Lead Opinion
In October of 1976, plaintiff-appellee, Westinghouse Electric Corporation, filed a complaint alleging anti-trust violations against twenty-nine foreign and domestic uranium producers. All of the defendants were duly served with process; however, nine foreign defendants chose not to appear.
On January 12, 1979, Westinghouse moved ex parte for a temporary restraining order and for a preliminary injunction seeking to require the defaulting defendants to give twenty days’ prior notice to the Court of any transfers of assets in excess of $10,-000 out of the United States. In support of the motion, counsel for Westinghouse submitted an affidavit stating that several of the defaulters, and particularly Rio Tinto Zinc Corp. Ltd. of London, held substantial assets in the United States through wholly owned subsidiaries. Westinghouse counsel further stated that there was reason to believe that those assets were being, or were about to be, removed from the United States to avoid execution on the default judgment entered on January 3, 1979.
On January 15, 1979, the District Court temporarily restrained transfers in excess of $10,000 pending a hearing on January 24. On the latter date, the District Court entered the preliminary injunction sought by Westinghouse.
Notice of the TRO was served on the defaulting defendant, Rio Tinto Zinc Corp. (RTZ), in London, on January 17, 1979. Rio Algom Limited in Canada was served with notice of the TRO that same day. It was later learned that within hours after notice of the TRO, RTZ instructed employees of its subsidiaries to transfer as much money as possible out of American bank accounts and into Canada. Approximately three million two hundred thousand dollars were transferred from the accounts of Atlas Alloys to Rio Algom Limited in Canada. Neither the plaintiff nor the District Court were given notice of these transfers, in apparent violation of the TRO and the subsequent preliminary injunction.
On January 25, 1979, Atlas Alloys moved for an exemption from the preliminary injunction, seeking to make arms length purchases of steel or metal products in the ordinary course of business in amounts of less than $40,000. Approximately one month later, Atlas Alloys gave twenty days’ advance notice that it intended to pay its defaulting parent, Rio Algom Limited
On March 27 and April 2, 1979, Atlas Alloys gave further notice of its intent to make transfers of an additional $168,000 to its defaulting parent. Westinghouse again moved to enjoin these transfers, and to have the monies deposited in a trust account. At this time Westinghouse also moved for further injunctive relief against Atlas Alloys based on the discovery of Atlas Alloys’ practice of transferring funds out of the United States by means of checks written for amounts slightly under $10,000. At that point Atlas Alloys had written 481 checks for a total of $3.9 million dollars to its defaulting parent.
On May 4, 1979, the District Court entered a third injunction. The Court enjoined the proposed transfer of $168,000 from Atlas Alloys and, based on evidence of the transfers to Rio Algom Limited, the Court granted further injunctive relief requiring that all transfers of funds be approved by the Court upon twenty days’ prior written notice, regardless of amount.
Westinghouse also moved for similar in-junctive relief to preserve the assets of Rio Algom Corporation, the wholly-owned subsidiary of Atlas Alloys. Rio Algom Corporation is a Delaware corporation engaged in uranium mining in Utah. In its motion Westinghouse sought to enjoin Rio Algom Corporation from making deposits in bank accounts outside the United States; from making any transfers out of the United States without twenty days’ prior notice to the Court; requiring Rio Algom to deposit the revenues of its Utah mining operation in United States banks; and enjoining the officers, directors and employees of the defaulting Rio Algom Limited from making withdrawals from bank accounts of Rio Al-gom Corporation. On June 20, 1979, the District Court granted Westinghouse’s motion for a preliminary injunction. The Court likened the situation respecting Rio Algom Corporation to the actions of its parent, Atlas Alloys. The Court noted that the single difference was that Rio Algom Corporation, unlike Atlas Alloys, was a defendant in the anti-trust action. The Court concluded, however, that the injunction would in no way impair Rio Algom Corporation’s ability to defend on the merits.
The three injunctions against the defaulters in respect to the assets of Atlas Alloys and the one injunction against Rio Algom Corporation comprise the first interlocutory appeal pending before this Court. The Court has jurisdiction to consider these injunctions pursuant to 28 U.S.C. § 1292(a)(1). The Court
Shortly after the Court heard oral argument on the first appeal, Rio Algom Corporation, Gulf Oil Corporation, and an additional group of answering defendants led by the Getty Oil Corporation filed a petition for further interlocutory review.
This appeal arises out of an Order of September 17, 1979, in which the District Court denied motions filed by the answering defendants seeking to postpone any hearing on damages as to the defaulting defendants until after trial on the merits. The appellants claim that the January 3, 1979,» entry of default judgment and the subsequent determination to proceed to a damages hearing are an abuse of discretion by the District Judge. The appellants claim that the entry of judgment against the defaulting defendants prior to adjudication on the merits as to the answering defendants is prohibited by Frow v. De La Vega,
The Frow case involved the entry of a default judgment against one defendant in a multi-defendant action. De La Vega filed a complaint claiming that eight defendants had conspired to defraud him of title to a tract of land. Frow defaulted while the other defendants contested the allegations and won on the merits. Subsequently, Frow successfully petitioned the Supreme Court to vacate the default judgment.
When the District Judge entered default judgment on January 3, 1979 against the nine defaulters, he considered the applicability of Frow to the present - action. The Court found that the judgment “pro confes-so” entered in Frow was akin to the modern day default judgment under Rule 55(b). Nevertheless, the Court concluded that the entry of default judgment was appropriate. The District Judge reasoned that the 1961 amendments to Rule 54(b) permitting a final adjudication as to one or more but fewer than all of the parties to an action requires a balancing between the “premature decision making” addressed in Frow and the “pragmatic needs of the litigants in complex multiple party actions.”
In striking that balance, the District Judge concluded that three factors outweighed the policies set out in Frow: the need for partial final judgments in complex modern civil actions; the possibility that the foreign defaulters might conceal or transfer assets subject to execution by United States Courts;
The appellants contend that this determination by the District Judge, and his subsequent decision to proceed to damages are contrary to Frow, and therefore an abuse of discretion.
As an alternative basis for his holding, the District Judge relied on Rule 37(b) of the Federal Rules of Civil Procedure. That rule simply permits the imposition of sanctions against parties who fail to attend depositions, serve answers to interrogatories, or respond to requests for inspection. While the rule does not mention default judgment as a sanction for failure to participate in discovery, the entry of a default judgment for failure to participate in discovery has been upheld by the Supreme Court. National Hockey League v. Metropolitan Hockey Club, Inc.,
In addition to these issues raised by the appellants, a significant issue has been raised by amici curiae. The amici request that this Court remand the case to the District Court to conduct an analysis of the international ramifications of this case in order to determine whether subject matter jurisdiction exists, and whether it should be exercised. Because the concerns of the am-ici curiae call into question the Court’s jurisdiction, those matters must be resolved at the outset.
I. JURISDICTION
The governments of Australia, Canada, South Africa and the United Kingdom of Great Britain and Northern Ireland.
The jurisdictional reach of the Sherman Act to conduct outside the United States was not favorably received at the outset. See American Banana Co. v. United Fruit Co.,
In its complaint Westinghouse alleges that twenty domestic and nine foreign corporations conspired to fix the price of uranium in the world market. The alleged meetings at which Westinghouse claims prices were agreed upon took place in France,
The amici, in particular the United Kingdom contend that Alcoa is “no longer to be accepted by United States Courts as ‘settled law’ ”, in light of the recent opinions of the United States Courts of Appeals in Timberlane Lumber Co. v. Bank of America, N.T. & S.A.,
The United Kingdom relies primarily on the comment in Timberlane that “The effects test by itself is incomplete because it fails to consider other nations’ interests.”
We conclude that nothing in Timberlane is inconsistent with our determination that Westinghouse’s allegations of concerted conduct by foreign and domestic corporations are sufficient to confer jurisdiction on the District Court, under Alcoa. We turn now to the question of whether jurisdiction should be exercised in the present case.
In this case, unlike the situation in Timberlane and Mannington Mills, there has been a determination by the District Court as to whether jurisdiction should be exercised. In the order of January 3, 1979, and the order of September 17, 1979, the District Judge considered the unique circumstance presented in this case, and determined, in the exercise of his discretion, to proceed. Our task is to decide whether he abused his discretion in reaching that conclusion. We find that he did not.
In granting the requested default judgment, the District Court considered three factors:
The amici suggest that the District Court abused its discretion by not considering the factors set out in Mannington Mills in reaching this determination. While the considerations recommended in that case certainly provide an adequate framework for such a determination, we can hardly call the failure to employ those precise factors an abuse of discretion. First, the Manning-ton Mills factors are not the law of this Circuit. Second, even assuming their adoption by this Court, the circumstances here are distinct from those found in Tim-berlane and Mannington Mills. In those cases the defendants appeared and contested the jurisdiction of the District Court. In the present case, the defaulters have contumaciously refused to come into court and present evidence as to why the District
We conclude that given the posture of this case, and the circumstances before the District Court, the Judge did not abuse his discretion in proceeding to exercise his jurisdiction. We therefore decline to remand the case to the District Court as requested by the amici curiae.
II. THE DEFAULT JUDGMENT
In both the appeal of the injunctions and the appeal of the District Court’s decision to proceed to a damage hearing, the appellants vigorously attack the entry of default judgment as an abuse of discretion. They contend the abuse of discretion arises from the Court’s failure to follow Frow v. De La Vega, supra. If the default judgment was erroneously entered, they argue, the subsequent injunctions to preserve the viability of that judgment, and the decision to proceed to damages, must also be erroneous. Since the applicability of Frow to this case is the cornerstone of both appeals, we now address that question. Our conclusion is that Frow does not control this case and that the District Court’s entry of default judgment against the defaulters was entirely proper.
The complaint in Frow alleged a conspiracy by Frow and others to defraud the plaintiff, De La Vega, of title to a tract of land. Frow failed to appear and default judgment was entered against him. After the other appearing defendants were exonerated, Frow made an appearance and unsuccessfully petitioned the court to vacate the judgment “pro confesso” entered against him. Frow argued that the two decrees were obviously inconsistent. The answering defendants had prevailed on the merits and cleared title to the land in question. Yet, a contrary decree existed as to Frow. He was held — “pro confesso” — to have fraudulently obtained title to the land as alleged by the plaintiff. Thus, upon appeal, the Supreme Court was faced with inconsistent decisions as to title to a single tract of land. Mr. Justice Bradley properly declared this result “absurd, as well as unauthorized by law.”
The complaint in Frow alleged a “joint” fraud. As the Court in Frow discovered, and recent commentators have correctly noted, if “the alleged liability is joint, a default judgment should not be entered
Here, Westinghouse argues that Frow does not preclude entry of a default judgment against more than one but less than all of the defendants when liability is joint and several. The appellants respond to this argument by relying on Frow as stare decisis, and raising the spectre of inconsistent adjudications. We find that Westinghouse’s view is the correct one based upon our analysis of joint and several liability and our conclusion that there is little possibility of inconsistent adjudications of liability.
Joint or common liability arises when a tortious act is committed by several persons acting in concert. It means that each tortfeasor is entirely responsible for the damage resulting from that concerted conduct.
Anti-trust liability under Section 1 of the Sherman Act is joint and several.
Frow involved a claim of a joint tort to defraud the plaintiff of title to a res. To the extent that it holds that there cannot be inconsistent adjudications as to joint liability
In International Controls Corp. v. Vesco,
We think it most unlikely that Frow retains any force subsequent to the adoption of Rule 54(b). In any event, at most Frow controls in situations where the liability of one defendant necessarily depends upon the liability of the others.535 F.2d 742 , 746-47 n.4.
We conclude that Frow does not preclude the entry of default judgment against a group of nine defaulters prior to adjudication on the merits as to the remaining defendants, where liability is joint and several.
Once Frow is placed in proper perspective, the entry of default judgment can be viewed as a simple exercise in the procedures set out in Rules 54 and 55 of the Federal Rules of Civil Procedure. Rule 55(b) permits the Court to enter default judgment against any party, with notice of the pending application for judgment, who fails to appear and respond to the allegations of the complaint. Rule 54 permits final judgment “as to one or more but fewer than all of the claims or parties upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”
The District Court also suggested that Rule 37(d) F.R.C.P. supports entry of default judgment in this case. That Rule authorizes the imposition of sanctions against parties who refuse to participate in discovery. The Rule makes no mention of default judgment. However, default judgments have been sustained as a valid exercise of the District Court’s power under Rule 37(d). National Hockey League v. Metropolitan Hockey Club, Inc.,
III. THE INJUNCTIONS
Atlas Alloys, Inc. and Rio Algom Corporation appeal the orders enjoining the defaulting defendants from transferring assets out of the United States without prior
We reject appellants’ argument that the injunctions must be overturned because they are predicated on an erroneous default judgment. That argument assumes that Frow v. De La Vega prohibits the entry of default judgment in this case. Our prior discussion of the inapplicability of Frow to this action resolves that question and needs no further repetition here. Indeed, the starting point of our analysis is that the District Court's use of injunctive power was pursuant to a valid default judgment.
Appellants argue that the District Court lacked the power to enter the injunctions. Appellants’ contention is that absent a final default judgment there are only three sources upon which these injunctions could be predicated: Rules 64 and 65 F.R. C.P. and the inherent equity powers of the district court. Appellants insist that none of those sources permit the Court to enter these injunctions.
The situation confronting the district court was extraordinary. In order to avoid execution on the default judgment, Rio Al-gom Limited instructed its American subsidiaries to transfer their assets to Canada. The defaulting defendant circumvented and even ignored the district court’s restraining order in an effort to transfer funds out of the United States. Had the Court not exercised its injunctive powers the default judgment would have been rendered meaningless.
Federal Courts are empowered to restrain the removal of assets from the United States through injunctive relief. United States v. First National City Bank,
We also find support for the district court’s authority to enter these injunctions in the All Writs Act, 28 U.S.C. § 1651(a).
We note that in De Beers Mines Ltd. v. United States,
The All Writs Act empowers Federal Courts to protect their jurisdiction. The injunction in De Beers did not serve to preserve the Court’s jurisdiction and was therefore not within the ambit of the Act. The injunctions in the present case, however, aid the Court in the exercise of its powers; i. e., in enforcing its judgment. For that reason, De Beers does not preclude use of the All Writs Act powers in this case.
Rio Algom Corporation and Atlas Alloys, Inc. argue that assuming the Court was empowered to enter the injunctions in this case, the Court abused its discretion in doing so. The enjoining of transfers of assets was, in effect, an attachment. An attachment or sequestration of assets prior to final judgment, they argue, is simply an abuse of the Court’s equity powers.
The cases relied upon by appellants all involve a prejudgment sequestration of assets
The district court’s exercise of discretion in entering a preliminary injunction is measured against four prerequisites:
*1261 (1) The plaintiffs have no adequate remedy at law and will be irreparably harmed if the injunction does not issue;
(2) The threatened injury to the plaintiffs outweighs the threatened harm the injunction may inflict on the defendant;
(3) The plaintiffs have at least a reasonable likelihood of success on the merits; and
(4) The granting of a preliminary injunction will not disserve the public interest. Fox Valley Harvestore v. A. O. Smith Harvestore Products, Inc.,545 F.2d 1096 (7th Cir. 1976).
We find each of those prerequisites met in this case.
There is no remedy at law which could effectively prevent the removal of the defaulter’s assets from the jurisdiction of the United States Courts. Indeed, defaulters’ conduct is particularly suited for equitable remedies. With regard to the requisite threat of irreparable harm, it is evident that without the Court’s use of injunctive powers the plaintiffs’ ability to satisfy the judgment would be seriously jeopardized.
The Court’s injunctive orders do not place an onerous burden on the defaulting defendants. The Court’s orders simply require prior approval of transfers of funds and permits transactions in the ordinary course of business. However, the threatened injury to plaintiff from the continued withdrawal of assets is substantial. We find that the scale tips in favor of the injunctions.
Since a judgment of liability has been entered against the defaulting defendants, there is clearly more than a reasonable likelihood of success on the merits. ' While it is conceivable that the defendants might prevail on the merits in the final analysis,
Finally, the injunctions of the District Court do not disserve the public interest. To the contrary, the entry of these injunctions serves a strong national interest in effective and meaningful enforcement of the American anti-trust laws. See Perma Muffler v. International Parts Corporation,
We conclude that the district court did not abuse its discretion in enjoining the transfer of funds out of the United States and that each injunction should be and hereby is affirmed.
IV. A HEARING ON DAMAGES
The appellants claim that they will be severely prejudiced by a hearing on damages against the defaulters. The appellants have difficulty in articulating precisely how they would be prejudiced. It is not disputed that a determination as to damages against the defaulters would have no collateral estoppel or res judicata effect.
We perceive the problems in proceeding to damages in terms of possible inconsistency and judicial economy, rather than actual prejudice. The possible inconsistency is that there could be two distinct damages awards on a single claim involving joint and several liability. Considerations of judicial economy are relevant because if the appellants are correct in their analysis of the applicability of Illinois Brick to this case, a damages hearing prior to resolution of that issue could prove to be a useless exercise.
If damages are entered against the defaulters now, and Westinghouse subsequently prevails on the merits against the answering defendants, damages would then have to be determined as to the answering defendants. The possibility of two distinct determinations as to the damages arising out of a single price-fixing claim is, indeed, an inconsistency. Just as the several or independent nature of plaintiff’s claim permits different findings as to liability of individual defendants, the joint nature of plaintiffs’ claim prohibits different findings as to damages against all defendants. While our research has uncovered situations in which inconsistent verdicts as to damages have resulted on a claim involving joint liability, the wholly unsatisfactory manner in which those cases have been handled convinces us that such a result is erroneous and must be avoided.
It is suggested by Westinghouse that “judgments in differing amounts” are permissible in a joint and several claim. Yet, this argument ignores the fact that those defendants ultimately found liable are jointly liable for the entire damage award, and that Westinghouse could look to any one defendant for full satisfaction of the damage award.
Westinghouse may not split its claim and proceed to damages against the defaulters and then proceed to a separate damages award against the answering defendants. Westinghouse has chosen to initiate a single claim involving joint liability. That claim must be concluded just as it began — as one action.
Thus, while Westinghouse has secured a valid default judgment as to the defaulters’ liability, a damages hearing may not be held until the liability of each defendant has been resolved. Should Westinghouse decide to pursue its claim against the answering defendants, a determination of damages as to the defaulters will have to be stayed until the entire claim is resolved. In the event that Westinghouse is' successful on the merits, and establishes the anti-trust liability of the answering defendants, then a single damages hearing can be held. That would result in one damages award recoverable from the answering defendants and defaulters alike, in whatever manner it can be satisfied. However, should Westinghouse elect to dismiss its claim against the answering defendants, with prejudice, the liability of each defendant would be resolved and Westinghouse could proceed to a determination of damages as to the defaulters immediately.
V. CONCLUSION
Section 1292(b) of the Judicial Code provides appellate courts with a flexible tool for interlocutory review of complex and controlling questions of law. Interlocutory review is permitted to assure orderly and efficient administration of complex cases.
Our result today is mandated by the nature of joint and several liability.
The cause is REMANDED to the District Court to proceed in accordance with the views herein expressed.
Notes
. See footnote 11 for a list of the defaulting defendants.
. A brief explanation of the relationship between the parties: Rio Algom Corporation is a Delaware corporation and is an answering defendant in this action. Rio Algom Corporation is owned by Atlas Alloys, Inc., also a Delaware corporation but not a party to this litigation. Atlas Alloys is in turn owned by Rio Algom Limited, a Canadian corporation and a defaulting defendant in this litigation. Rio Algom
. Judges Swygert, Wood and Campbell.
. A discussion of the parties’ views as to the issues raised in that appeal is contained at Part III, infra.
. The appellants are all answering defendants. They are the “Getty Group,” which include in addition to Getty, Phelps Dodge Corporation, Western Nuclear, Inc., Noranda Mines, Ltd., Denison Mines, Ltd., Denison Mines (U.S.) Inc., Engelhard Minerals & Chemicals Corporation, Federal Resources and Pioneer Nuclear, Inc. The Gulf Oil Corporation has appealed on its own behalf and on behalf of its wholly owned subsidiary, Gulf Minerals Canada Ltd. Rio Al-gom Corporation is also a participant in this appeal. In addition, counsel for the Getty Group have informed the Court that Kerr-McGee Corporation, The Anaconda Company, Homestake Mining Co. and Utah International, Inc. support the views expressed in their brief.
. Judges Swygert, Sprecher and Bauer.
. See discussion of the possible prejudice to the answering defendants, Part IV infra.
. See discussion of the applicability of Frow v. De La Vega, Part II infra.
. In re Uranium Antitrust Litigation,
. The subsequent transfers of funds by Rio Algom Limited supports the Court’s conclusion that this was a very real concern.
. Four Australian companies are in default: Conzinc Rio Tinto of Australia Ltd., Mary Kathleen Uranium Ltd., Pancontinental Mining Ltd., and Queensland Mines Ltd. Two British companies are in default: Rio Tinto Zinc Corp. Ltd. and RTZ Services Ltd. Two South African companies are in default: Nuclear Fuels Corporation of South Africa, and Anglo-American Corporation of South Africa Ltd. One Canadian corporation is in default: Rio Algom Limited.
. Id. at 443.
. The United Kingdom asserts that Manning-ton Mills represents a departure from the Alcoa “intended effects” test. However, we read Mannington Mills as affirming the “intended effects” test within the factual context of that case.
. Westinghouse Complaint fl 36.
. Id.
. Id. ¶¶ 38 and 50.
. Id. ¶¶ 42 and 46.
. Id. ¶ 51.
. Id. ¶ 54.
. Indeed, so long as the nine defaulting foreign corporations refuse with specific support of their respective Governments to appear and contest the allegations of the complaint, including those upon which jurisdiction is asserted, they have made it virtually impossible to arrive at any further findings.
. Thus, there can be no claim that the alleged conduct is protected from adjudication by American Courts under the Act of State doctrine. See Banco Nacional de Cuba v. Sabbati-no,
. Timberlane at 615. Mannington Mills at 1292.
. Those factors are: Degree of conflict with foreign law or policy; nationality of the parties; relative importance of the alleged violation of conduct here compared to that abroad; availability of a remedy abroad and the pendency of litigation there; existence of intent to harm or affect American commerce and its foreseeability; possible effect upon foreign relations if the court exercises jurisdiction and grants relief; if relief is granted, whether a party will be placed in the position' of being forced to perform an
.
.
. See K. Brewster, Antitrust and American Business Abroad (1958), p. 446.
. Timberlane,
. While the Timberlane Court appears to have grafted the adjective “substantial” to Learned Hand’s intended effect test, the Alcoa standard emerges from Timberlane essentially intact.
. While the District Court engaged in this analysis in connection with his decision to enter default judgment, we find that the Court’s decision to exercise its jurisdictional authority is implicit in that order.
. Indeed, it was asserted by counsel for Westinghouse during oral argument that one defaulter simply tore up the complaint in the presence of the process server.
. One such subsidiary, Atlas Alloys, Inc., is not even a party in this action.
. Westinghouse argues that only the defaulters against whom the default judgment has been entered have standing to attack that judgment. The appellants claim standing as parties to this action, who are adversely affected by the Court’s entry of judgment against the defaulters. Atlas Alloys and Rio Algom Corporation claim that they have standing to attack the District Court’s injunctions because their assets were affected by those orders. Also, these American subsidiaries were found to be “assets” of the defaulters and thus subject to execution on the judgment, after damages are determined. We find these sufficient allegations of “injury in fact” to confer standing on Atlas Alloys and Rio Algom Corporation. Sierra Club v. Morton,
. J. Moore, Federal Practice ¶ 55.06, at 55-81; See also 10 Wright and Miller, Federal Practice and Procedure, § 2690, at 289-90.
. See discussion on damages, Part IV, infra.
. Prosser, 4th Ed. (1971) § 46. See Miller v. Singer,
. In a conspiracy case, one group of two or more defendants.
. Bogosian v. Gulf Oil Corp.,
. Schofíeld v. Palmer,
. See e. g. Barnes v. Boyd,
. The District Court considered this distinction and rejected it. The Court’s Memorandum Opinion of January 3, 1979 found that both Frow and the present action fall within the category of a “joint tort” to which there is joint and several liability. We do not view Frow as broadly. We view Frow as limited to exclusively joint liability claims or situations where there is a single res in controversy.
. During oral argument, counsel for Gulf conceded that there are many situations in which different results are reached on a single claim involving multiple parties. Some examples are: when one defendant settles a claim while the other defendant goes on to prevail on the merits; when one defendant accepts an adverse judgment while the other successfully appeals; and when a jury finds two defendants guilty of conspiring yet absolves the remaining defendants. These examples are cited simply to illustrate that all different results are not necessarily logically inconsistent or absurd.
. We do perceive, however, a real possibility of inconsistent determinations as to damages. That possibility is discussed in part IV infra.
. Rule 54(b) also requires that “more than one claim for relief [be] presented in an action.” We find that the several and independent quality of this claim satisfies that requirement.
. For a discussion of these appellants’ standing to contest the injunctions, see note 32, supra.
. To a large extent, that argument is undermined by our conclusion that the default judgment was proper. Nevertheless, we address this issue.
. The All Writs Act provides: The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.
. In that case, the United States brought an action against several corporations to enjoin violations of §§ 1-7 of the Sherman Act. Pursuant to a consent decree, a preliminary injunction was entered pending final adjudication on the merits. In the interim, one of the defendants sought to dissolve the corporate entity, and the government moved for a preliminary injunction restraining further attempts at dissolution. The district court concluded that the All Writs Act authorized the entry of the injunction to preserve the court’s jurisdiction over the matter, and entered the injunction.
. De Beers Mines v. United States, supra,
. Baxter v. United Forest Products Co.,
. Westinghouse argues “the default disposes of any question of likelihood of success.” We disagree. It is possible that the defendants could appear, successfully move to vacate the default, and ultimately prevail on the merits. Also, the district court could find that the complaint fails to state a claim. In that event, the default judgment would be subject to similar attack. See part IV infra.
. See Parklane Hosiery Co. v. Shore,
.
. See Whitney v. Tuttle,
. Principles of res judicata prevent the splitting of a single claim for relief into two separate actions. McConnell v. Travelers Indemnity Co.,
. Illinois Brick was not decided on the basis of standing. It is a substantive analysis of what conduct runs afoul of section four. See Illinois Brick,
. In the event that Westinghouse elects to dismiss its claim against the answering defendants, the motions to dismiss filed by those defendants would be moot. In that event, the District Court could proceed to damages as to the defaulters.
. See Hadjipateras v. Pacifica S.A.,
. We note that some commentators suggest that joint and several liability is inappropriate for price-fixing conspiracy claims. Izard & Miller, High Price-Fixing Awards Require Abolition of Joint, Several Liability, 1 Nat.L.J. 50 (Aug. 27, 1979).
Concurrence in Part
dissenting in part and concurring in part.
With one important exception, I concur in all respects in the result reached by Judge Campbell in these appeals; however, my concurrence as to the hearing on damages as well as the issuing of the injunction is based on reasons different from those advanced by him.
In my view Frow v. De La Vega controls this case. The trial judge’s analysis of that decision as being apposite to the case at bar is, in my judgment, irrefutable. In re Uranium Antitrust Litigation,
Rule 54(b) was designed to regulate the appealability of claims, multiple as to parties or claims or both. It is a procedural device to avoid the final judgment rule. Its use was never intended to, nor could it, formulate or modify substantive law. The Rules Enabling Act, 28 U.S.C. § 2072, provides that the Federal Rules of Civil Procedure “shall not abridge, enlarge or modify any substantive right . . Frow speaks to substantive rights: a claim of joint tort liability may not be split or severed among defendants so as to permit recovery against some, but not all, the defendants who have acted in combination to cause the tort.
The tort alleged in this action stems from the asserted violation of the antitrust laws. Westinghouse is the sole plaintiff, and it asserts a single claim against twenty-nine defendants. Damages, whatever the extent, can flow only from the single injury which was assertedly caused by all or some of the defendants acting jointly. Those damages after proper assessment may be collected from all or any of the defendants found liable, on a selective basis at the will of Westinghouse. This eventuality, that is, collectibility, is what makes the claim for damages “joint and several.” The claim is not several in relation to the issue of liability-damage for the single tort (injury) caused by the joint conspiratorial aims and acts of the defendants. For these reasons, the total damages, if any, owing to Westinghouse are identical conceptually with the title to the res in Frow.
Insofar as the impending damage hearing is concerned, my reasoning leads practically to a result identical to that reached by my Brothers. Westinghouse, unable at this point to obtain a judgment, must await trial of the appearing defendants before it can have a hearing on damages. Alternatively, if Westinghouse elects to dismiss its claim against the appearing defendants, a default judgment can be entered and the hearing to assess damages may be had immediately upon the dismissal.
In respect to the injunction, I again part company to a large extent with the reasoning of Judge Campbell. Given the applicability of Frow so as to bar the entry of a judgment against the defaulting defendants at this time, any reliance on the default judgment to authorize the injunction is misplaced. The entry of a default under Rule 55(a) and the potentiality of a binding default judgment under Rule 55(b) provide a solid ground for the application of both the All Writs Act and the inherent equity powers of the Federal Courts so as to give the trial court the power to enjoin the removal of assets from the United States, which may be subject to a writ of execution under the default judgment if and when entered.