473 F.2d 580 (9th Cir. 1973), 26542, State of Utah v. American Pipe & Const. Co.

Docket Nº:26542, 26543.
Citation:473 F.2d 580
Party Name:STATE OF UTAH, Plaintiff, v. AMERICAN PIPE & CONSTRUCTION COMPANY et al., Defendants-Appellees, Weber Basin Water Conservancy District et al., Applicants for Intervention-Appellants. STATE OF UTAH, Plaintiff, v. AMERICAN PIPE & CONSTRUCTION COMPANY et al., Defendants-Appellees. Salt Lake County Cottonwood Sanitary District et al., Applicants for In
Case Date:January 31, 1973
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 580

473 F.2d 580 (9th Cir. 1973)

STATE OF UTAH, Plaintiff,

v.

AMERICAN PIPE & CONSTRUCTION COMPANY et al., Defendants-Appellees, Weber Basin Water Conservancy District et al., Applicants for Intervention-Appellants.

STATE OF UTAH, Plaintiff,

v.

AMERICAN PIPE & CONSTRUCTION COMPANY et al., Defendants-Appellees. Salt Lake County Cottonwood Sanitary District et al., Applicants for Intervention-Appellants.

Nos. 26542, 26543.

United States Court of Appeals, Ninth Circuit.

January 31, 1973

Certiorari Granted May 7, 1973.

See 93 S.Ct. 2146.

Page 581

Gerald R. Miller (argued), Denis R. Morrill, of Mulliner, Prince & Magnum, Kent Shearer, of Neslen & Mock, Prince, Yeates, Ward, Miller & Geldzahler, Vernon B. Romney, Atty. Gen., State of Utah, Salt Lake City, Utah, for appellants.

Jesse R. O'Malley (argued), Lawrence E. Stickney, of Music, Peller & Garrett, Los Angeles, Cal., Gordon Johnson, of Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., Oliver F. Green of Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., James O. Sullivan, Wayne M. Pitluck, of Sullivan, Marinas, Augustine & Delafield, San Diego, Cal., John J. Hanson, Robert E. Cooper, of Gibson, Dunn & Crutcher, Los Angeles, Cal., Haldor T. Benson, of Vancott, Bagley, Cornwall & McCarthy, Salt Lake City, Utah, Richard W. Campbell, of Olmstead, Stine & Campbell, Ogden, Utah, George Read Carlock, of Ryley, Carlock & Ralston, Phoenix, Ariz., Dominic B. King, Pittsburgh, Pa., for defendants-appellees.

Before: MERRILL and KILKENNY, Circuit Judges, and TAYLOR, District Judge. [*]

MERRILL, Circuit Judge:

Weber Basin Water Conservancy District and other applicants for intervention

Page 582

have taken this appeal from a final order 1 of the District Court denying their applications to intervene in the action below brought by the State of Utah.

That action was brought May 13, 1969, 2 as a class action against appellees, alleging a Sherman Act conspiracy in the sale of concrete and steel pipe and seeking treble damages with respect to purchases of those products. The State of Utah purported to represent a class described as "those public bodies and agencies of state and local government in the State of Utah who are end users of pipe acquired from defendants * * *." The action relied upon the same conspiracies involved in protracted litigation popularly known as the West Coast Pipe Cases, growing out of five criminal and five civil actions initiated by the Government in 1964 and ultimately terminated May 24, 1968.

On December 4, 1969, on motion of appellees, the court entered an order that the action shall "not be maintained as a class action"; that the class action "in all respects stands terminated as of May 13, 1969, the date of the filing of the complaint herein." The order was based on findings made under Rule 23, Federal Rules of Civil Procedure, 3 that members of the class described in the complaint are "not so numerous that joinder of all such entities is impracticable"; and that experience in the West Coast Pipe Cases had demonstrated that a class action was "inferior to other available methods for the fair and efficient adjudication of the instant controversy." 4

*****

* * *

Eight days later, on December 12, 1969, appellants filed motions to intervene as plaintiffs, as of right, under Rule 24(a) (2), or by permission, under Rule 24(b) (2). On March 30, 1970, the court handed down a decision denying intervention, 5 which was followed by formal findings of fact, conclusions of law, and order, from which order this appeal is taken.

We agree with the District Court that appellants had no right to intervention under Rule 24(a) since, as a practical matter, they would not be affected by any potential recovery by Utah. Fed.R.Civ.P. 24(a) (2).

However, denial of appellants' motion for permissive intervention under

Page 583

Rule 24(b) was, in our judgment, erroneous.

The court felt...

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