American Airlines v. Forman, 10917

• Decision Date: 08 April 1953
• Docket Number: 10922.,No. 10917,10917
• Citation: 204 F.2d 230
• Parties: AMERICAN AIRLINES, Inc. et al. v. FORMAN, Judge. SLICK AIRWAYS, Inc. v. AMERICAN AIRLINES, Inc. et al.
• Court: U.S. Court of Appeals — Third Circuit

204 F.2d 230 (1953)

AMERICAN AIRLINES, Inc. et al. v. FORMAN, Judge.

SLICK AIRWAYS, Inc. v. AMERICAN AIRLINES, Inc. et al.

Nos. 10917, 10922.

United States Court of Appeals Third Circuit.

Argued March 3, 1953.

Decided April 8, 1953.

Morrison, Lloyd & Griggs, Hackensack, N. J., for petitioner and defendant-appellant American Airlines, Inc., on the brief (Debevoise, Plimpton & McLean, New York City, of counsel).

Stryker, Tams & Horner, Newark, N. J., for petitioner and defendant-appellant, United Air Lines, Inc., on the brief (Mayer, Meyer, Austrian & Platt, Chicago, Ill., of counsel).

Katzenbach, Gildea & Rudner, Trenton, N. J., for petitioner and defendant-appellant, Transcontinental & Western Air, Inc., on the brief (Chadbourne, Parke, Whiteside, Wolff & Brophy, New York City, of counsel).

Pitney, Hardin & Ward, Newark, N. J., for petitioner and defendant-appellant, Air Cargo, Inc., on the brief.

Minton, Dinsmore & Lane, Trenton, New Jersey, Steptoe & Johnson, Washington, D. C., for intervening respondent and plaintiff-appellee, on the brief (Arnold, Fortas & Porter, Washington D. C., of counsel).

Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.

HASTIE, Circuit Judge.

These two proceedings have the single purpose of obtaining a review of an order of the District Court for the District of New Jersey denying a defense motion to dismiss the complaint in a civil action for money damages.

On its face the complaint states a familiar type of claim for treble damages¹ under the anti-trust laws. The plaintiff, Slick Airways, alleges that it has been injured by a conspiracy of its competitors, the defendant air lines, to drive it out of the air freight business.

The defendants moved to dismiss the complaint because in their view the court could not adjudicate the merits of this controversy without unlawfully encroaching upon the primary jurisdiction of the Civil Aeronautics Board over a broad range of matters involved in or affecting the commercial transportation of freight by air.

Full hearing on the motion and a rehearing are reflected in two elaborate opinions by the district court and a consequent order denying the motion without prejudice to its renewal after answer and the more precise framing of the actually contested issues through appropriate pretrial procedure. 1952, 107 F.Supp. 199. From this order defendants have appealed. They also have filed as a separate original proceeding in this court a "Petition for Writ of Certiorari or Mandamus or Prohibition" asking that we restrain the district court from going forward with the anti-trust action in normal course as it proposes.

We consider first the appeal and a motion to dismiss it filed by appellee.

Appellants concede that they are attempting to appeal from an order that is not final. Therefore, if we have jurisdiction at all it must be by virtue of Section 1292(1) of Title 28 of the United States Code. Narrowing the issue still further, appellants assert that we have jurisdiction under the provision of Section 1292(1) which enables us to entertain appeals from "Interlocutory orders of the district courts * * * refusing * * * injunctions * * *." It is argued that when the district court denied the motion to dismiss the complaint it "refused an injunction" in the sense that it refused to stay its own hand. This analysis is said to be in line with Enelow v. New York Life Insurance Co., 1935, 293 U.S. 379, 55 S.Ct. 310, 79 L. Ed. 440, and Ettelson v. Metropolitan Life Insurance Co., 1942, 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176. But these cases concerned interlocutory decision on equitable defenses interposed in actions at law. Here we have a simple motion to dismiss for lack of jurisdiction. And the stated willingness of movant to accept a "stay" rather than out-right dismissal did not change the essential character of the pleading.

Moreover, the vitality of the Enelow and Ettelson doctrine is now at least gravely impaired by City of Morgantown, W. Va. v. Royal Insurance Co., 1949, 337 U.S. 254, 69 S.Ct. 1067, 93 L.Ed. 1347. Whether the impairment is fatal the majority of the Supreme Court did not decide, and we shall not anticipate that decision. But we do think the manifest attitude of the Supreme Court in Morgantown is such that Enelow and Ettelson should be restricted to cases clearly within their purview. They should not be substantially extended as appellants' position would require here.

In addition, this case involves our rationalization of the "refusing an injunction" clause of Section 1292(1), elaborated in Morganstern Chemical Co. v. Schering Corp., 3 Cir., 1950, 181 F.2d 160. There we analysed an order denying a motion for summary judgment as merely causing a postponing of decision on issues until later in the lawsuit. Therefore, it lacked that substantial effect upon the rights of the parties which would be necessary to bring it within the policy of Section 1292 (1) in favor of a restricted group of interlocutory appeals. Thus, there was nothing to justify any broad construction of the language of the statute to cover such a situation. Similarly, in the present case the court has declined to stop the proceeding at this early stage, yet has made it clear that the request may be renewed and will be considered again before trial if the moving party so desires after pretrial clarification of issues. Thus, this case, like the Morganstern case, is as far outside of the policy of Section 1292(1) as it is beyond the literal provisions of that subsection. We have no authority to entertain this interlocutory appeal.

The case for relief by mandamus or prohibition is no better. Although this extraordinary relief is technically the subject of a separate suit initiated in this court, it is being sought as an alternative means of obtaining immediate review of an interlocutory order which can as effectively² be reviewed, if need be, by appeal after the district court shall have finished with the principal lawsuit. For jurisdictional purposes it is argued by the petitioners that we can and should act under Section 1651 (a) of Title 28 of the United States Code which authorizes us to issue "all writs necessary or appropriate in aid of our * * * jurisdictions and agreeable to the usages and principles of law." But the relief sought here is not "in aid of" our appellate jurisdiction. Rather, it is an unwarranted anticipation of that jurisdiction. Statutory restrictions upon our review of interlocutory orders cannot be circumvented by such resort to petitions for mandamus and prohibition. Our position in this regard is currently stated and elaborated, with a review of the precedents in this Circuit, in Pennsylvania Railroad Company v. Kirkpatrick, 3 Cir., 203 F.2d 149.

It is true that this petition, unlike that in Pennsylvania Railroad Company v. Kirkpatrick, challenges what can fairly be called a jurisdictional ruling. But that difference alone is not enough to make a peremptory writ appropriate. See Ex parte Chicago, R. I. & Pac. Ry. Co., 1921, 255 U.S. 273, 275-276, 41 S.Ct. 288, 65 L.Ed. 631. The challenged assumption or denial of jurisdiction must be so plainly wrong as to indicate failure to comprehend or refusal to be guided by unambiguous provisions of a statute or settled common law doctrine. If a rational...