Schatte v. INTERNATIONAL ALLIANCE, ETC., 12321.

Decision Date09 October 1950
Docket NumberNo. 12321.,12321.
Citation183 F.2d 685
PartiesSCHATTE et al. v. INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES AND MOVING PICTURE MACHINE OPERATORS OF THE UNITED STATES AND CANADA et al.
CourtU.S. Court of Appeals — Ninth Circuit

Clarence E. Todd, Todd & Todd, all of San Francisco, Cal., Kenny & Cohn, Los Angeles, Cal., for appellant Paul Hinst.

Zach Lamar Cobb, Los Angeles, Cal., for appellants Schatte, et al., other than Paul Hinst.

Bodkin, Breslin & Luddy, Michael G. Luddy, all of Los Angeles, Cal., for appellees Int. Alliance, et al.

O'Melveny & Myers, Homer I. Mitchell, W. B. Carman Jr. and William Alsup, all of Los Angeles, Cal., for appellees Ass'n of Motion Picture Prod. et al.

Before ORR and POPE, Circuit Judges, and WEINBERGER, District Judge.

Writ of Certiorari Denied October 9, 1950. See 71 S.Ct. 64.

PER CURIAM.

Paul Hinst, one of the appellants in the above entitled action, has moved this court for an order substituting Clarence E. Todd as his counsel and for leave to file a petition for rehearing. Both motions are opposed by counsel for the remaining 25 appellants. The motions were submitted on affidavits, briefs and oral argument.

Ordinarily substitution of counsel is granted a litigant upon request.1 But in this case we think the circumstances are such that to permit such a substitution at this stage of the proceedings would result in confusion and perhaps injustice insofar as the remaining twenty-five appellants are concerned.

Appellant Hinst and twenty-five other individuals brought this action for damages arising out of the loss of their employment. The complaint purports to have been brought on behalf of 2,000 other individuals similarly situated but, since each plaintiff's claim is individual and several, and no specific property can be affected by the action, the action is a "spurious class suit" under Rule 23(a) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Such a suit is merely a permissive joinder device in which the right and liability of each individual plaintiff is distinct and no member of the "class" is bound by a judgment who does not join as plaintiff or intervenor. 3 Moore's Federal Practice, (2nd ed.) § 23.101. Of the twenty-six plaintiffs in the instant case, one, through his attorney, Mr. Todd, has asked for leave to file a petition for rehearing. The other twenty-five plaintiffs, represented by another attorney, consider it as not in their best interests that such a petition be filed. It is apparent that so long as this proceeding retains its character as a single action one plaintiff should not be permitted, under the circumstances here presented, to dictate a manner of conducting the litigation contrary to the judgment of counsel who is still the attorney for the other twenty-five plaintiffs. The general rule in class suits is that the member of the class who is the original plaintiff retains control over the action as opposed to other members of the class who may later seek to intervene. Annotation, 91 A.L.R. 587, 3 Moore's Federal Practice § 23.07 n. 7. This rule, while not directly applicable here, is based on an underlying principle that where several parties are joined on the same side of a...

To continue reading

Request your trial
10 cases
  • Union Carbide and Carbon Corporation v. Nisley, 6319-6322.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 26, 1962
    ...v. Anheuser-Busch, Inc., 7 Cir., 194 F.2d 737, cert. denied 344 U.S. 820, 73 S.Ct. 17, 97 L.Ed. 638; Schatte v. International Alliance of Theatrical Stage Employees, 9 Cir., 183 F.2d 685, cert. denied 340 U.S. 827, 71 S.Ct. 64, 95 L.Ed. 608; Oppenheimer v. F. J. Young & Co., supra; Athas v.......
  • Kainz v. Anheuser-Busch, Inc., 10502.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 17, 1952
    ...Circuit in Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84, 88." In Schatte v. International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United States and Canada, 9 Cir., 183 F.2d 685, 687, where plaintiff and 25 other individuals brought an action for da......
  • Hidalgo County Water Imp. Dist. No. 2 v. Cameron County Water Control & Imp. Dist. No. 5, 12452
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 12, 1952
    ...3 Cir., 183 F.2d 558; Montgomery Ward & Co. v. Langer, 8 Cir., 168 F.2d 182; Schatte v. International Alliance of Theatrical Stage Emp. and Moving Picture Mach. Operators of U.S. and Canada, 9 Cir., 183 F.2d 685. I think the temporary injunction in this case might well have been refused, be......
  • Cosmark v. Struthers Wells Corp.
    • United States
    • United States State Supreme Court of Pennsylvania
    • October 17, 1963
    ...of Theatrical Stage Employees and Moving Picture Machine Operators, D.C., 84 F.Supp. 669, aff'd 9 Cir., 182 F.2d 158, reh. den. 9 Cir., 183 F.2d 685, den. 340 U.S. 827, 71 S.Ct. 64, 95 L.Ed. 608, reh. den. 340 U.S. 885, 71 S.Ct. 194, 95 L.Ed.2d 643, the court stated (84 F.Supp. 672): 'any r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT