551 F.2d 539 (3rd Cir. 1977), 76-1612, Akerly v. Red Barn System, Inc.

Docket Nº:76-1612.
Citation:551 F.2d 539
Party Name:Leon F. AKERLY v. RED BARN SYSTEM, INC., et al. Appeal of HARRISBURG BARNS, INC., et al.
Case Date:January 26, 1977
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 539

551 F.2d 539 (3rd Cir. 1977)

Leon F. AKERLY

v.

RED BARN SYSTEM, INC., et al.

Appeal of HARRISBURG BARNS, INC., et al.

No. 76-1612.

United States Court of Appeals, Third Circuit

January 26, 1977

Argued Jan. 3, 1977.

Page 540

[Copyrighted Material Omitted]

Page 541

James C. Wood, Keith A. Clark, Shumaker, Williams & Clark, Harrisburg, Pa., for appellants.

Louis R. Koerner, Jr., Koerner & Babst, New Orleans, La. for appellee.

Before VAN DUSEN and ADAMS, Circuit Judges, and TEITELBAUM, District Judge. [*]

OPINION

ADAMS, Circuit Judge.

The present appeal poses two independent questions. We must determine whether this Court has jurisdiction over an appeal from a denial of a motion to dismiss a complaint, when the motion has been premised on the allegedly unethical character of the representation by the attorneys for the plaintiff. Also, we are obliged to decide whether the district court abused its discretion in refusing to disqualify plaintiff's lead counsel, after having disqualified his local co-counsel.

I.

When plaintiff Akerly initially contemplated commencing this litigation, he retained Robert Woodside, Esquire, of the Harrisburg law firm of Woodside, Woodside & Zwally. Mr. Woodside researched the matter and composed a rough draft of a complaint sounding in assumpsit. The assumpsit complaint, however, was never filed and was not utilized in any way by counsel who was later retained by Akerly.

In 1971, Akerly turned to Louis Koerner, Jr., Esquire, of New Orleans, for assistance with his claim. Mr. Koerner prepared an entirely new complaint, grounded on alleged violations of the antitrust and securities laws. The pleading drafted by Mr. Koerner was the one eventually used. It appears that in the course of his work Mr. Koerner spoke with Mr. Woodside about the filing of the new complaint. Since the time he had first been contacted by Akerly, Mr. Woodside had become a partner in the firm of Shearer, Mette, Hoerner & Woodside, an entity which was the result of a merger between his old partnership and another Harrisburg law firm. 1

During their exchange, Mr. Woodside suggested that Mr. Koerner enlist Thomas Beckley, a lawyer in his firm, as local counsel, on the basis that Mr. Beckley was more

Page 542

actively engaged in litigation at that time. Mr. Koerner agreed, and Mr. Beckley proceeded to serve as local counsel.

Mr. Beckley had become associated with Mr. Woodside by way of the merger of the Shearer and Woodside firms. 2 From 1969 until 1972 Mr. Beckley was employed by the old Shearer firm. And prior to 1969, Mr. Beckley had been associated with yet another law office, Rhoads, Sinon & Reader.

Among the clients of the Rhoads firm during Mr. Beckley's tenure there were defendant Lapitsky, and Camp Hill Restaurant, Inc., a corporation that is related to defendant Harrisburg Barns, Inc. Although most of the services for these clients were rendered by Merrill Yohe, Jr., Esquire, and Howell Mette, Esquire, 3 it also appears that Mr. Beckley performed incidental tasks for them.

On August 7, 1973, the defendants filed a motion in the district court seeking the dismissal of Akerly's complaint on account of an alleged conflict of interest by plaintiff's counsel or, in the alternative, the disqualification of attorneys Beckley and Koerner for the same reason. After extensive hearings, Judge Sheridan disqualified Mr. Beckley, but denied all other relief.

Judge Sheridan's memorandum opinion, written in response to the motion, discussed only the issue of the disqualification of the attorneys. In the course of the opinion, the trial judge made a finding that, while the representation by the Rhoads firm of Mr. Lapitsky and Camp Hill Restaurant was "substantially related" to the subject matter of the present suit, Mr. Beckley's work was not so related. Nor, Judge Sheridan concluded, were any confidences directly placed by Mr. Lapitsky and Camp Hill Restaurant with Mr. Beckley during the years Mr. Beckley had been at the Rhoads firm. Disqualification of Mr. Beckley was found by the district judge to be warranted, nonetheless, since there was some chance albeit a small one that Mr. Beckley was privy to some confidences while a lawyer with Rhoads. But Judge Sheridan found that there was no possibility that confidences of Mr. Lapitsky and Camp Hill Restaurant had found their way to Mr. Koerner, and that the removal of Mr. Beckley would prevent any disclosures from happening in the future.

Plaintiff Akerly has not appealed from the order disqualifying his local counsel, Mr. Beckley. Defendants, however, have sought review of the denial by the district court of their motion to dismiss and the district court's refusal to disqualify Mr. Koerner.

We have concluded that this Court has jurisdiction over the order rejecting the proposed disqualification of Mr. Koerner, that we lack jurisdiction over the appeal from the refusal of the district court to dismiss the complaint, and that the denial of the motion to disqualify Mr. Koerner must be affirmed.

II.

Our jurisdiction over the order by Judge Sheridan refusing to disqualify Mr. Koerner is predicated on 28 U.S.C. § 1291, which authorizes an appeal from a final judgment of a district court. 4 Although a decision relating to an attempt to disqualify an attorney is not a classic final order, we have decided on a number of occasions that

Page 543

such matters are reviewable under the collateral order doctrine. 5

A denial of a motion to dismiss, however, even when based on alleged attorney misconduct, is neither a final judgment nor the type of district court decision that is subsumed by the collateral order doctrine. Nor do we believe that our jurisdiction over the disqualification question empowers us to undertake a separate consideration of the denial of the motion to dismiss.

We recognize that by declining to rule that the exercise of the collateral order doctrine gives this Court jurisdiction over all other issues in a case, we are treating that doctrine in a manner that diverges from our interpretation of interlocutory appeals under 28 U.S.C. § 1292(b). In Katz v. Carte Blanche Corp, 6 we held that in a section 1292(b) appeal a court of appeals can review not only the "controlling question of law" set forth in the district court's certification, but "every order which if erroneous, would be reversible error on final appeal." 7 However, Katz, in our opinion, is distinguishable from the situation before us.

The Katz court justified its conclusion by noting that one of the purposes of the section 1292(b) procedure is the avoidance of unnecessary trials, and that immediate review of all potentially reversible rulings furthers this goal. 8 Consideration of collateral orders, on the other hand, is founded upon the separability of such orders from the remainder of the case, and not upon a concern for judicial efficiency.

Further, this Circuit has consistently maintained that the collateral order doctrine should be sparingly applied, 9 and that utilization of section 1292(b) rather than relaxation of standards for mandatory appeals should be seen as the preferred vehicle for seeking review of arguably interlocutory orders. 10 This restrictive attitude towards the collateral order doctrine...

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63 practice notes
  • 637 F.Supp. 1556 (W.D.Wash. 1986), C80-1109, United States for Use and Benefit of Lord Elec. Co., Inc. v. Titan Pacific Const. Corp.
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 30 juni 1986
    ...facts and circumstances. See In re Eastern Sugar Antitrust Litigation, 697 F.2d 524, 530 (3d Cir.1982); Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3d Cir.1977); see also Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir.1983) (determination on case-by-case Analysis begins with the ......
  • 166 F.Supp.2d 1 (D.N.J. 2001), 98-CV-1664, In re Cendant Corp. Securities Litigation
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 15 augustus 2001
    ...the denial of a motion to dismiss is usually considered an interlocutory as opposed to a final order. Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3d Cir. 1977); Piazza v. Major League Baseball, 836 F.Supp. 269, 270 (E.D.Pa.1993). Under 28 U.S.C. § 1292(b), district courts may, in th......
  • 470 F.Supp. 495 (N.D.Cal. 1979), MDL 338, In re Airport Car Rental Antitrust Litigation
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 24 april 1979
    ...firm's co-counsel. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 235 (2 Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3 Cir. Page 502 Rather, the particular facts of each case must be considered in order to determine whether disqualification is warran......
  • 584 F.2d 201 (7th Cir. 1978), 77-1786, First Wisconsin Mortg. Trust v. First Wisconsin Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 22 september 1978
    ...214 (1978); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n. 12 (3d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); NCK Organization Ltd. v. Bregman, 542 ......
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63 cases
  • 637 F.Supp. 1556 (W.D.Wash. 1986), C80-1109, United States for Use and Benefit of Lord Elec. Co., Inc. v. Titan Pacific Const. Corp.
    • United States
    • Federal Cases United States District Courts 9th Circuit Western District of Washington
    • 30 juni 1986
    ...facts and circumstances. See In re Eastern Sugar Antitrust Litigation, 697 F.2d 524, 530 (3d Cir.1982); Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3d Cir.1977); see also Schiessle v. Stephens, 717 F.2d 417, 421 (7th Cir.1983) (determination on case-by-case Analysis begins with the ......
  • 166 F.Supp.2d 1 (D.N.J. 2001), 98-CV-1664, In re Cendant Corp. Securities Litigation
    • United States
    • Federal Cases United States District Courts 3th Circuit District of New Jersey
    • 15 augustus 2001
    ...the denial of a motion to dismiss is usually considered an interlocutory as opposed to a final order. Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3d Cir. 1977); Piazza v. Major League Baseball, 836 F.Supp. 269, 270 (E.D.Pa.1993). Under 28 U.S.C. § 1292(b), district courts may, in th......
  • 470 F.Supp. 495 (N.D.Cal. 1979), MDL 338, In re Airport Car Rental Antitrust Litigation
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • 24 april 1979
    ...firm's co-counsel. See Fund of Funds, Ltd. v. Arthur Andersen & Co., 567 F.2d 225, 235 (2 Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 543 (3 Cir. Page 502 Rather, the particular facts of each case must be considered in order to determine whether disqualification is warran......
  • 584 F.2d 201 (7th Cir. 1978), 77-1786, First Wisconsin Mortg. Trust v. First Wisconsin Corp.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 22 september 1978
    ...214 (1978); Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250, 252 (5th Cir. 1977); Akerly v. Red Barn System, Inc., 551 F.2d 539, 544 n. 12 (3d Cir. 1977); Schloetter v. Railoc of Indiana, Inc., 546 F.2d 706, 710 (7th Cir. 1976); NCK Organization Ltd. v. Bregman, 542 ......
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