Hirsch v. Bruchhausen
Decision Date | 29 November 1960 |
Docket Number | No. 26597.,26597. |
Citation | 284 F.2d 783 |
Parties | Myrtle G. HIRSCH, Lenore Benedek, Janet Benedek, Gladys Cohen, and Howard Hirsch, doing business as Beland Realty Company, Petitioners, v. Hon. Walter BRUCHHAUSEN, United States District Judge for the Eastern District of New York, Respondent. |
Court | U.S. Court of Appeals — Second Circuit |
Leonard W. Wagman, of Golenbock & Barell, New York City, for petitioners.
Martin Rosen, New York City, for William J. Adams, d/b/a Beacon Hill Company, Coral, Inc., and Louis Rait, Inc., in opposition.
Before CLARK, MAGRUDER, and FRIENDLY, Circuit Judges.
The petitioners herein seek a writ of mandamus to compel Judge Bruchhausen to vacate an order substituting them as the parties defendant in an action pending before him in the Eastern District of New York. The petition was filed a few days after we had dismissed a direct appeal from the order for lack of a final judgment. Involved also is an unappealable1 order of remand of the action to the state court from which it had originally been removed, since the substitution of parties destroyed diversity of citizenship. Defendants, relying on a claim that the district court has not secured jurisdiction over them, vigorously press their contention for a review of this issue by mandamus as the only means available to them, Judge Bruchhausen having denied their application for an interlocutory appeal under 28 U.S. C. § 1292(b). But since defendants, by their own admission and claim, are the real parties in interest to defend the pending action, we find their objections purely delaying and technical, not rising to the level required to justify the issuance of the extraordinary writ of mandamus.2 The case is now in that place and that posture which are wholly appropriate and have been indicated as such from the outset; further preliminary sparring can at the utmost procure only a direction that the amended complaint be served upon the defendants, rather than upon their counsel. As we point out below, even in the doubtful event that such a direction might prove desirable, we shall not call upon the extraordinary powers of this court to permit us to indulge in so futile and useless a gesture.
The original action, Adams v. Beland Realty Corp., was brought in the state court in 1954 by certain tenants of stores in an eight-story business block in Queens, New York City, against Beland Realty Corp., a New Jersey corporation, as owner. Judge Bruchhausen in his opinion below states the uncontested facts succinctly as follows:
Adams v. Beland Realty Corp., D.C.E.D.N.Y., 187 F. Supp. 680, 681.
The present proceeding was initiated by a motion thereafter made on behalf of the then plaintiffs pursuant to F.R.C.P. 15 and 4(h) to amend the title by substituting the present petitioners, doing business as Beland Realty Company, as party defendants, in place of Beland Realty Corp. The defendant contended that a granting of the motion would constitute a substitution of a new party and thereby deny the defendant partnership the benefit of the statute of limitations. But Judge Bruchhausen pointed out that here D.C.E.D.N.Y., 187 F.Supp. 680, 681, 682. And he granted the motion, ordering a complete substitution of parties defendant; additionally he ordered the remand to the state court, since the parties were now all citizens of New York. When the appeal from the order of substitution came before us on October 19, 1960, we granted the plaintiffs' motion to dismiss, since obviously the defendant corporation was not injured by its elimination from the lawsuit and no final action had been taken against the substituted defendants, who now had full opportunity to defend. This petition, dated October 27, 1960, followed.
F.R. 81(c) provides as to "Removed Actions": See Freeman v. Bee Machine Co., 319 U.S. 448, 63 S.Ct. 1146, 87 L.Ed. 1509, upholding amendment to state a new claim after removal. Thus Judge Bruchhausen had clear authority to order the amendment substituting parties, see F.R. 21, 25(a) (c); and it was his manifest duty to do so and to make sure that the real issue was litigated between the parties actually involved. Moreover, the defendants knew, even more than the plaintiffs, that the issue was one for the state court where (so we are told) there is already an action pending against them involving these issues. There is no permanent prejudice to them to find themselves just where they should have been had they been more frank earlier as to the ownership of the realty. Nor do we see how their charge of negligent and careless prosecution of the case by their opponents gets them far, for, whatever its past vicissitudes, the case has remained pending and obviously must now be heard in the proper tribunal therefor.
The only possible contention they have is that actually they are strangers, being newly inducted into the litigation, and hence are entitled to service of process anew.3 Perhaps the trial judge might have been well advised to have ordered this simple and here essentially useless formality and thus have removed petitioners' last talking point. And were mandamus to issue, it would have to be limited to that one step, since every other step taken is so definitely required in equity and justice. But we do not think the writ is available for so profitless a venture. So concluding, we shall not pause to consider whether petitioners may still be entitled to raise this objection or whether they may not be foreclosed by their continued defense in the name of the corporation as owner and by their present appeal or whether in any event under the circumstances of complete knowledge which they possessed service upon their counsel is not adequate under F.R. 5. See Freeman v. Bee Machine Co., supra, 319 U.S. 448, 455, 63 S.Ct. 1146, 87 L.Ed. 1509; Adam v. Saenger, 303 U.S. 59, 67-68, 58 S.Ct. 454, 82 L.Ed. 649. The obvious lack of any real prejudice to them makes issuance of the writ an act of supererogation.
Petitioners also seek various forms of additional relief which either are rendered inappropriate by our conclusion or are not properly available to them. Certainly we have no right or desire to control the trial judge's exercise of discretion in denying leave for an interlocutory appeal. All defenses on the merits now properly go before the state court for definitive adjudication; our function has been merely to pass on the procedural aspects of the proceedings as brought before us. We see no reason either to grant or to continue a stay preventing the remand to the state court.
Accordingly the petition for a writ of mandamus and for other forms of relief is denied in toto.
In my view the correct path here is the one Judge Clark has so clearly discerned but has then declined to follow. That is to grant the petition for mandamus to the limited extent of directing modification of the...
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