Three J Farms, Inc. v. Alton Box Bd. Co.

Citation609 F.2d 112
Decision Date09 November 1979
Docket NumberNo. 78-1896,78-1896
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Parties1980-1 Trade Cases 63,001 THREE J FARMS, INC., U. S. Textile Corporation, Shapiro & Son Bedspread Corp. and Troy H. Cribb & Sons, Inc., in behalf of themselves and all other parties similarly situated and circumstanced, Appellants, v. ALTON BOX BOARD CO.; Container Corporation of America; Hoerner Waldorf Corp.; Inland Container Corp.; St. Joe Paper Co.; St. Regis Paper Co.; Stone Container Corp.; Tim Poffenbarger; Ennis McCarter; Westvaco Corp.; Boise Cascade Corp.; Champion International, Inc.; the Chesapeake Corp. of Virginia; Consolidated Packaging Corp.; the Continental Group, Inc.; Corco, Inc.; Crown-Zellerbach Corp.; Diamond International Corp.; Dura-Containers, Inc.; Fiberboard Corp.; Georgia-Pacific Corp.; Green Bay Packaging, Inc.; International Paper Co.; Interstate Container Corp.; Longview Fibre Co.; MacMillan Bloedel, Inc.; MacMillan Bloedel Containers, Inc.; Menasha Corp.; Olinkraft, Inc.; Owens-Illinois, Inc.; Packing Corp. of America; Potlatch Corp.; Southwest Forest Industries, Inc.; Union Camp Corp.; U. S. Corrugated Fibrebox Co.; Western Kraft East, Inc.; Weyerhaeuser; Williamette Industries; the Fibre Box Assn., an unincorporated association; and "John Doe" and "Richard Roe", the names"John Doe" and "Richard Roe" being fictitious; the parties intended being those parties who participated in the unlawful act alleged herein, Appellees.

Robert L. Stoddard, Spartanburg, S. C. (Moore, Stoddard & Stoddard, Spartanburg, S. C., on brief), for appellants.

Thomas G. Slater, Jr., Richmond, Va. (Ray V. Hartwell, III, Edgar M. Roach, Jr., Hunton & Williams, Richmond, Va., on brief), for appellees.

Before FIELD, Senior Circuit Judge, and WIDENER and HALL, Circuit judges.

FIELD, Senior Circuit Judge:

Commencing in March of 1977, in the wake of a federal grand jury investigation in the Southern District of Texas, a number of actions were filed in various federal courts throughout the country against corrugated container manufacturers, including all of the defendants in the present case, alleging that they had violated Section 1 of the Sherman Act, 15 U.S.C. § 1, over an eighteen year period by engaging in a nationwide conspiracy to fix the prices of their products. After some 37 civil actions had been filed, a motion was made before the Judicial Panel on Multidistrict Litigation to consolidate all of the cases in one judicial district, and on November 29, 1977, the Panel transferred the cases to the Southern District of Texas. Thereafter, virtually all of the class plaintiffs amended their several complaints by adopting a single Unified and Consolidated Complaint. Additionally, a nationwide class of all persons who had purchased containers or other corrugated products from any defendant, including any subsidiary or affiliate, at any time during the period from January, 1960, to January 25, 1978, was certified in the multidistrict litigation. Thereafter, on June 30, 1978, the plaintiffs in the present case, who concededly are members of the class certified in the multidistrict litigation, filed this action in the state court in Spartanburg County, South Carolina, based upon the antitrust provisions of the South Carolina Code, §§ 39-3-10, Et seq. (1976).

On July 31, 1978, the defendants removed the case to the United States District Court for the District of South Carolina, and on August 16, 1978, the plaintiffs filed a motion to remand to the state court, charging that there was neither federal question nor diversity jurisdiction. On August 29, 1978, the defendants filed a motion for a stay of further proceedings, or extending the defendants time to respond to plaintiffs' motion to remand until the Multidistrict Panel acted upon motions pending in the Texas litigation. On October 13, 1978, the district judge entered an order in which he found, Inter alia, that there was no federal question jurisdiction nor complete diversity of citizenship between the parties and, accordingly, granted the motion to remand the case to the state court. The district judge also denied the defendants' motion for a stay, stating that his consideration of the removal issue with respect to subject matter jurisdiction was not dependent upon any proceedings in the multidistrict litigation. Pursuant to this order, the original pleadings and a certified copy of the docket entries were forwarded to the clerk of the state court.

On October 23, 1978, the defendants filed a motion asking that the remand order of October 13th be held invalid because the defendants had inadvertently been denied the opportunity to argue in opposition to the plaintiffs' motion to remand. Following a hearing on this motion, on October 26, 1978, the court entered an order which stated that the order of October 13th had been entered "by mistake and inadvertence" and declared it to be null and void. The clerk of the court was directed to deliver a copy of the order to the clerk of the state court "and to retrieve the file mistakenly returned to that Court." Pursuant to the directions of the court, the defendants filed a memorandum in opposition to the remand and on November 29, 1978, the district judge entered an order in which he reviewed the case at some length and denied the remand to the state court. From this action of the district court the plaintiffs have appealed.

The defendants have asked that we dismiss this appeal on the ground that the district court's order of November 28, 1978, denying remand is neither a final decision nor an interlocutory order of such a nature that an immediate appeal may be taken. It is, of course, beyond question that an order of a district court denying a motion to remand, standing alone, is not a final order appealable under 28 U.S.C. § 1291. Aberle Hosiery Co. v. American Arbitration Assn., 461 F.2d 1005, 1006 (3 Cir. 1972); Capital Bancshares, Inc. v. North American Guar. Ins. Co., 433 F.2d 279, 282 (5 Cir. 1970). However, while we have no direct appellate jurisdiction in such a case, we may, nevertheless, treat this appeal as a petition for a writ of mandamus. 1 Young Properties Corp. v. United Equity Corp., 534 F.2d 847, 854 (9 Cir. 1976); Kasey v. Molybdenum Corporation of America, 408 F.2d 16 (9 Cir. 1969); International Products Corporation v. Koons, 325 F.2d 403 (2 Cir. 1963). We recognize, of course, that we should proceed with caution in using the writ of mandamus when a direct appeal is prohibited, and should resort to such a jurisdictional basis only under compelling circumstances. We think, however, the circumstances of the present case are of such a nature that we should draw upon our authority under the "all-writs" statute, 28 U.S.C. § 1651, and exercise our power of mandamus to review the action of the district court.

We do not address ourselves to the district court's appraisal of the jurisdictional questions in either of its orders for in our opinion the entry of the order of remand on October 13, 1978, divested the district court of all jurisdiction in this case and precluded it from entertaining any further proceedings of any character, including the defendants' motion to vacate the original remand order. See Garrison v. Atlantic Life Ins. Co., 18 F.Supp. 469 (E.D.S.C.1937). The prohibition against further consideration of the remand order is found in the plain language of 28 U.S.C. § 1447(d) which commands that an order "remanding a case to the State court from which it was removed is not reviewable on appeal Or otherwise * * *." (Emphasis added) This proscription against review was recognized by the Court in Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977), and by our court in Sullivan v. Simons, 337 F.2d 239 (4 Cir. 1964). Unquestionably, the statute not only forecloses appellate review, but also bars reconsideration of such an order by the district court. In the case of In re La Providencia Development Corporation, 406 F.2d 251 (1 Cir. 1969), the district court had reconsidered its remand order and entered a second order purporting to vacate the remand. In granting a writ of mandamus, the court observed that "there is no more reason for a district court being able to review its own decision, and revoke the remand, than for an appellate court requiring it to do so. Both are foreclosed; nothing could be more inclusive than the phrase 'on appeal or otherwise.' " Id. at 252-253. The...

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    • U.S. Court of Appeals — Fifth Circuit
    • 1 Octubre 1984
    ...the federal court with jurisdiction over the case, runs counter to fundamental precepts of remand. Cf. Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112, 115 (4th Cir.1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980); In re La Providencia Development, supra, at......
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    ...court nonetheless intended--rightly or wrongly--to remand on one of the grounds listed therein. Compare Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112, 115-16 (4th Cir.1979) (applying Sec. 1447(d) where district court's order of remand "clearly determined that there was an absence......
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    ...v. Alton Box Board Co., 1978 U.S. Dist. LEXIS 14134, 1979-1 Trade Cas. (CCH) ¶ 62,423, at 76,547 (D.S.C. 1978), rev’d on other grounds , 609 F.2d 112 (4th Cir. 1979). 14. 51 S.E. at 461-62. 15. 223 F.R.D. 335 (E.D. Pa. 2004). South Carolina 44-3 have engaged in a scheme that took place and ......
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