Burkett v. SHELL OIL COMPANY

• Decision Date: 26 November 1973
• Docket Number: No. 72-1065.,72-1065.
• Parties: Harvey Lawrence BURKETT, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

487 F.2d 1308 (1973)

Harvey Lawrence BURKETT, Plaintiff-Appellant, v. SHELL OIL COMPANY, Defendant-Appellee.

No. 72-1065.

United States Court of Appeals, Fifth Circuit.

November 26, 1973.

William H. Saliba, Mobile, Ala., Steven R. Plotkin, New Orleans, La., for plaintiff-appellant.

William Simon, Michael W. Graney, Washington, D. C., G. Sage Lyons, Samuel W. Pipes, III, Mobile, Ala., for defendant-appellee.

Before COLEMAN and GODBOLD, Circuit Judges, and GORDON, District Judge.

JACK M. GORDON, District Judge:

This appeal provides a clear illustration of how relatively simple legal issues easily can be mistaken for complexities of the first magnitude through a befuddled presentation of the facts. In this matter plaintiff-appellant contests the district court's ruling that denied plaintiff's request to reargue two motions previously decided by the district court. Appellee has filed a motion to dismiss the appeal, which, pursuant to this Court's order, has been carried concurrently with the case.

Upon completing a prerequisite judicial autopsy on the chronological development of proceedings in this action, we grant appellee's motion to dismiss the present appeal. Furthermore, the product of such a detailed review supports the district court judgment denying plaintiff the right to reargue his motions.

Once a concise statement of facts is related, the procedural Gordian knots practically unravel themselves. Hence, the importance of the factual circumstances in this action dictates an indepth examination of the sundry transactions, both judicial and non-judicial, that have transpired thus far.

The action at bar stems from a private antitrust action filed by appellant, Harvey Lawrence Burkett, pursuant to 15 U.S.C. § 15, in the United States District Court for the Southern District of Alabama (Southern Division) hereinafter referred to as district court on December 3, 1969. In accordance with a written contract, plaintiff Burkett operated a gasoline service station in Mobile, Alabama under the auspices of defendant Shell Oil Company from February 1, 1965, until January 13, 1966. Plaintiff allegedly suffered substantial damages during the eleven-month-old contractual relationship with defendant Shell Oil Company. A claim for such damages lay dormant from January 13, 1966, until plaintiff manifested his intentions of pursuing this cause of action against Shell by filing suit on the aforementioned date, December 3, 1969. During this interim period, plaintiff filed a petition in bankruptcy on June 23, 1967, though plaintiff Burkett did not include among his assets any claims against Shell Oil Company that now constitute this lawsuit. Plaintiff was discharged in bankruptcy on February 16, 1968. Approximately twenty-two months after his discharge, Burkett initiated this present antitrust litigation.

Shortly after the filing of the complaint, Shell Oil Company filed its first motion for summary judgment (February 23, 1970) on the ground that plaintiff, having commenced sua sponte bankruptcy proceedings and having been adjudicated a bankrupt, did not have the capacity to maintain this type of action and was not the real party in interest since title to the alleged antitrust claim passed to the plaintiff's trustee in bankruptcy. Two months thereafter (April 23, 1970), Shell submitted a second motion for summary judgment on the alternative basis that plaintiff had given defendant Shell a written release of the claims in the present lawsuit. Defendant's motions for summary judgment were argued on May 18, 1970, and were taken under submission by the district court.

After another two month interval, plaintiff filed (July 27, 1970) a motion "to require joinder of person the trustee in plaintiff's closed bankruptcy proceeding needed for just adjudication", and, alternatively, a motion "to order that joinder is not feasible and to order that the case proceed without the joinder of the trustee in bankruptcy as party plaintiff." The district court heard oral argument on these motions on September 4, 1970, and elected to take plaintiff's motions under submission that date. Fifteen days later, September 19, 1970, the district court granted defendant Shell's first motion for summary judgment against Burkett; the court concluded that title to the antitrust claims passed to the trustee in bankruptcy, which transfer deprived Burkett of standing to sue. No mention was made by the district court of Shell's motion for summary judgment founded on the written release or of Burkett's motion to require joinder.

On October 6, 1970, plaintiff requested that the district court issue an order substituting himself, Burkett, as plaintiff, suing for the use of William Gravey Smith, as trustee, instead of the plaintiff, Harvey Lawrence Burkett, suing individually and in his own right. The next day (October 7, 1970), plaintiff lodged his appeal from the final judgment entered against him on September 19, 1970 (hereinafter referred to as Appeal No. 71-1027). Absent written reasons, the district court on November 13, 1970, denied plaintiff's motion to substitute party plaintiff filed on October 6, 1970. Apparently prompted by the district court's denial of his motion to substitute party plaintiff in the antitrust action, plaintiff Burkett, on November 18, 1970, subsequent to the filing of the appeal in the civil action (Appeal No. 71-1027), filed in the bankruptcy court an ex parte motion for the court to reopen the bankruptcy proceeding to appoint a trustee In the Matter of Harvey Lawrence Burkett, Bankrupt (Case No. 24,976) hereinafter referred to as In re Burkett, No. 24,976 and to allow said trustee (a) to join in the appeal; (b) to assume control over Burkett's antitrust action against Shell Oil Company; and (c) to file his consent that the antitrust suit be continued by the present plaintiff (Burkett) for the use and benefit of the bankrupt's estate. The motion to reopen the estate was denied by the bankruptcy court on December 31, 1970. Burkett did not pursue appellate review of the bankruptcy court's denial of this motion.

Through an extension of time granted by order of the district court on November 13, 1970, the certified record on appeal (Appeal No. 71-1027) was not forwarded to the Clerk of the Court of Appeals for the Fifth Circuit until January 5, 1971. Although plaintiff had submitted to the bankruptcy court his motion for an ex parte order to reopen his estate in bankruptcy on November 18, 1970, plaintiff previously had filed (October 19, 1970) a motion with the district court handling the antitrust claim to certify the record in Burkett's bankruptcy case (In re Burkett, No. 24,976) in order that the bankruptcy proceeding of Burkett be included in the certified record on appeal (Appeal No. 71-1027); the latter motion to certify the record of bankruptcy case No. 24,976 was granted by agreement on December 4, 1970.

On or about March 24, 1971, appellant-Burkett filed his brief in Appeal No. 71-1027. The legal issues to be decided by the Court of Appeals in Appeal No. 71-1027, as suggested to the court by the appellant in his brief, were stated as follows:

1. A. Whether the appellant has the right to prosecute this antitrust action in his own right.

B, Whether appellant has a right to sue, in his own right, for the excess over the amount owed his creditors.

2. Whether appellant should be allowed time to substitute the trustee as proper party plaintiff in this litigation.

3. Whether the bankruptcy should be reopened and the bankruptcy court should be directed to claim or disclaim this cause of action and order either the trustee or the bankrupt or both to proceed with this action.

Another panel of this Court, on September 13, 1971, affirmed in a per curiam opinion the summary judgment granted by the district court in favor of Shell Oil Company (September 19, 1970) and reiterated appellant's lack of standing to sue for his alleged antitrust cause of action. Burkett v. Shell Oil Company, 448 F.2d 59 (5th Cir. 1971). By way of a footnote to its opinion, the court in Appeal No. 71-1027 noted what it felt to be several outstanding motions filed by appellant, and yet to be decided by the district court, to wit:

Appellant\'s brief to this Court raises two additional issues: "whether appellant should be allowed time to substitute the trustee as proper party plaintiff in this litigation," and "whether the bankruptcy court should be directed to claim or disclaim this cause of action and order either the Trustee or the Bankrupt or both to proceed with this action." It appears from appellant\'s brief and the record from the district court that both of these questions are presently pending before the district court as motions. Neither issue is, therefore, properly before this Court. Burkett v. Shell Oil Co., 448 F.2d at 59, n. 1.

Appellant did not request reargument before the Court of Appeals in Appeal No. 71-1027 in accordance with Rule 40(a) of the Federal Rules of Appellate Procedure. Rather, on October 6, 1971, nearly a month after the decision in Appeal No. 71-1027, Burkett's counsel addressed to the district court a letter which contained counsel's thoughts on the meaning to be afforded the above quoted footnote. Pertinent portions of this letter read as follows:

I have received a copy of the 5th Circuit\'s decision rendered in the case of Burkett vs. Shell, No. 71-1027. The decision makes reference to two motions filed by the Plaintiff which apparently were never ruled on by the Court. The 1st of these was a "Motion to Require Joinder of Person Needed for Just Adjudication" with an "Alternative Motion To Order That Joinder is Not Feasible and Order This Case To Proceed Without Joinder of Trustee in Bankruptcy . . . . The second is a "Motion to Substitute Party Plaintiff" . . . .

. . . I respectfully ask that your Honor set the two motions for hearing; and also order a hearing held on the necessity of Harvey Burkett renewing the

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