Corrugated Container Antitrust Litigation, In re

• Decision Date: 06 January 1983
• Docket Number: No. 82-2386,82-2386
• Citation: 694 F.2d 1041
• Parties: 1982-83 Trade Cases 65,134 In re CORRUGATED CONTAINER ANTITRUST LITIGATION. ANCHOR HOCKING, et al., Plaintiffs-Appellees, v. WILLAMETTE INDUSTRIES, INC., Georgia-Pacific Corporation and Longview Fibre Company, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1041

694 F.2d 1041

1982-83 Trade Cases 65,134

In re CORRUGATED CONTAINER ANTITRUST LITIGATION ANCHOR HOCKING, et al., Plaintiffs-Appellees, v. WILLAMETTE INDUSTRIES, INC., Georgia-Pacific Corporation and Longview Fibre Company, Defendants-Appellants.

No. 82-2386.

United States Court of Appeals Fifth Circuit.

Jan. 6, 1983.

Kirkland & Ellis, Thomas P. Hanrahan, Chicago, Ill., Miller, Nash, Yerke, Wiener & Hager, Norman J. Wiener, Portland, Or., for Willamette.

Cloyd R. Mellott, J. Gary Kosiwski, Pittsburgh, Pa., for Georgia-Pacific Corp.

Bogle & Gates, Richard M. Clinton, Arthur C. Claflin, Seattle, Wash., for Longview Fibre.

Freeman, Rothe, Freeman & Salzman, Jerrold E. Salzman, James T. Malysiak, Kenneth B. Drost, Lee A. Freeman, Jr., Robert C. Goldberg, Chicago, Ill., for appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before WISDOM, REAVLEY and TATE, Circuit Judges.

PER CURIAM:

This appeal involves a small fragment of a large antitrust case involving dozens of parties. Willamette Industries, Inc., a defendant in this lawsuit, contends that the district court erred in denying its motion for summary judgment to dismiss this suit based on collateral estoppel. We do not reach this contention. We conclude that we lack jurisdiction to hear this interlocutory appeal under 28 U.S.C. Sec. 1291 because the denial of the motion for summary judgment is not a final order.

This litigation grew out of a grand jury investigation into price-fixing in the corrugated container industry. Willamette was one of over thirty defendants charged in class actions with conspiring to fix the prices of corrugated containers in violation of the Sherman Act, 15 U.S.C. Sec. 1. The plaintiffs in this case opted-out of the class. Willamette elected to settle its liability with the class, but it remained as a party for discovery purposes. When the class action went to trial, the jury found in response to a special interrogatory that Willamette was not a conspirator.

Willamette attempted to use the finding in the class action suit that it was not a conspirator to bar the opt-out plaintiffs from litigating this issue. Willamette moved for summary judgment on the ground that the doctrine of collateral estoppel precluded the relitigation of the conspiracy issue. The district court denied this motion based on its conclusion that the policy underlying Fed.R.Civ.P. 23 prevents collateral estoppel from being used against plaintiffs who opt-out of class actions. Willamette appealed the denial of its summary judgment motion.

We do not reach the collateral estoppel issue, because the district court's order is not appealable. The jurisdiction of federal appellate courts is limited under 28 U.S.C. Sec. 1291 to the review of final orders. The denial of a summary judgment motion is not a final order, it determines only that the movant is not entitled to judgment as a matter of law and that there are triable issues of fact to be resolved. See Ardoin v. J. Ray McDermott & Co., 5 Cir.1981, 641 F.2d 277, 278; Fluor Ocean Services, Inc. v. Hampton, 5 Cir.1974, 502 F.2d 1169, 1170.

Willamette contends that the denial of its motion falls clearly within the collateral order doctrine established in Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. The collateral order doctrine is an exception to the final-judgment rule which applies in limited circumstances:

To come within the 'small class' of decisions excepted from the final-judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.

Coopers and Lybrand v. Livesay, 1978, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351, 357-58.

This Court has repeatedly stressed the extraordinarily limited nature of the "collateral order" doctrine:

Because of the problems of piecemeal review, and because courts are burdened beyond measure, we must be parsimonious in our analysis of appealability. A parsimonious analysis need not be unjust. It should simply be a strict application of Cohen. In the great majority of cases Cohen will lead the court to correctly conclude that an interlocutory order is not directly appealable.

North American Acceptance Corp. Securities Cases v. Arnall, Golden & Gregory, 5 Cir., 593 F.2d 642, 645, cert. denied, 1979, 444 U.S. 956, 100 S.Ct. 436, 62 L.Ed.2d 328. In addition, this Court has stressed the need to avoid piecemeal review in this very litigation:

The Cohen doctrine should be strictly construed.... Before the litigation is completed, the case will undoubtedly present numerous opportunities for parties dissatisfied with some aspect of...