Fleischer v. Phillips

• Decision Date: 20 February 1959
• Docket Number: Docket 25152.,No. 58,58
• Citation: 264 F.2d 515
• Parties: Dave FLEISCHER, individually and as Trustee in dissolution of Fleischer Studios, Incorporated, Plaintiff-Appellant, v. Louis PHILLIPS et al. (Phillips, Nizer, Benjamin & Krim), Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

264 F.2d 515 (1959)

Dave FLEISCHER, individually and as Trustee in dissolution of Fleischer Studios, Incorporated, Plaintiff-Appellant, v. Louis PHILLIPS et al. (Phillips, Nizer, Benjamin & Krim), Respondents-Appellees.

No. 58, Docket 25152.

United States Court of Appeals Second Circuit.

Argued January 6, 1959.

Decided February 20, 1959.

Certiorari Denied May 25, 1959.

Gustave B. Garfield, New York City. for plaintiff-appellant.

Seymour Shainswit, of Phillips, Nizer, Benjamin, Krim & Ballon, New York City, for appellee Louis Phillips.

Simon H. Rifkind, of Paul, Weiss, Rifkind, Wharton & Garrison, New York City (Edward N. Costikyan, of Paul, Weiss, Rifkind, Wharton & Garrison, New York City, on the brief), for appellees Robert S. Benjamin and Arthur B. Krim.

Daniel Huttenbrauck, of Mendes & Mount, New York City, for appellees A. A. P., Inc., and Associated Artists Productions, Inc.

Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.

Certiorari Denied May 25, 1959. See 79 S.Ct. 1139.

CLARK, Chief Judge.

These are appeals from orders which deny plaintiff relief sought against respondents, defense attorneys in his pending action against Paramount Pictures, Inc., and other motion picture producers and distributors. Though respondents have not raised the issue, we must first decide whether the orders are appealable and give us jurisdiction for review. In substance the primary relief sought in each motion was the disqualification of the firm of Phillips, Nizer, Benjamin & Krim, which has represented defendants Paramount Pictures, Inc., Paramount Pictures Corporation, and Flamingo Films, Inc. Before Judge Herlands plaintiff contended that Louis Phillips of that firm had formerly represented plaintiff in matters relevant to this litigation, and sought an order barring the firm from the action and enjoining it from representing defendants while disqualified. The motion before Judge Palmieri was in form an application solely for an injunction pendente lite; disqualification was not requested. But the basis of the motion — that members of the law firm had allegedly acquired and were intending to acquire an interest in the subject matter of the action in violation of Canon 10 of the Code of Legal Ethics, N.Y. Judiciary Law, Appendix, McKinney's Consol.Laws, c. 30 — was one which if substantiated most certainly would have resulted in counsel's disqualification; and the injunctive relief requested — that an allegedly champertous transaction be undone and the consummation of another prevented — is as collateral to the basic thrust of the motion as the incidental injunctive relief sought before Judge Herlands. The real and only bite to each motion is the attempt to secure the exclusion of the lawyers from the case; and once disqualification is obtained, all else is superfluous. Hence the prayers for injunctive relief add nothing to the orders denying the motions and render neither of them automatically appealable under 28 U.S.C. § 1292(a) (1). Federal Glass Co. v. Loshin, 2 Cir., 224 F.2d 100, 101. See also Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 181 F.2d 160; Albert v. School Dist. of Pittsburgh, 3 Cir., 181 F.2d 690, 691; American Airlines v. Forman, 3 Cir., 204 F.2d 230; District 65, Distributive, Processing and Office Workers Union of New York and New Jersey v. McKague, 3 Cir., 216 F.2d 153; Wallace Products, Inc. v. Falco Products, 3 Cir., 242 F.2d 958; Division 689, etc. v. Capital Transit Co., 97 U.S. App.D.C. 4, 227 F.2d 19; 6 Moore's Federal Practice 49-51 (2d Ed.1953).

Accordingly, these appeals can be justified only if the orders are within the class made appealable by Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528. But surely this dreary and acrimonious proceeding, which has so overwhelmed the substance of this litigation that we are not told and are uncertain what the action is all about, does not arise from orders within "that small class which finally determines claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Indeed, the motion before Judge Palmieri involves no claim of right by plaintiff. The allegedly champertous transactions made the basis of that application caused no direct injury to plaintiff; plaintiff's status on that motion seems to be comparable to that of any citizen or officer of the court calling to the attention of the court a possible instance of misconduct occurring before it. And Judge Herlands' decision that no connection had been shown between Phillips' representation of plaintiff in the distant past and the issues involved in this litigation, though most thorough and persuasive, seems merely a procedural step, not of final character, and subject to reconsideration or change as new facts may develop. As pointed out in the Cohen case, 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, the very purpose of the "final" decision requirement of 28 U.S.C. § 1291 "is to disallow appeal from any decision which is tentative, informal or incomplete."

In Harmar Drive-In Theatre, Inc. v. Warner Bros. Pictures, 2 Cir., 239 F.2d 555, rehearing denied 2 Cir., 241 F.2d 937, certiorari denied 355 U.S. 824, 78 S.Ct. 31, 2 L.Ed.2d 38, a divided court held that, since an order disqualifying an attorney had elements of collateral finality, there should be no distinction in an order refusing to disqualify. But surely that does not follow, for the finality of the two orders is as dissimilar as their results. An order granting disqualification seriously disrupts the progress of the litigation and decisively sullies the reputation of the affected attorney; but one refusing such relief merely allows the action to proceed and has no permanent effect of any kind. Here, as with a motion to dismiss an action or to grant summary judgment, while the affirmative grant of the requested relief is final and appealable, a mere refusal to act is necessarily less conclusive and ought not to be reviewed by this court. The ill effect of the Harmar ruling, which has presumably led to this wasteful appeal where the original issues are altogether lost, is even better demonstrated by that very case itself; the reversal there of the district court's orders led to lengthy delay in the progress of the litigation and ultimately to dismissal for failure to prosecute. Although we did recently reverse this dismissal as improvident, Colonial Drive-In Theatre, Inc. v. Warner Bros. Pictures, 2 Cir., 262 F.2d 856, the years spent in getting that case under way again ought not often to be repeated.

In this circuit in the past, powerful voices have been heard in support of interlocutory appeals and the continuing surveillance of trial court judges implicit therein. But research of a committee of the Judicial Conference of the United States, headed by the late great Judge Parker, disclosed that a majority of the federal judges were opposed to such a change and felt that the function of appeal was review, rather than trial supervision; and so the Conference limited its recommendations of new appellate jurisdiction to narrowly confined areas where both reviewed and reviewing judges felt that ultimate adjudication would be materially advanced. 28 U.S.C. § 1292(b), effective Sept. 2, 1958. In the light of this experience and this enactment, the desirability of maintaining the settled federal principle against piecemeal appeals seems manifest. This is the position of a majority of the present active circuit judges shown in various rulings usually on motions which have not seemed to call for extensive opinion writing.¹ Hence upon principle and upon these more recent authorities we are constrained to hold the present orders not final for the purpose of appeal.

Even though the case thus cannot be accepted on the merits, we have necessarily had to explore them to reach our conclusion; and because conduct of members of the bar has been so severely questioned, we note our concurrence with the conclusions of the two district judges that respondents have done nothing improper. The strictures are...