*1 Aрpeals United States Court McLAUGHLIN, Before KALODNER Third Circuit. Judges. GANEY, Circuit 20, Argued Sept. 1962. 13, Dec. Decided 1962. GANEY, Judge. Circuit proceeding by way This is of in-
junction compel con- the defendant to relationship tinue a business which had' brought. existed at the time suit was The suit is based a violation of the August Day Dealer’s 8, 1956, in Court Act 1038, 1125, C. 70 Stat. 15 U.S.C. 1221—1225.1 §§ The business of been had buying selling of Ford automo- biles under a franchise from defend- 1933, years. period ant since On or about November the defend- gave ant notice of the termination plaintiffs’ ears as franchise to sell their Negоtiations February 3, of ing look- agreement par- toward between January 1962, continued until ties Kalodner, Judge, success, dissented. without and on that date complaint, first filed their alleged count of which that the threat-
ened termination the franchise was inequitablе unfair and and as such vio- Day Act, Dealer’s lation in alleged second count of which violation of the Robinson-Patman Act. stopped delivery of Defendant February 3, orders understanding complete For Paekel, (H. Philadelphia, Israel procedures herein, Pa. involved it is neces- Sautter, Lowenthal, sary James Fox, steps Daniel detail the various taken provides: 1. 15 U.S.C.A. § “An auto- manufacturer from Au- tomobile and after may bring against any good mobile gust per- dealer suit in act faith in engaged forming any complying automobile manufacturer in com- or with merce, any provisions franchise, in district court of the United or terms terminating, canceling, renewing States in the district which said man- or not Provided, resides, found, ufaeturer or is franchise said dealer: agent, respect any withоut amount such suit That manufacturer controversy, asserting and shall recover the dam- from de- not be barred shall ages him sustained and the such action cost fense of the failure of the good suit reason the failure of said to act faith.” au- dealer *2 plaintiffs applied for climaxing Court before us for The this the matter now injunction pending appeal was which an disposition. 26, 1962, April preju- denied without on Plaintiffs, first count pursuant to the presentation mo- a dice to the similar Jan- complaint, motion on filed a оf the appeal, a the mandate tion on new since injunc- 9, preliminary uary 1962, a for of this Court had not been returned hearing tion, fixed a court on which the 1962, April 27, the court below. On the January 18, January 22, 1962. On for again district denying an order court entered complaint 1962, the a motion to dismiss pre- plaintiffs’ request for a the ground by on the was filed the defendant liminary an which from sought injunctive was relief which it peal 30, April An- was taken on Day permissible Dealer’s under the not injunction pending other motion for an below, without in The court Court Act. appeal May 15, 1962, and was denied on judg- hearing facts, the entered on the matter is before this Court on now 1962, January 23, it which in ment on plaintiffs’ appeal the from the action complaint re- insofar as it the dismissed quested dismissing petition the court below in thе injunctive relief. preliminary injunction. for a judgment appeal was from this An testimony presented The dis- together in this the motion taken plaintiffs trict court in on behalf of was appeal. pending for an Court alleged connection with the bad faith of injunction pending for an The motion terminating the defendant in fran- the January 25, 1962, appeal denied on was balancing chise, and also related to the be the but this ordered equities and the consideration of rel- the hearing expedited on the merits at defendant, аtive factors involved. February 1962, injunction. 23, On the offering any without side evidence in its argument judg- Court, in this after case, moved the dismissal of for was reversed ment of the court below request preliminary injunction, for a Ford on Bateman March motion, which as has been indicated 63, Company, 302 F.2d wherein Motor heretofore, was allowed. Judge “To stated: late Goodrich by remedy provided the statute by make the made of fact were No accomplishing what is meant effective there- reference court belоw. accomplished, think that suggested to be we by denial the court to is the findings help keeping equity his dealer needs by plain- of fact submitted going legal is his claim business while ground tiffs, court was that the on the damages being A tested. for adopt of insuffi- them because unable to years acquired franchise has after his proof at The basic fact thereof. cient away and his ob- been taken business not contract here is whether issue who, is consolation to one literated small by the de- faith terminated here, had a Fоrd franchise since terminated, fendant, it so if it was since 1933.” binding on the will not be “ * * * that, petition court held for re- The below defendant filed hearing during all of evi- Court and this arguments, finds 3, plaintiffs April 1962, this pendency, dence meet failed to have in the district court motion filed therеfore, and, required of injunction pending appeal. them A burden an ing hear- have and, as a fact that motion finds held this at the faith, coercion, suggestion, discrimina- prove bad it court’s was treated as irreparable tion, injunction. harm war- threatened for a Be- motion ranting receiving in- issuance of the denial fore notice of de- * * rehearing junction under law This petition fendant’s finding merely Court, court, ultimate April 18, the district no facts on which it 1962, pre- states an order court entered However, passing without liminary injunсtion. F.Supp. predicated. flatly position and this Circuit took correctness Westinghouse below, it is view court O’Brien v. Electric Cor- reached conformity poration, court, *3 incumbent the of 52(a), non-jury case, fact in with of Procedure Rule Federal after a motion injunc- refusing interlocutory that in tion, 41(b), dismissal was filed under are findings requisite. set forth the court must upon fact and conclusions law which The record here discloses factual predicates it v. its action. In Sims situation which would admit of a Greene, said, 160 F.2d this Court prоper by review the lower court mak- “ * * * temporary injunction is- ing findings of fact and conclusions of illegally findings sued no since of fact law in connection therewith. Kreiel- by and conclusions of law were made the sheimer al., Cir., v. Cohen et 4 252 F.2d by 52(a).” required court below as Rule 330. judgment The of the district court will Additionally, previous 1946 to the be reversed and the remanded Procedure cause to of Federal Civil Rule amendment to 41(b the district court pro- with directions to ),2 split au was a there ceed in accordance оpinion. with this among Circuits, thority Circuit the Circuit, holding, along the Fourth Judge KALODNER, (dissent- upon to called court was that all the ing). question on the motion was decide majority The here reverses an Order findings of were law and hence fact no of the District Court which denied and Deрosit requisite. Insurance Federal dismissed 548; Mason, Corporation 115 F.2d v. sought by plaintiffs, the and the remands Century Film Fox v. Schad Twentieth ground cause to the District Court the Whitley 991; Corporation, v. 136 F.2d specially it to find the facts Sixth, Powell, 159 F.2d In the separately and state its conclusions of contrary Circuits, a and Ninth Seventh law. findings fact were and view necessary held disagree. I I affirm the would Gary Theatre to be found. Order for Court’s the reasons later Company Corpora v. Columbia Pictures stated. 891; tion, Bach Friden Cal 120 F.2d 407; culating Co., Inc., 148 Machine оpinion, reported District Court’s Equitable F.Supp. Life So (E.D.Pa.1962) Barr v. ciety Assurance at 204 sets States, findings the United F.2d 634. forth its facts conclu- However, Circuit, for this the confusion sions of law essary that is all that is nec- previous satisfy had obtained requirements to the 41(b) dissipated 41(b) to Rule 52(a), amendment amended,1 Rules as 2. 27, 1946, 52(a), provides amended, December amendment of as Rule 41(b), part: to Rule effective March following: “In an action tried added the “If an memorandum of de- jury filed, as court without the court the it will cision is be sufficient if the mаy findings of the facts then determine trier of fact and conclusions of law judgment against pear them and render the therein.” may plaintiff to 52(a) decline render “An examination of Rule dis- judgment objective until close of all the the evi- closes that its to have thе judgment judge findings If court renders dence. the trial set forth his of fact against plaintiff, the merits the court and conclusions of law in cases where he * * * provided findings make as shall in Rule trier fact where 52(a).” part upon his turns in decision a factual is, granting determination. That or re- 41(b), amended, provides fusing interlocutory injunctions, Rule as and at part: action, relevant including the final “If plaintiff’s the court renders at dismissal end of case * * against plaintiff, 41(b) merits the court shall under Rule ». The Rule provided 52(a).” place make as in Rule dоes not severe burden made the District to consider enable this Court Opinion “clearly are erroneous”. presented whether issue as here its discretion District Court abused plaintiffs’ position is that sum (1) show their evidence “tended to
.sought by the “showed, faith”; (2) defendant’s stat- Opinion, dispute In its the District fide at the least a bona (p. 36.0): defendant”; (3) ed “shows bad faith right stage plaintiffs which at this injunction which is “Since the sought equitable consideration”, and that merits aspects, mandatory *4 was the District Court for these reasons strong showing, making a burdеn of deny- guilty of of an abuse discretion heavy part plaintiffs, of is (cid:127)on the injunction ing since “the Mack, Inc. Gen W. A. v. See (cid:127)one. balancing equities” in favor of of was Corporation, 260 F.2d Motors eral (7th 1958). 86 Cir. Dis I of the all varia- would affirm the Order “To recite the semantic denying preliminary in phrases trict Court junction tions of the which courts sought describing plaintiffs for the chancel- have used does not useful that the record lor’s purpose. serve reason as made chore cannot enough say to that was It is disclose that the District Court ju improvident guilty As of an the issues are doubtful. was exercise Square Cor- It law that in Madison Garden dicial discretion. is settled said granting prelimi poration Braddoek, 90 “The of a or judi (3rd injunction 1937): nary rests in 927 Cir. the sound «* # ** cial court and will discretion trial well n has been so stated upon appeal ‘unless con not be disturbed trary-to application pre- upon an that liminary equity, the re some rule of is doubt to to judi improvident sult of an exercise of deny.* cial discretion’ ”2 "‘Accordingly, all Court, Opinion, evidence, re- District in its and consid- the ering arguments, plaintiffs viewed evidence which exhibits urge on de- plaintiffs “tended to show bad faith” this Court finds that have part required found that it was not fendant’s failed meet the burden quality and, therefore, of a to warrant issuance finds as of them preliminаry injunction. plaintiffs District fact have failed to that recognized Court, Opinion, also prove faith, coercion, in its discrimi- balancing necessity compet- nation, irreparable “the threatened ing equities” parties warranting between the the issuance of a harm preliminary plaintiffs’ evidence found that the under irreparable the threat to establish in- to be how- law. It understood jury warranting pre- ever, this no issuance that Court sense injunction. liminary deciding the case merits.” reviewing It is not the function of have not this substitutе that court Court to reverse to re- asked this weighing trial court evi- for the mand ing Court stat- “balancing equities” and the dence special fact and conclu- showing of a the findings fact- absence Nor ox law. have the sions “clearly were erroneous” аnd presented a contention that the factual trial definite, be part judge, amendment the contested pertinent of his foi- lie it is matters’, ‘need clear or memorandum and conclusions and after the make these brief, may Knitting Mills, ¶ of decision.” (3 Joseph 52.06 Cir. 1959). Bancroft [1] (2nd Ed. Inc., Moore, Sons Co. v. 268 F.2d 1951). Federal Practice Shelley “balancing equities” judicial that the considering threat of the issue of improvidently injury
irreparable
performed. here would the record
As earlier stated my opinion justify determina-
not in the District
tion guilty improvident ex- of an plain- denying the ercise of discretion in application
tiffs’ for a in-
junction. *5 Employers Nello MORROCCO and Mutu Wisconsin, Liability Co., al Insurance ppellants, tiffs-A Mich., Levine, Detroit, Plain Alvin L. Levine Zweig, Gary Detroit, Mich.,, Taback, & A. brief, plaintiffs-appellants. NORTHWEST ENGINEERING COM- PANY, Corporation, a Delaware Ruegsegger, Detroit, Mich., Dy- A. D. Defendant-Appellee. er, Meek, Ruegsegger Bullard, Detroit, Nо. 14938. Mich., brief, defendant-appellee. Appeals United States Court of CECIL, Judge, WEICK, Before Chief Sixth Circuit. Judge, BOYD, Dec. Judge.
PER CURIAM.
This is from a en- jury tered in the on a District Court ver- personal injury dict for defendant in a against action the manufacturer of a pullshovel.
Plaintiff, Morrocco,was a construction employed by worker a sewer contractor. engaged laying He sections con- pipe crete sewer into an excavation which pullshovel. pull- was made shovel, commonly which was known as a pur- “Northwest Back Hoe” been only had chased the contractor new three days prior accident. After ac- pullshovel quiring the contractor in- dipper stalled a hook back of sling to accommodate steel bucket pipe hook. which was affixed tachment, This at- pullshovel, connected to the