Harvey Aluminum v. American Cyanamid Co.

Decision Date16 March 1953
Docket NumberNo. 203,Docket 22624.,203
Citation203 F.2d 105
CourtU.S. Court of Appeals — Second Circuit

Donovan, Leisure, Newton, Lumbard & Irvine, New York City (Walter R. Mansfield, William C. Garrett, and Robert F. Morton, New York City, of counsel), for defendant-appellants, American Cyanamid Co. and Berbice Co. Limited.

Lundgren, Lincoln, Peterson & McDaniel, New York City (Walter Lundgren, New York City, of counsel), for defendant-appellant Reynolds Metals Co.

Hyman I. Fischbach, New York City (Hyman I. Fischbach and Vincent J. Crowe, New York City, of counsel), for plaintiffs-appellees Harvey Aluminum Inc. and Harvey Machine Co. Inc.

Before AUGUSTUS N. HAND, CHASE and FRANK, Circuit Judges.

Writ of Certiorari Denied May 25, 1953. See 73 S.Ct. 949.

AUGUSTUS N. HAND, Circuit Judge.

This action was brought on December 5, 1952 by Harvey Aluminum Inc. (hereafter referred to as "Harvey"), against American Cyanamid Company (hereafter referred to as "Cyanamid") seeking specific performance of an alleged agreement to sell the tangible assets of Cyanamid's subsidiary Berbice Company Limited (hereafter referred to as "Berbice"). These assets consist of facilities for the processing and mining of bauxite ore from certain land in British Guiana. At the time of the filing of its complaint Harvey obtained an ex parte temporary restraining order pending the hearing and determination of its motion for an injunction pendente lite against the sale or transfer of the assets in question by Cyanamid to anyone other than the plaintiff. At the conclusion of a hearing before Judge Sugarman, during the course of which Harvey Machine Co., Inc., and Berbice were added as parties plaintiff and defendant respectively, plaintiffs' motion for a preliminary injunction was denied. The district court found, inter alia, that the plaintiffs' chances of success on the ultimate trial were "remote, if not completely nil." On December 15, after the temporary stay had been dissolved by Judge Sugarman, an amended complaint was filed by the plaintiffs adding Reynolds Metals Company (hereafter referred to as "Reynolds") as a defendant and seeking as additional relief that any assets received by Reynolds from Berbice be subjected to a trust in favor of the plaintiffs. On December 17 notices of appearance were filed on behalf of all three defendants. On the same day plaintiffs filed a notice of appeal from judge Sugarman's order denying a preliminary injunction, also entered on December 17. An application by the plaintiffs for a stay pending appeal was denied by Judge Augustus N. Hand on December 18, and on December 22 Berbice transferred its assets to the defendant Reynolds. Nothing has been done either to perfect or dismiss the appeal. Fearing that the plaintiffs were about to bring suit in British Guiana, the defendants obtained an ex parte order from Judge Conger on January 16, 1953, temporarily staying the plaintiffs and directing them to show cause why they should not be enjoined from commencing any legal proceeding in any other jurisdiction involving the same subject matter. On January 19, prior to the return day of the order to show cause, the plaintiffs filed a notice of dismissal stating that they "hereby vountarily dismiss this action as against all defendants." Judge Clancy on January 20, 1953 denied a motion by the defendants to vacate this notice of dismissal, and also denied the defendants' motion for injunctive relief without opinion. This appeal is from the district court's denial of these two motions. An order to show cause containing a temporary stay against the bringing of any legal proceeding by the plaintiffs involving the same questions outside of this jurisdiction was issued by Judge Augustus N. Hand on January 26, and on the hearing of the order to show cause a motion for a stay pending the disposition of the defendants' appeal was granted by this court on February 3. Following the temporary stay against the plaintiffs the defendants initiated proceedings in British Guiana to secure the consent of the government there to the transfer of certain leases. On February 13 an order was issued modifying the stay previously granted against the plaintiffs by allowing them to take any steps that might be necessary to contest these proceedings.

The plaintiffs contend that their attempted voluntary dismissal without a court order was authorized by Rule 41(a) 1 of the Federal Rules of Civil Procedure, 28 U.S.C., which provides that: "* * * an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment * * *." The purpose of this rule is to facilitate voluntary dismissals, but to limit them to an early stage of the proceedings before issue is joined. 5 Moore's Fed.Practice 1007 (2d ed.). The amount of research and preparation required of defendants was stressed by the Committee Note when Rule 41(a) 1 was amended in 1948 as a reason for adding the reference to a motion for summary judgment. 5 Moore's Fed.Practice 1005 (2d ed.). The hearing before Judge Sugarman on the plaintiff's motion for a preliminary injunction required several days of argument and testimony, yielding a record of some 420 pages. Further, the merits of the controversy were squarely raised and the district court in part based its denial of the injunction on its conclution that the plaintiffs' chance of success on the merits was small. Consequently, although the voluntary dismissal was attempted before any paper labeled "answer" or "motion for summary judgment" was filed, a literal application of Rule 41(a) 1 to the present controversy would not be in accord with its essential purpose of preventing arbitrary dismissals after an advanced stage of a suit has been reached. See Butler v. Denton, 10 Cir., 150 F.2d 687; Love v. Silas Mason Co., D.C.W.D.La., 66 F.Supp. 753; cf. Kilpatrick v. Texas & Pacific Ry., 2 Cir., 166 F.2d 788; Wilson & Co. v. Fremont Cake & Meal Co., D.C. Neb., 83 F.Supp....

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    ...Data Corp., 458 F.2d 885 (7th Cir., 1972); Littman v. Bache & Co., 252 F.2d 479 (2nd Cir., 1958); Harvey Aluminum, Inc. et al. v. American Cyanamid Co., et al., 203 F.2d 105 (2nd Cir., 1963), cert den. 345 U.S. 964, 73 S.Ct. 949, 97 L.Ed. 1383; Wilson & Co. v. Fremont Cake & Meal Co., 83 F.......
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