Mohasco Industries, Inc. v. Lydick, 71-2825.
| Citation | 459 F.2d 959 |
| Decision Date | 01 May 1972 |
| Docket Number | No. 71-2825.,71-2825. |
| Parties | MOHASCO INDUSTRIES, INC., a New York corporation, Petitioner, v. The Honorable Lawrence T. LYDICK, United States District Judge, Central District of California, Respondent, and Murray B. Marsh Company, Inc., a Washington corporation, Respondent and Real Party in Interest. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Samuel O. Pruitt, Jr. (argued), Gary D. Stabile, Keith K. Hilbig, John J. Hanson, Charles C. Ivie, of Gibson, Dunn & Crutcher, Los Angeles, Cal., for petitioner.
Lawrence T. Lydick, pro se.
Jesse R. O'Malley (argued), James L. Seal, of Musick, Peeler & Garrett, Los Angeles, Cal., for real party in interest.
Before ELY, TRASK, and GOODWIN, Circuit Judges.
This is an original proceeding in the nature of mandamus, calendared for argument by a panel of this court after it had disallowed an attempted appeal from an order vacating an attachment.
Mohasco, a New York corporation, brought a diversity action in the United States District Court for the Central District of California seeking money alleged to be due for merchandise sold by Mohasco to Murray B. Marsh Co., a Washington corporation doing business in California. Mohasco attached Marsh property under Section 537 of the California Code of Civil Procedure, pursuant to Fed.R.Civ.P. 64, which conforms federal practice to local attachment statutes in such cases.
The district court vacated the attachment in the belief that a recent decision of the California Supreme Court had declared unconstitutional the state attachment statute. See Randone v. Appellate Department, 5 Cal.3d 536, 96 Cal.Rptr. 709, 488 P.2d 13 (1971). The Randone decision struck down Subdivision (1) of Section 537, but was silent on Subdivision (2).
Entertaining a conviction that Subdivision (2), under which the attachment could have been authorized, was constitutional, Mohasco attempted to appeal to this court. The appeal was barred by 28 U.S.C. § 1291 because the order was not a final order. But the motion panel elected to treat the abortive appeal as an application for a writ of mandamus. Mandamus is available in extraordinary cases. La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); Pacific Car and Foundry Company v. Pence, 403 F.2d 949 (9th Cir. 1968). But in this circuit it is used sparingly. Belfer v. Pence, 435 F.2d 121 (1970).
This court, now having heard oral argument, and having examined the entire record, is satisfied that the cause should be remanded to the district court for further proceedings at the discretion of the district judge.
The motion panel correctly found that the order appealed from was not a final order. The panel did not have before it the district court file, but we now know that the district judge was never asked to certify a question under 28 U.S.C. § 1292(b) for an interlocutory appeal. We do not know what view the district judge might have taken had such an application been made. Before a writ in the nature of mandamus is...
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Hartland v. Alaska Airlines, s. 72-2531
...a petition for mandamus or to request the district judge to certify the question under 28 U.S.C. § 1292(b). In Mohasco Industries, Inc. v. Lydick, 459 F.2d 959 (9th Cir. 1972), we remanded an appeal from an order vacating attachment of property for certification under 28 U.S.C. § 1292(b) ra......
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Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California
...we have required section 1292(b) certification clearly have been based on prudential considerations. See, e.g., Mohasco Indus., Inc. v. Lydick, 459 F.2d 959, 960 (9th Cir.1972). Finding no bar to our review of the petition, we turn to its II. Should Mandamus Issue? Mandamus is an extraordin......
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Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California
...we have required section 1292(b) certification clearly have been based on prudential considerations. See, e.g., Mohasco Indus., Inc. v. Lydick, 459 F.2d 959, 960 (9th Cir.1972). Finding no bar to our review of the petition, we turn to its II. Should Mandamus Issue? Mandamus is an extraordin......
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Orange County v. Hongkong and Shanghai Banking Corp. Ltd.
...the district's order expunging the lis pendens is not a final decision for purposes of 28 U.S.C. Sec. 1291. Accord Mohasco Indus. v. Lydick, 459 F.2d 959, 960 (9th Cir.1972) (order vacating attachment not a final order). The Partnership argues, however, that we have jurisdiction over this a......