Firestone Tire & Rubber Co. v. General Tire & Rubber Co.
| Decision Date | 06 August 1970 |
| Docket Number | No. 20594,20631.,20594 |
| Citation | 431 F.2d 1199 |
| Parties | The FIRESTONE TIRE & RUBBER CO., Petitioner-Appellant, v. The GENERAL TIRE & RUBBER CO., Respondent-Appellee. The FIRESTONE TIRE & RUBBER CO., Petitioner-Appellant, v. Honorable Frank J. BATTISTI, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Victor DeMarco, Jones, Day, Cockley & Reavis, Cleveland, Ohio, for appellant.
Charles J. Merriam, Merriam, Marshall, Shapiro & Klose, Chicago, Ill., for appellee.
Before EDWARDS, McCREE and BROOKS, Circuit Judges.
In these cases, which we have consolidated because of their common factual background, we consider a motion to dismiss (No. 20594) and a petition for a writ of mandamus (No. 20631).
In case number 20594, appellant seeks review of an order of the District Judge adjudicating it guilty of perpetrating a fraud upon the federal District Court in Baltimore, Maryland. Appellee General Tire has filed a motion to dismiss on the ground that the District Judge's order is not a final order within the meaning of 28 U.S.C. § 1291 and that this court therefore lacks jurisdiction to review the order at this time. We agree. In determining whether an order is "final", we must balance the "competing considerations of `the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other'". Gillespie v. United States Steel Corp., 379 U.S. 148, 152-153, 85 S.Ct. 308, 310, 13 L.Ed.2d 199 (1964), quoting from Dickinson v. Petroleum Conversion Corp., 338 U. S. 507, 511, 70 S.Ct. 322, 94 L.Ed. 299 (1950). In the present case, we can perceive no serious injustice that would result from delaying review of the District Judge's order until a final adjudication of the merits of this controversy. On the other hand, proceeding to trial without the interference of an appeal will hasten the termination of this already protracted piece of litigation. Moreover, although the District Judge stated that he was dismissing the Baltimore case, he "consolidated" the issues of that case into the Cleveland case. The fraud adjudication therefore was preserved for appeal at the appropriate time.
In case number 20631, appellant asks that we issue a writ of mandamus directing the District Judge either to reverse his ruling on the issue of patent misuse and to dismiss the Cleveland case, or to certify that appellant should be permitted to prosecute an interlocutory appeal on this issue pursuant to 28 U.S.C. § 1292(b). The first alternative is a transparent...
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...F.2d n. 14.127 See, e. g., D'Ippolito v. Cities Serv. Co., 374 F.2d 643, 649 (2d Cir. 1967). But see Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 431 F.2d 1199 (6th Cir. 1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971) (refusal to certify reviewable for c......
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General Tire & Rubber Co. v. Firestone Tire & Rubber Co.
..."B1000"—Baltimore transcript page; "C1000"—Cleveland transcript page. 2 Firestone's appeal from this order was dismissed. 431 F.2d 1199 (6th Cir. 1970), cert. den. 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 3 Firestone's petition for writ of mandamus with respect to this order was denied. ......
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Peabody Coal Co. v. LOCAL U. NOS. 1734, 1508 & 1548, UMW
...District Court's order should be considered a final order for the purposes of 28 U.S.C. § 1291. See, Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 431 F.2d 1199 (6th Cir. 1970) (implementing Gillespie v. United States Steel Corp., supra), cert. denied, 401 U. S. 975, 91 S.Ct. 11......
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General Tire & Rubber Co. v. Firestone Tire & Rubber Co.
...Litigation: General Tire & Rubber Co. v. Firestone Tire & Rubber Co., 349 F.Supp. 333 (N.D.Ohio 1972) (motion to dismiss denied); 431 F.2d 1199 (6th Cir.1970) (motion to dismiss appeal of order on fraud question granted), cert. denied, 401 U.S. 975, 91 S.Ct. 1196, 28 L.Ed.2d 325 (1971). Gen......