Benton Harbor Mal. Indus. v. INTERNATIONAL U., UA, A. & AIW, 16958

• Decision Date: 26 January 1966
• Docket Number: 16977.,No. 16958,16958
• Citation: 355 F.2d 70
• Parties: BENTON HARBOR MALLEABLE INDUSTRIES, Petitioner-Appellant, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), and Benton Harbor Malleable Local No. 880 of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

355 F.2d 70 (1966)

BENTON HARBOR MALLEABLE INDUSTRIES, Petitioner-Appellant, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), and Benton Harbor Malleable Local No. 880 of International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), Respondents-Appellees.

Nos. 16958, 16977.

United States Court of Appeals Sixth Circuit.

January 26, 1966.

Theophil C. Kammholz, Victor L. Lewis, Chicago, Ill., Elden W. Butzbaugh, Benton Harbor, Mich., on brief for petitioner; Vedder, Price, Kaufman & Kammholz, Chicago, Ill., Butzbaugh, Page & Byrns, Benton Harbor, Mich., of counsel.

Stanley E. Beattie, Detroit, Mich., on brief for respondents; Joseph L. Rauh, Jr., Washington, D. C., Stephen I. Schlossberg, Detroit, Mich., Ned W. Deming, Kalamazoo, Mich., of counsel.

Before PHILLIPS, EDWARDS and CELEBREZZE, Circuit Judges.

PER CURIAM.

A motion has been submitted to this court by petitioner-appellant for leave to file a petition for writ of certiorari to review the order of the district court granting a new trial. This motion and the petition for certiorari are docketed under No. 16,958. Petitioner-appellant has undertaken to perfect an appeal, which is docketed as No. 16,977, and has filed a motion for joint consideration of the petition for writ of certiorari and appeal. Respondents have filed a motion to strike the appeal and a brief in opposition to the petition for writ of certiorari.

The issuance of a writ of certiorari by this court is sought under the All Writs Statute, 28 U.S.C. § 1651(a).

Petitioner sued respondents under Section 301 of the Labor-Management Relations Act, 29 U.S.C. § 185, seeking to recover damages resulting from three strikes conducted by the respondent labor unions allegedly in violation of a collective bargaining agreement containing a no-strike clause. The jury returned a verdict in the amount of $115,000 against the respondent Local Union and $1,210,000 against the respondent International Union.

District Judge W. Wallace Kent granted a motion for a new trial on the ground of the dollar difference in the jury's verdicts against the respondents-appellees, saying:

"It appears to the satisfaction of this court, and plaintiff does not deny, that the Local Union participated in all of the strike activities, and, therefore, viewing the evidence in the best light for the plaintiff, must be at least, and no less than, equally liable with the International Union."

Upon motion for reconsideration, the district judge denied an interlocutory appeal under 28 U.S.C. § 1292.

Petitioner contends that the district court exceeded its jurisdiction and abused its discretion in ordering a new trial, and that the order is in violation of Rules 51, 59(a), 59(b) and 61 of the Federal Rules of Civil Procedure.

"It is settled law that an appeal does not lie from an order granting a new trial." Ford Motor Co. v. Busam Motor Sales, 185 F.2d 531, 533 (C.A.6).

It is equally well established that an interlocutory appeal from an order of the district court will not be allowed unless the district judge has stated in writing that the order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. §...