], fendant’s motion for Federal 110.08 at 120. ¶ September 1970, 19, and, on an ad- as Shortly thereafter, 13, on November timetable, dendum our to factual it must 1970, appel- the district court denied pointed rulings out that on the same Although lant’s motion to substitute. motions, the two motion to substitute appeal did any not file an reopen, the motion and prior to were issued Rule 59 motions from 13, the November appeal to date record on 1970, order, he included the motion to 71-1027) (Appeal No. was docketed with designation substitute in his of record Fifth the Clerk Circuit Court of appeal (Appeal 71-1027), No. but Appeals, and, prior course, re- failed to include the district court’s or- spective per opinion Septem- curiam denying der that While the no- motion. 13, ber 1971. appeal prior tice was filed to the dis- Appellant’s 6, ruling 1970, motion to trict the motion to sub- represents attempt stitute, ruling substitute a belated such issued almost was fication for its that before certified record inclusion fact months two bankruptcy was relevant forwarded ease was Moreover, proper 71-1027). in- determination of the issues court appeal. Appeals the civil Addi- Court volved in action in his brief tionally, 1971), appellant appellant apparently (March 24, failed to summarized stating proceedings inform the that bank- the unequivocally earlier trial reopen ruptcy denied motion to that the trial court never his days substitute, despite on his motion on December five before ruled appellant’s tacit another the certified record was mailed to the concession in Appeals trial section the same brief that erroneously decided the motion A direct on the December import bankruptcy further substitute. Of plaintiff-Burkett, plainly fact that not stated his executed reopen permitted by Bankruptcy Act, affidavit his estate 11 U. (Case bankruptcy 24,976) dated did nor Burkett move for S.C. § reargument. 18, 1970, proceeding November his motion to A that collaterally the antitrust action was cannot be attacked or re- opened. Valley any Co., denied the district court. Bumb v. Electric event, any appeal (9th properly 1969). 419 F.2d there was Cir. Appeal Court in

before this No. 71-1027 per opinion (Appeal curiam The regarding appellant’s motion to substi- September 13, was issued tute. Appellant elected not to seek a re- arranged hearing, appellant, the facts are in a Once time nor did man- sequence, relatively ner, it becomes facile to invite to attention of the Court legal comprehend maneu- follow and vering of enly fact that it mistak- had transpired until now. that has assumed certain enu- issues point time, however, plaintiff At this in the merated to its footnote change procedural pending decided vehicle still on motion before the race, Instead, the middle from a civil district court. waited bankruptcy pro- period day antitrust action to a until after the fourteen time plaintiff neglected pro- ceeding, petition rehearing but to file a in which updated program pursuant vide containing with an observers Rule 40 of the Federal Rules thereby switchover, Appellate expired, mak- of had Procedure appear then, 6, 1971, appellant entire event chaotic and on October almost indeterminable. mailed a letter district court compounded further the confusion. The issue to whether paragraph The reopened first let- should be purported to presented ter to the district court motion, context of holding per outline the curiam dated November to the bank 71-1027). Appel- opinion (Appeal ruptcy 24,976, court in In re Case No. judge Burkett, Bankrupt. lant indicated to Lawrence Appeals, in a to its the Court That was denied the bank decision, ruptcy referred to two motions court on December *8 by were decided court. reopen never the district on the motion not to is specifically, appellant appellant’s appendix identified in More listed for the (1) simply to re- those motions as the motion claim mo antitrust because July joinder person (filed quire reopen of bankruptcy tion to was made (2) entirely proceeding. 1970), and the motion to substitute in an Augmenting different (filed plaintiff party confusion, ap a however, when, fact, only 1970), the motion pellant parte to included this ex motion to actually court, had been mentioned reopen, bankruptcy substitute filed with the opin- per designation footnote curiam to his of record on ; reciting to in the justi- other motion referred (Appeal 71-1027), ion the No. as course, was, It is that the first the motion true record

footnote appeal (Appeal bankruptcy 24,976, reopen have case No. re could disposition Bankrupt. to the court the revealed motion the motion to substitute and paragraph of the Octo- In the second reopen had that occurred the dis- letter, appellant’s 6, 1971, counsel re- ber notwithstanding court, trict the likeli- judge quested for that the district set hiatus, especially hood of a factual with hearing is, motions, that the mo- the two respect bankruptcy proceeding. to the require tion to motion to requested and the It is understandable that the earlier concurrently, substitute, may panel principally have relied on the hearing judge that the a set accuracy representations made necessity of bankrupt, Burkett re- his brief without in. newing reopen his motion to filed delving study into a in- detailed This case. latter motion Nevertheless, panel record. tricate pertaining to Burkett’s case original per (Ap- in the curiam decision was the second motion cited ear- peal 71-1027) essentially was cor- panel opin- lier in the footnote to their rect its statement in the last sentence (Appeal 71-1027). However, ion appellant in the footnote that motion sub- present did not reopen stitute and the motion to reopen to the district court in the con- properly Ap- not before the Court of per text of the curiam although peals, was mistaken opinion. Rather, merely asked in its belief that these issues were then hearing necessity a of renew- pending before the district court. reopen his filed in the bankruptcy proceeding. Therefore, forged path, Now that we have treating action of the through district court in possibly can, clear as we this appellant’s labyrinth counsel letter as motion procedure, of facts and entirely appropriate; readily to reconsider evident, journey, is after ap- soundness of the district soiled, that has been if not proach handling muddied, practice guiding letter is rein- first, by forced astray twofold: through the fact employment courts the district ap- misleading procedures had ruled on all occasionally pellant’s motions, second, by statements, the fact erroneous either commis- there was no remand follows, therefore, sion omission. It prior ap- principles as a result of the equity strongly dictate peal (Appeal plaintiff, seeking who is advantage take by of a situation attained might point We . out that an available questionable the use of methods. alternative would have been the dis- appellant’s trict court to inform On 1971, plaintiff counsel December of his erroneous a seeking observations and of notice of 72-1065), inherent mistakes in the footnote to the review of the district court’s or- per der, curiam issued No. 71- on November which 1027), thereby conveying reargument denied mo- proper Though status of his actions. tions. This the November comment captioned is to indicate that dis- a motion to recon- trict improper approach chose an require join- sider motion to appellant’s letter, rather, recog- but der and party the motion to nize plaintiff, that the mere fact proper caption when the classifying court selected the route should include the motion to substitute appellant’s letter a as motion reopen to recon- and the motion bankruptcy, *9 confusing sider should not composition have the effect of the add- of greater ing legal dignity plaintiff’s letter to the district position. appreciate court allows us to the how

1317 yet that it to be determined made such a sion at court could have level whether trus- in nomenclature. mistake of tee or someone else on behalf Regardless caption, how bankrupt standing had and estate should ever, plaintiff are that we pursue panel claim. Had not reargument seeking circuitously on a is misapprehension might under a been it September 13, the merits of updated, have ordered record all as- per curiam decision No. 71- pects consolidated, of the matter and 1027) by Court, such and appeal settled in one then issue reargue attempt made this motion is who, anyone, should if assert the cause untimely. 40(a) Rule of the Federal simply Rather than affirm- action. Appellate Rules of Procedure. Further might ing it have remanded to the also more, plaintiff unpropi cannot obtain District Court for further consideration tiously per review of this curiam Court’s who, anyone, proper if would be opinion (Appeal 71-1027) by appeal plaintiff. by supervisory Or dictum or unappeala from the district court’s given guidance order it could have some denying reargument. ble Pfister employed by to the District to be Corp., v. Northern Illinois Finance 317 upon it reconsideration of the motions. 144, 149-150, 133, 137-138, U.S. 63 S.Ct. short, it could have entered such or- (1942); Diatz, 146 L.Ed. Sobel v. might bearing justice require, ders U.S.App.D.C. 329, (1951). 189 F.2d 26 likely mind that the most beneficiaries also, Taylor Washington See v. Terminal any recovery plaintiff’s on cause of Co., U.S.App.D.C. 110, 409 F.2d 145 action would be creditors (1969). bankrupt estate. foregoing Based on the reasons of misunderstanding But because law, appellee Compa- fact Shell Oil appellate level, subsequent at and the ny’s motion to dismiss the at bar response (which by the District Court and, accordingly, hereby well taken is is merits was not a reconsideration granted. ground it al- but denial had Dismissed. ready motions), denied the followed majority’s ap- action this second GODBOLD, Judge (dissent- Circuit panel peal, the issues first ing) : thought not reach can never have need Judge With deference Gordon’s review. painstaking analysis, I take a different panel The is to be faulted. first simpler perhaps simplistic— and much — confusing, The facts are records Certainly view of the case. we are not fragmentary, papers barely some of the compelled appeal, to dismiss this and I legible, help. and the briefs of little go would not do so but rather would Judge history spelled precise out The the merits. ap- not of what is Gordon is result sought It is clear pick to all that parent Burkett but of laborious shovel by a series of motions part. that a cause The work is to be action faulted, majority Shell should asserted and the do that with party plaintiff whoever vigor. They however, correct overlook, —by chargeable himself without trustee with the same Shell party, by as a knowledge himself with facts as was joined, suing the trustee beneficiary himself counsel, is the of an trustee, the use of the (on or appeal) the trustee which affirmance first alone with the estate re- out but knocked Burkett opened. predicate in the first which contains a recital only question considered the of whether that Shell knew to be incorrect. Shell individually standing Burkett perceived had duty as- it had no to call to cause, acting impres- sert deciding panel’s under the attention that *10 Having was not accurate. speak, that, it then considered failed enjoying the benefit of uncon-

while affirmance,

ditional its silence was nei- urging

ther bar nor hindrance dismis- thereby appeal, of the remov-

sal second possible plaintiffs. I am not other dissenting

willing say one-judge in a say,

opinion, and I do not that Shell’s improper. say But I do

actions were upon not confer af- that we need Shell from its silence in

firmative benefit judicial of what it knew to be a face misconception posture overall

the case.

Perhaps the cause of action should all, under

be asserted at or asserted, if

law cannot now be assert- may lacking wholly

ed it merit. ought

But which to be these are matters by judicial decision,

settled not mis- victims, any,

chance. The if there are bankruptcy.

are the creditors America,

UNITED STATES Plaintiff-Appellee,

v. JOHNSON,

Walter H. Defendant- Appellant.

No. 73-1225. Appeals,

United States Court of

Fifth Circuit.

Jan.

Rehearing Denied Feb.