Rohrer, Hibler & Replogle, Inc. v. Perkins

Decision Date01 February 1984
Docket NumberNo. 83-2568,83-2568
Citation728 F.2d 860
PartiesROHRER, HIBLER & REPLOGLE, INC., a Delaware corporation, Plaintiff-Appellant, v. Dr. Robert D. PERKINS, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Robert J. Lepri, McDermott, Will & Emery, Chicago, Ill., for plaintiff-appellant.

Stephen C. Schulte, Winston & Strawn, Chicago, Ill., J.D. Humphries, Varner, Stephens, Wingfield, McIntyre Humphries, Atlanta, Ga., for defendant-appellee.

Before PELL, WOOD and CUDAHY, Circuit Judges.

PER CURIAM.

This case arises out of an employment contract between Dr. Perkins and his former employer, Rohrer, Hibler & Replogle, Inc. ("RHR"). Dr. Perkins filed suit in a federal court in Georgia, seeking a declaratory judgment that the restrictive covenants in his contract are void and unenforceable. RHR then filed the instant suit in the Circuit Court of Cook County, Illinois, requesting injunctive relief against Dr. Perkins. RHR brought suit in Cook County pursuant to a forum selection clause in the contract, which provides:

This agreement is to be enforced and interpreted in accordance with the laws of the State of Illinois. Employee agrees that the Circuit Court of Cook County, Illinois shall have jurisdiction to enforce any of the terms of this Agreement and/or to resolve any dispute which arises under this agreement and employee hereby consents to and submits to the jurisdiction of the Circuit Court of Cook County over his person for the purposes of enforcing any terms of this agreement or resolving any disputes which arise under this agreement.

After the Circuit Court issued a temporary injunction, Dr. Perkins removed the case to federal court. RHR filed a motion to remand the case to state court which was denied by the judge below, reconsidered, and denied again. RHR appealed to this court.

The first issue we must consider is whether we have jurisdiction to decide an appeal of an order denying a motion to remand to a state court. RHR contends that jurisdiction over this appeal is conferred by 28 U.S.C. Secs. 1291, 1292(a)(1) and 1651.

This court's jurisdiction under Sec. 1291 normally "depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). An order denying a motion to remand a case to state court cannot, by any stretch of the imagination, be considered "final" within the meaning of Sec. 1291. Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 578, 74 S.Ct. 290, 293, 98 L.Ed. 317 (1954) ("Obviously, such an order is not final and appealable if standing alone."); Ex parte Hoard, 105 U.S. 578, 15 Otto 578, 26 L.Ed. 1176 (1881); Polyplastics, Inc. v. Transconex, Inc., 713 F.2d 875, 877 n 2 (1st Cir.1983); Melancon v. Texaco, Inc., 659 F.2d 551, 552 (5th Cir.1981); Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112, 114 (4th Cir.1979), cert. denied, 445 U.S. 911, 100 S.Ct. 1090, 63 L.Ed.2d 327 (1980); Aberle Hosiery Co. v. American Arbitration Ass'n, 461 F.2d 1005, 1006 (3rd Cir.1972); Wilkins v. American Export-Isbrandtsen Lines, Inc., 401 F.2d 151 (2d Cir.1968); 1A J. Moore, B. Ringle & J. Wicker, Moore's Federal Practice p 0.169[2.-3], at 706 (1983); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3914, at 548 (1976).

An order may, however, be appealable under Sec. 1291 if it falls within "that small class which finally determine 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." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). To come within the collateral order doctrine enunciated in Cohen, "the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable from a final judgment." Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458. All three conditions must be satisfied for the order to be appealable. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

We need not discuss the first two conditions here because RHR has failed to satisfy the third. We begin with the proposition that the collateral order doctrine, like all exceptions to the finality requirement of Sec. 1291, should be construed narrowly. Matterhorn, Inc. v. NCR Corp., 727 F.2d 629 633 (7th Cir. 1984); Medtronic, Inc. v. Intermedics, Inc., 725 F.2d 440, 445 (7th Cir. 1984) (Enelow-Ettelson doctrine); Shaffer v. Globe Protection, Inc., 721 F.2d 1121, 1124 (7th Cir.1983) (Sec. 1292(a)(1)); In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1118 (7th Cir.), cert. denied, 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979) (collateral order doctrine).

The third Coopers & Lybrand condition requires that the appellant demonstrate that "denial of immediate review would render impossible any review whatsoever." Firestone, 449 U.S. at 376, 101 S.Ct. at 675, quoting United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971). "Thus, for an order to be appealable under the Cohen doctrine its consequences for the appellant must be irreversible by subsequent proceedings." In re UNR Industries, Inc., 725 F.2d 1111, 1118 (7th Cir. 1984). RHR has made no such showing in the case before us. The district court order denying the motion to remand will be reviewable on appeal from a final judgment. Ex parte Hoard, 105 U.S. at 579, 15 Otto at 579; Melancon v. Texaco, Inc., 659 F.2d at 553; Albright v. R.J. Reynolds Tobacco Co., 531 F.2d 132, 134 (3d Cir.), cert. denied, 426 U.S. 907, 96 S.Ct. 2229, 48 L.Ed.2d 832 (1976); 1A Moore's Federal Practice p 0.169[2.-3], at 706 (1983). See also Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190, 211-12 (3d Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 349, 78 L.Ed.2d 315 (1983) (Rosenn, J., concurring).

Although RHR will have to incur the cost of further litigation below before finding out whether the district court properly denied the motion to remand, this does not "diffe[r] in any significant way from the harm resulting from other interlocutory orders that may be erroneous, such as orders requiring discovery over a work-product objection or orders denying motions for recusal of the trial judge." Firestone, 449 U.S. at 378, 101 S.Ct. at 675, quoting Armstrong v. McAlpin, 625 F.2d 433, 438 (2d Cir.1980), vacated, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). The burden of additional litigation expenses does not make allegedly erroneous interlocutory rulings appealable. Freeman v. Kohl & Vick Machine Works, Inc., 673 F.2d 196, 200 (7th Cir.1982); Central States, Southeast and Southwest Areas Health and Welfare Fund v. Old Security Life Ins. Co., 600 F.2d 671, 677 (7th Cir.1979).

As alternative bases for our jurisdiction, RHR contends that the order is appealable under either Sec. 1292(a)(1) or Sec. 1651. By the latter statute, the All Writs Act, we assume that RHR is referring to mandamus. A writ of mandamus is an extraordinary remedy reserved for extreme situations. J.H. Cohn & Co. v. American Appraisal Associates, Inc., 628 F.2d 994, 997 (7th Cir.1980); Oswald v. McGarr, 620 F.2d 1190, 1195 (7th Cir.1980). It does not serve as a substitute for appeal, J.H. Cohn & Co., 628 F.2d at 997, and "will lie only to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it is its duty to do so. Mere error is not sufficient to invoke the mandamus process; the petition must assert an action of the lower court by which it acted beyond its power." Oswald v. McGarr, 620 F.2d at 1195 (citations omitted). The party requesting mandamus relief has the heavy burden of showing that it has a clear and indisputable right to issuance of the writ. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662, 98 S.Ct. 2552, 2557, 57 L.Ed.2d 504 (1978). As RHR has made no argument concerning the appropriateness of mandamus beyond merely citing the statute, we hold that it has not met this burden.

Section 1292(a)(1) gives courts of appeals jurisdiction of appeals from interlocutory orders "granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court." Because the order appealed from here does not involve an injunction, we have jurisdiction under Sec. 1292(a)(1) only if the order comes within the contours of the Enelow-Ettelson doctrine (named for the two cases that first announced it, Enelow v. New York Life Ins. Co., 293 U.S. 379, 55 S.Ct. 310, 79 L.Ed. 440 (1935) and Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 63 S.Ct. 163, 87 L.Ed. 176 (1942)). This rule classifies as an injunction, within the meaning of Sec. 1292(a)(1), a stay issued in a suit at law for the purpose of allowing consideration of an equitable defense. Matterhorn, Inc. v. NCR Corp., 727 F.2d at 631; Medtronic, Inc. v. Intermedics, Inc., 725 F.2d at 442; Hayes v. Allstate Ins. Co., 722 F.2d 1332, 1337 (7th Cir.1983) (Posner, J., dissenting). The Enelow-Ettelson doctrine has been much criticized, see id., at 1337-38 (Posner, J., dissenting); Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d at 208-09 (Rosenn, J., concurring), and we are reluctant to extend it to a factual situation not approved previously by the Supreme Court, because of the important policy against piecemeal appeals. Matterhorn, Inc. v. NCR Corp., 727 F.2d at 633; Medtronic, Inc. v....

To continue reading

Request your trial
17 cases
  • Olson v. Paine, Webber, Jackson & Curtis, Inc.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 21, 1986
    ...518-19 (7th Cir.1984); Hayes v. Allstate Ins. Co., supra, 722 F.2d at 1336-41 (dissenting opinion); Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 863 (7th Cir.1984) (per curiam); Texaco, Inc. v. Cottage Hill Operating Co., 709 F.2d 452 (7th Commenting on the problem of the suit ......
  • Hodes v. S.N.C. Achille Lauro ed Altri-Gestione
    • United States
    • U.S. Court of Appeals — Third Circuit
    • September 22, 1988
    ...806 F.2d 848, 850-51 (8th Cir.1986). Contra Chasser v. Achille Lauro Lines, 844 F.2d 50 (2d Cir.1988); 1 Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862-64 (7th Cir.), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984). Cf. Nascone v. Spudnuts, Inc., 735 F.2d 763......
  • U.S. v. Horak
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 5, 1987
    ...court. We have described the writ of mandamus as "an extraordinary remedy reserved for extreme situations." Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 863 (7th Cir.), cert. denied, 469 U.S. 890, 105 S.Ct. 265, 83 L.Ed.2d 201 (1984); J.H. Cohn & Co. v. American Appraisal Assoc......
  • Lauro Lines v. Chasser, 88-23
    • United States
    • U.S. Supreme Court
    • May 22, 1989
    ...488 U.S. 887, 109 S.Ct. 217, 102 L.Ed.2d 208 (1988). Compare, e.g., 844 F.2d 50 (1988) (case below), Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862-863 (CA7) (holding prejudgment denial of motion to dismiss on basis of forum-selection clause not to be immediately appealable u......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT