Sullivan v. Pacific Indem. Co., 77-1228
| Decision Date | 12 December 1977 |
| Docket Number | No. 77-1228,77-1228 |
| Citation | 566 F.2d 444 |
| Parties | SULLIVAN, Andrew, M.D. and Sullivan, Edward, M.D. on behalf of themselves and all others similarly situated, Appellants, v. PACIFIC INDEMNITY COMPANY, Appellee. |
| Court | U.S. Court of Appeals — Third Circuit |
John J. O'Brien, Jr., Justine Gudenas, O'Brien & O'Brien, Philadelphia, Pa., for appellants.
Lawrence T. Hoyle, Jr., Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for appellee.
Before ROSENN and VAN DUSEN, Circuit Judges, and COHILL, District Judge. *
Appellants, Andrew Sullivan, M.D. and Edward Sullivan, M.D., obstetricians and gynecologists, instituted a diversity action against appellee, Pacific Indemnity Company, to obtain refunds of a portion of the insurance premiums they had paid to Pacific Indemnity for medical malpractice coverage. The two doctors alleged that Pacific Indemnity had coerced them into executing releases permitting the company to raise its malpractice insurance premium rates above those approved by the Pennsylvania Insurance Department by threatening to terminate the malpractice insurance they needed to practice medicine.
The doctors also filed a motion to maintain the suit as a class action pursuant to Fed.R.Civ.P. 23 on behalf of the approximately 500 obstetricians and gynecologists that Pacific Indemnity insured under a medical association program. On the day of trial, the district court denied that motion, finding "that the matters in dispute are principally individual in nature." Sullivan v. Pacific Indemnity, No. 76-1748 (E.D.Pa. Dec. 7, 1976). Appellants thereupon refused to present any evidence at trial, and the trial judge granted appellee's motion to dismiss under Fed.R.Civ.P. 41(b) for failure to prosecute. After the district judge denied appellants' additional requests relating to class certification, the two doctors appealed from a "final judgment" in accordance with 28 U.S.C. § 1291.
The question presented is whether a class certification determination, not eligible for interlocutory appeal under 28 U.S.C. § 1292, can be reviewed after the party requesting class certification suffers a dismissal pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. This procedure appears to be an attempt to circumvent this court's well-established policy disallowing interlocutory appeals relating to class determination absent special circumstances. In adhering to this policy we reiterate our disapproval of indirect attempts to accomplish that which cannot be done directly, as was clearly explained in Marshall v. Sielaff, 492 F.2d 917, 919 (3d Cir. 1974); the appeal will be dismissed for lack of an appealable order.
This court has consistently held that a class certification decision, per se, is not an appealable final order under 28 U.S.C. § 1291. Gardner v. Westinghouse Broadcasting Co., 559 F.2d 209 (3d Cir. 1977); Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir. 1976); Hackett v. General Host Corp., 455 F.2d 618 (3d Cir.), cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972). To be appealable as an interlocutory matter, the class certification decision must involve special circumstances prompting certification by the district judge under 28 U.S.C. § 1292(b) and approval by this Court. Kramer v. Scientific Control Corp., 534 F.2d 1085 (3d Cir. 1976); Katz v. Carte Blanche Corp., 496 F.2d 747 (3d Cir. 1974).
Having made no attempt to secure a § 1292(b) certification, appellants argue that instead they are seeking review of the class determination in the context of appealing the order dismissing the suit. Since appellants do not contend that the order of dismissal was in error, however, the only issue that appellants would have us decide is the correctness of the refusal of class certification by the district judge.
We view appellants' strategy as an attempt to avoid ...
To continue reading
Request your trial
- In re Nat'l Football League Players Concussion Injury Litig.
-
John's Insulation, Inc. v. L. Addison and Associates, Inc.
...trial judges to achieve the orderly and expeditious disposition of cases. Marshall, 492 F.2d at 919 (quoted in Sullivan v. Pacific Indemn. Co., 566 F.2d 444, 445-46 (3d Cir.1977); Huey, 608 F.2d at 1239; Ash, 739 F.2d at 497; and Sere, 852 F.2d at 288). The other reason for the exception is......
-
Halle v. W. Penn Allegheny Health Sys. Inc.
...order that is not appealable under 28 U.S.C. § 1291. Id. at 245. Then, relying on our class action decision in Sullivan v. Pac. Indem. Co. , 566 F.2d 444 (3d Cir. 1977), which we found to be controlling, we determined that the named plaintiffs in Camesi and Kuznyetsov improperly had attempt......
-
In re Morey
...that a "class certification decision, per se, is not an appealable final order under 28 U.S.C. § 1291." Sullivan v. Pacific Indem. Co., 566 F.2d 444, 445 (3d Cir. 1977). Appellate courts were generally reluctant to grant interlocutory review of class certification orders. Courts that did gr......