Cmax, Inc. v. Hall

Decision Date19 March 1962
Docket NumberNo. 17517.,17517.
Citation300 F.2d 265
PartiesPetition of CMAX, INC., For a Writ of Mandamus, Petitioner, v. Honorable Peirson M. HALL, Chief Judge of the United States District Court for the Southern District of California, Central Division, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Phil Jacobson, H. J. Bischoff, Los Angeles, Cal., for petitioner.

Dunlap, Holmes, Ross & Woodson, John W. Holmes, Pasadena, Cal., for respondent Drewry Photocolor Corp., real party in interest.

Before BARNES, HAMLEY and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

In this mandamus proceeding, CMAX, Inc., seeks to vacate a district court order postponing the trial of petitioner's action against Drewry Photocolor Corporation.

CMAX is an air freight forwarder (indirect air carrier) operating under Civil Aeronautics Board authority and regulations.1 On December 15, 1959, it instituted an action against Drewry in the United States District Court for the Southern District of California, Central Division. It was alleged in the complaint that between January, 1955 and February, 1957, CMAX had received certain shipments from Drewry, that the proper charges under plaintiff's tariffs for the service rendered with regard to these shipments was $28,781.85, but that only $16,085.76 had been received. CMAX sought to recover the difference of $12,696.09, invoking district court jurisdiction under 28 U.S.C. § 1337 and 49 U.S. C.A. § 1373.2

Drewry answered, setting up certain defenses. Plaintiff and defendant moved for summary judgment but both motions were denied. Pretrial proceedings were then had. CMAX answered all requests for admissions and all interrogatories submitted and propounded by Drewry. On May 1, 1961, the district court signed a pretrial conference order, under provisions of Local Rule 9 of the United States District Court for the Southern District of California, Central Division, West's Ann.Code. On the same day the cause was set for trial on June 6, 1961.

On May 18, 1961, the bureau of enforcement of the Civil Aeronautics Board instituted an enforcement proceeding against CMAX.3 That proceeding was based on a complaint, signed by the Board's enforcement attorney. It was therein alleged that, since January 1, 1955, CMAX had charged, demanded, collected or received a greater or less or different compensation than the rates and charges specified in its applicable tariffs, for air transportation or services rendered to thirty named shippers. Included among these shippers was Drewry.4

As a further ground for the enforcement proceeding, it was alleged in the enforcement attorney's complaint:

"5. Since approximately August, 1959, and continuing to the present, Respondent has demanded additional payments from various shippers, including but not limited to, those enumerated in paragraph 3 above, allegedly for the purpose of effecting compliance with the Act by adjustment of the differences between the rates and charges improperly assessed at the time of shipment, as charged in paragraphs 4C and 4D above, with the rates and charges for the services rendered, as specified in Respondent\'s tariffs that were effective at the time of shipment; however, certain of these claimed adjustments have not been in accordance with Respondent\'s tariffs, effective at the time of shipment."

The relief requested by the enforcement attorney was revocation of all operating authority previously granted to CMAX, and such other and further relief as the Board might deem proper. In the petition for enforcement filed by the Board's bureau of enforcement on the basis of this complaint, the purpose of the proceeding was stated as follows:

"* * * so that the Board may determine whether any violations have been or are being committed as alleged in said complaint, and whether the relief requested therein should be granted."

Eight days after this Board proceeding was instituted, Drewry gave notice that it would move in the district court for a continuance of the trial in CMAX v. Drewry to a date subsequent to the completion of the proceedings before the Civil Aeronautics Board. This motion was supported by an affidavit of one of Drewry's attorneys. It was therein alleged that there were then pending, in that district court, at least twelve actions against various shippers by CMAX, in which the latter was seeking recovery for alleged undercharges. It was further alleged that CMAX had made similar demands against many of the other shippers listed in the administrative complaint, and that the total recoveries being sought by CMAX were in excess of $500,000.

It was also alleged in the affidavit of this attorney that in the Board proceeding there will be a comprehensive investigation as a result of which there will be developed and made available for the information of the district court the facts and circumstances concerning the practices followed by CMAX in undercharging customers. The demands being made by CMAX, it was alleged, involve a great variety of circumstances and intricate factual situations suggesting a program of willful and intentional abuse of the position of CMAX as a freight forwarder. It was further alleged that if the Board proceeding results in an order depriving CMAX of its operating authority,

"* * * a serious legal question will arise as to whether CMAX is entitled to pursue its former customers on the theory that it is obligated by its duty as a common carrier to correct alleged undercharges."5

Drewry's motion to postpone the trial was argued on June 6, 1961, and on that day granted. The motion was granted on the ground that the Board proceeding might result in an order which would affect this and other pending district court actions in which CMAX is seeking to collect asserted undercharges.6 The order setting the trial for June 6, 1961 was vacated, the trial "to be reset on written notice." CMAX then commenced this mandamus proceeding.7

A district court has inherent power to control the disposition of the causes on its docket in a manner which will promote economy of time and effort for itself, for counsel, and for litigants. The exertion of this power calls for the exercise of a sound discretion. Where it is proposed that a pending proceeding be stayed, the competing interests which will be affected by the granting or refusal to grant a stay must be weighed. Among these competing interests are the possible damage which may result from the granting of a stay, the hardship or inequity which a party may suffer in being required to go forward, and the orderly course of justice measured in terms of the simplifying or complicating of issues, proof, and questions of law which could be expected to result from a stay. See Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 81 L.Ed. 153.

Where the district court, upon a consideration of such factors, grants a stay, such action may be tested in this court by way of mandamus. See Chronicle Publishing Co. v. National Broadcasting Co., 9 Cir., 294 F.2d 744. But mandamus is a drastic remedy to which resort should be had only in extraordinary cases. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290. The granting of such a writ is discretionary with this court, and such relief will not be accorded when to do so would work a substantial hardship on the affected parties. United States v. Carter, 9 Cir., 270 F.2d 521, 524. Even where hardship will not result from the granting of a writ, this will not be done except upon a strong showing that the district court has abused its discretion. Chronicle Publishing Co. v. National Broadcasting Co., 294 F.2d at 747.

Arguing that the district court has abused its discretion in granting the stay here in question, CMAX asserts, in effect, that the proceeding before the Civil Aeronautics Board cannot resolve any of the issues which must be decided in the case of CMAX, Inc. v. Drewry Photocolor Corp., and that the delay in the latter proceedings will result in irreparable injury to CMAX and in a miscarriage of justice.

If in fact there is a fair possibility that a stay of the district court proceeding will result in irreparable injury and a miscarriage of justice, petitioner's prospect of showing an abuse of discretion would be considerably increased. As stated in Landis v. North American Co., 299 U.S. 248, 255, 57 S. Ct. 163, 166,...

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