Jorgensen Bros. v. Commerce-Pacific, Inc.
294 F.2d 768
9th Cir.
1961
Check Treatment

*2 the appellant, except Steiner, supra, HAMLEY, and Before CHAMBERS would have asked in district court BOWEN, Judges, District Circuit and an order under Rule Judge. Federal Rules of The Civil Procedure. parties attention of the invited to PER CURIAM. 54(b), amendment of Rule effective on prej- is dismissed without July 19, 1961. udice. really agree I am that this is unable Denison-Johnson, basic claim of an from an Bros, against Inc., Jorgensen as granting denying injunction. or others, presumably against and is still did Commerce-Pacific Jorgensens’ in the district granting court. The point reach against Commerce-Pacific injunction. on the The dismissal ground and the Denison-Johnson I test the case what been dismissed as to Commerce-Pacific was issue ruled on and what was (The on the ruling, prayer of a claim. pleading so far itas concerns Commerce- I would not we would allow think that properly Pacific would be more denomi- if cross-claim had been dis- Likewise, nated a cross-claim. Com- missed for want of or failure merce-Pacific should be considered -just to state a because there was claim— party defendant.) third prayer for an 54(b), No order under Federal Rules distinguish In- v. Beneficial Cohen Procedure, U.S.C., Civil has been Corp., 541, dustrial 69 S. Loan U.S. entered. And our case of Steiner v. Ct. 93 L.Ed. Century Corpora- Twentieth Fox Film it is a true collateral order doctrine case. To negate is not. tion, Cir., this 220 F.2d would propriety of order here. Judge HAMLEY, (dissenting). Circuit right Appellant claim can no for a brought Denison-Johnson, Inc., interlocutory appeal, if such were missive against Ameri- suit necessary appropriate, because Foreign Industries, Inc., Bros. Getz can and of the this court are Jorgensen Co., Inc., and Bros. Defend- 1292(b). absent, 28 U.S.C. filed answer con- ant right appellant claims a But be here taining admissions, denials, affirmative the collateral order doctrine defenses, counterclaims. Plain- and five prayer the “counterclaim” a “counter-defendant” in tiff was named temporary for a for a Commerce-Pacific, all five counterclaims. 1292(a). junction. 28 U.S.C. Inc., party not theretofore the ac- tion, view, named an additional “counter- our Inc., defendant” in the two first counterclaims. U.S. applicable 249, 99 L.Ed. here. prayed prelim- The relief for included Although there is difference in the inary permanent injunctions against facts, principles there restated seem both counter-defendants to restrain them apply. engaging further combinations, illegal conspiracies acts, alleged as CHAMBERS, Judge, Circuit and in the counterclaims. An order BOWEN, Judge, adding District concur in thereafter Commerce- foregoing per Pacific, Inc., party curiam. as a to the action. having profits for an

Commerce-Pacific, been Inc., venture, removed a federal court to dismiss party, then made citizenship. im- the basis of it, asserted De- counterclaims proper *3 granted, fendant did not counterclaim or other- motion ap- preliminary permanent wise seek a injunction whereupon took per- Commerce-Pacific,Inc., peal. to from restrain forming contending any the that act in connection with the dismiss the operation it judgment that of All he the venture. final order is not a did was to move in the appealable 28 U.S.C.A. under is not Ap- staying interlocutory order action the order. as an ap- pellant arbitration. The court of these contests both peals ap- argues is dismissed the Su- the order and further that preme 1292(a) holding pealable Court affirmed that under stay appellant step order (1). majority was a in con- that holds trolling litigation wrong dismisses points and before the trial is three all court, interlocutory not appeal. the refusal injunction. appealable is order view sought pro- (1). It is our case the items of relief 1292(a) section under typical preliminary courts part, section, that in in vided that ap- injunctions per- jurisdiction to restrain have appeals shall forming Interlocutory assertedly illegal acts. certain “(1) peals from * * * * injunctions pur- order refusing was not ** pose controlling review direct the lawsuit in the except It sense used in Supreme Court.” the Baltimore case. may had in the be review a direct not contended is pertinent, Much more it seems to is may Su- be the instant Cutting Appliances decision in Room the Corp. preme Court. Empire Cutting Co., Machine Inc., Cir., 186 F.2d 997. It was there complaint or counterclaim aWhere a held that where infringement counterclaim contains action patent dismissal action the relief injunctive relief prayer for sought merits, preliminary going included on a thereof although injunction, interlocutory manent it does dismissal of the coun- because ap- action, terclaim for lack of is dispose the entire 1292(a) (1). citizenship ap- there is no pealable section under Inc., pealable 1292(a) (1). Fasteners, under section Talon, Inc. Union Slide 308; P. Converse Cir., F.2d Cutting Appliances Corp. Room dem- Cir., F.2d Corp., 1 Polaroid Co. v. appealability onstrates that under sec- 116, 117. (1) dependent upon 1292(a) is not tion however, Here, the dismissal showing the order is on a based ground going on a was not ground going If dismissal to the merits. ground of merits, was on the diversity jurisdiction does not lack presented, question improper preclude that section that dismissal then, the fact is whether why dismissal for do not see involving merits was on appeal. preclude such an venue should appealability under deprives the order cases, as in the where dis- In both 1292(a) (1). section merits, missal is “refusing” question it does not seem order is one As to 1292(a) (1) requires, Inc. v. That all section me making no distinction the statute as be- grounds by majority, upon on which such refusal relied tween equitable helpful. action based. That