Ransburg Electro-Coating Corp. v. Lansdale Finishers, Inc., 72-1975.
| Decision Date | 04 September 1973 |
| Docket Number | No. 72-1975.,72-1975. |
| Citation | 484 F.2d 1037 |
| Parties | RANSBURG ELECTRO-COATING CORP. v. LANSDALE FINISHERS, INC. and Automatic Finishing Systems, Inc. Appeal of AUTOMATIC FINISHING SYSTEMS, INC. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph Gray Jackson, Edward Lovett Jackson, Eugene Chovanes, Jackson, Jackson & Chovanes, Philadelphia, Pa., for appellant.
John T. Synnestvedt, J. Donald McCarthy, Synnestvedt & Lechner, Philadelphia, Pa., and Clyde F. Willian, Robert L. Harmon, Hume, Clement, Hume & Lee, Brinks, Willian, Olds & Cook, Ltd., Chicago, Ill., for appellees.
Before SEITZ, Chief Judge, and ALDISERT, Circuit Judge.
Before SEITZ, Chief Judge, and ALDISERT and HUNTER, Circuit Judges.
Submitted Under Third Circuit Rule 12(6) July 25, 1973.
Resubmitted Under Third Circuit Rule 12(6) September 4, 1973.
Submitted Under Third Circuit Rule 12(6) July 25, 1973
Before SEITZ, Chief Judge, and ALDISERT, Circuit Judge.
Resubmitted Under Third Circuit Rule 12(6) Sept. 4, 1973
Before SEITZ, Chief Judge, and ALDISERT and HUNTER, Circuit Judges.
The question presented is whether on a motion for summary judgment the district court, 345 F.Supp. 299, properly decided the question of non-party control of a previous patent infringement litigation. The court found that there had been non-party control of the litigation and invoked res judicata to decide a subsequent action pertaining to the same patent. We reverse and hold that the question of control of the previous litigation was for the court as a fact-finder.
The district court had before it an action by Ransburg against Automatic Finishing Systems (AFS) and Lansdale, a customer of AFS. It determined that AFS had controlled the defense of a previous infringement action brought in Georgia by Ransburg against Standard Container, also a customer of AFS. The court invoked the doctrine of res judicata against AFS and entered summary judgment in favor of Ransburg. It permitted the action to proceed to trial against the co-defendant Lansdale only.
We have jurisdiction in this appeal even though the summary judgment was not a final judgment as to all parties. F.R.Civ.Proc. 54(b) does not affect the appealability of orders "granting . . . injunctions," 28 U.S.C. § 1292(a)(1). Rains v. Cascade Indus., Inc., 402 F.2d 241, 243 (3d Cir.1968).
It is well established that an appellate court will "look at the record on summary judgment in the light most favorable to . . . the party opposing the motion. . . ." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491, 7 L.Ed. 2d 458 (1962). "The sufficiency of a non-party's control and participation in litigation is, . . ., a question of fact, to be proved affirmatively by the party invoking the conclusive force of the judgment." 1B Moore, Federal Practice ¶ 0.4116 at 1566-67, Standard Acc. Ins. Co. v. Doiron, 170 F.2d 206, 209 (1st Cir. 1948). We are obliged, therefore, to ascertain whether the issue of AFS control over the previous litigation was sufficiently controverted as to require its resolution by the fact-finder.
The question of control is pertinent to controlling legal principles, exemplified by the Restatement of Judgments, § 84:
A person who is not a party but who controls an action, individually or in co-operation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary or financial interest in the judgment or in the determination of a question of fact or of a question of law with reference to the same subject matter or transaction; if the other party has notice of his participation, the other party is equally bound.
Although the evidence adduced in the summary judgment proceedings seems heavily weighted in favor of Ransburg,1 preponderance of the evidence is not the test in a summary judgment proceeding; rather the test is whether a genuine issue of material fact remains after examination of pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits. AFS argues that certain aspects of the conduct of Standard's litigation counsel in Georgia demonstrated an independence of trial strategy beyond the control of AFS.2
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