Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corporation

• Decision Date: 25 April 1974
• Docket Number: Dockets 74-1104,10,74-1095.,Motion No. 4
• Citation: 496 F.2d 800
• Parties: SILVER CHRYSLER PLYMOUTH, INC., Plaintiff-Appellee, v. CHRYSLER MOTORS CORPORATION and Chrysler Realty Corporation, Defendants-Appellants. CHRYSLER MOTORS CORPORATION and Chrysler Realty Corporation, Petitioners, v. Honorable Jack B. WEINSTEIN, Judge of the United States District Court for the Eastern District of New York, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

496 F.2d 800 (1974)

SILVER CHRYSLER PLYMOUTH, INC., Plaintiff-Appellee, v. CHRYSLER MOTORS CORPORATION and Chrysler Realty Corporation, Defendants-Appellants.

CHRYSLER MOTORS CORPORATION and Chrysler Realty Corporation, Petitioners, v. Honorable Jack B. WEINSTEIN, Judge of the United States District Court for the Eastern District of New York, Respondent.

Motion Nos. 4, 10, Dockets 74-1104, 74-1095.

United States Court of Appeals, Second Circuit.

Argued January 15, 1974.

Submitted April 16, 1974.

Decided April 25, 1974.

Kelley, Drye, Warren, Clark, Carr & Ellis, New York City, in opposition to the motion to dismiss the appeal and in support of the petition for a writ.

Hammond & Schreiber, New York City, for the motion to dismiss the appeal and in opposition to the petition for a writ.

Before KAUFMAN, Chief Judge, and MOORE, FRIENDLY, HAYS, ANDERSON, FEINBERG, MANSFIELD, MULLIGAN, OAKES and TIMBERS, Circuit Judges.

Submitted to the Court En Banc April 16, 1974.

MOORE, Circuit Judge:

This is a motion to dismiss an appeal from an order denying a motion to disqualify counsel. It originally came on to be heard before a panel consisting of the writer and Judges Friendly and Anderson. A member of the court then in regular active service having requested that the motion be considered en banc and all of the judges having voted in favor of such hearing, it has been so considered by all active judges and the members of the panel on the original briefs and record, without further oral argument.

The merits of the present controversy which relate solely to the appealability of Judge Weinstein's order denying Chrysler's motion to disqualify plaintiff's counsel in an action entitled Silver Chrysler Plymouth, Inc. against Chrysler Motors Corporation and Chrysler Realty Corporation, 73 Civ. 853, are not before us D.C., 370 F.Supp. 581.

A young law clerk, Dale A. Schreiber, employed after graduation from law school by Kelley Drye Warren Clark Carr & Ellis (Kelley Drye) apparently worked for almost three years in the litigation department of that firm. One of the principal clients of the firm is the Chrysler Corporation. Schreiber was engaged in certain litigation matters for Chrysler, petitioner-appellant in this case. Schreiber left Kelley Drye to join Alexander Hammond and together they formed the firm of Hammond & Schreiber. Hammond (and the firm of Hammond & Schreiber) is alleged to specialize in prosecuting automobile dealers' claims against manufacturers, including Chrysler. The suit creating this controversy is a dealer suit against Chrysler in which Schreiber is representing the dealer. Chrysler's attorneys seek to disqualify Schreiber from acting as the attorney and to dismiss the complaint because of such representation. Judge Weinstein denied Chrysler's motion to disqualify.

The problem facing Chrysler's attorneys is: how can an appeal, if there be one, be taken at this stage of the litigation?

For years this appealability problem has plagued both counsel and the courts. The procedures followed by Chrysler, as petitioner-appellant, on this phase of the case, exemplify the current situation and uncertainty.

On August 27, 1973, Chrysler moved to disqualify and to enjoin plaintiff-dealer's attorneys, Hammond & Schreiber, from further participation in the case. By order, November 26, 1973, Judge Weinstein denied the motion.

On December 11, 1973, Chrysler sought to have Judge Weinstein amend his order to include a Section 1292(b) statement that an immediate appeal might materially advance the termination of the litigation.¹ This, by order of December 17, 1973, the Judge refused to do. Chrysler then filed its notice of direct appeal dated December 21, 1973.

Chrysler then turned to this Court for permission to appeal pursuant to 28 U. S.C. § 1292(b) and Rule 5, Fed.R.A.P. This motion was denied on January 10, 1974. Chrysler previously (January 3, 1974) had sought to stay District Court proceedings until the appeal should be determined. On January 15, 1974, the motion was granted.

On January 9, 1974, plaintiff-respondent-appellee moved to dismiss Chrysler's appeal and challenged the power of this Court to grant relief by way of mandamus. Apparently still uncertain as to how to reach this Court, Chrysler on January 23, 1974, filed its petition for an Extraordinary Writ pursuant to 28 U.S.C. § 1651 and Rule 21, Fed.R.A.P., directing Judge Weinstein to vacate his original order, to disqualify the law firm of Hammond & Schreiber, and to dismiss the complaint.

Thus, procedural uncertainties subsequent to denial of the motion have produced (1) a notice of appeal; (2) a motion in the District Court to amend the order to include a § 1292(b) statement; (3) a motion to this Court for permission to appeal; and (4) a petition for an Extraordinary Writ — each except for the notice of appeal included the same repetitious statements of fact and law and each required time-consuming consideration by the courts.

By order of January 29, 1974, this Court joined the petition for a Writ and the motion to dismiss the appeal. The upshot of all these maneuverings is to bring before us the simple question and the necessity of resolving the difficult answer: is the order denying disqualification appealable?

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L. Ed. 1528 (1949), may be taken as the cornerstone. There in a case involving the appealability of the denial of a motion in a stockholders' derivative action to require security for expenses, Mr. Justice Jackson with his background of long trial experience wrote:

After final judgment it will be too late effectively to review the present order and the rights conferred by the statute, if it is applicable, will have been lost, probably irreparably. . . .

* * * * * *

This decision appears to fall in 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. The Court has long given this provision of the statute this practical rather than a technical construction. . . .

337 U.S. at 546-547.

Appeal from less than a final judgment was permitted.

Resolution of the problems attendant to any litigation usually calls for a "practical" rather than a "technical" approach if the desideratum of an equitable result is to be attained. However, we are not here writing on a clean slate.

This Circuit in 1956 in Harmar Drive-In Theatre v. Warner Bros. Pictures, 239 F.2d 555 (2d Cir. 1956), squarely faced the appealability question saying: "Before reaching the merits it is necessary to consider whether the order is appealable." There, as here, supplemental briefs addressed to this question had been requested by the court and submitted. The court referred to four earlier (1954, 1955, 1956) cases in this Circuit involving motions to disqualify counsel. In Consolidated Theatres v. Warner Bros. Circuit Management Corp., 216 F.2d 920 (2d Cir. 1954), Judges Chase, Frank and Hincks affirmed on the merits an order granting disqualification. Appealability was not discussed. A year later Laskey Bros. of W. Va., Inc. v. Warner Bros. Pictures and Austin Theatre, Inc. v. Warner Bros. Pictures, 224 F.2d 824, cert. denied, 350 U.S. 932, 76 S.Ct. 300, 100 L.Ed. 814 were decided. (Then Chief) Judge Clark wrote the opinion affirming disqualification in Laskey Bros. as well as the denial of disqualification in Austin. Judge Chase concurred; Judge Ryan of the District Court dissented. Reference was made to the Fisher Studio case, argued but then undecided. Fisher Studio came before this Court in early 1956.² (Then Chief) Judge Clark wrote the opinion affirming with minor modifications an order of disqualification, noting as to jurisdiction that "since these orders of disqualification are collateral to the main case * * * the final order of disqualification is also appropriately treated as a separate and collateral proceeding." (p. 204). Late in 1956 Harmar was decided with the benefit of Cohen and the cases above mentioned. After considering the question Judge Swan wrote: "A majority of the court are of opinion that with respect to appealability no distinction exists between orders granting disqualification and those refusing to do so." (p. 556). Thus, from Cohen in 1949 and until 1959, the law in this Circuit in favor of appealability of disqualification orders, granted or denied, rested on the solid foundation of Cohen, and appeared to have been definitely established.

However, in February 1959 an order denying disqualification came before a panel of (then Chief) Judge Clark, Circuit Judge Moore and District Court Judge Gibson (D.C.Vt.) in the case of Fleischer v. Phillips, 264 F.2d 515. (Then Chief) Judge Clark chose not to follow Cohen or his colleagues in Harmar or his own opinion in Laskey Bros. and rejected appealability. District Judge Gibson joined him. Judge Moore in his dissent after referring to Cohen and Harmar pointed out that "The disqualification of the attorneys selected by the defendants is wholly collateral to the issues in that case" and that "consideration should also be given to the practical situation with which some future trial judge will be confronted in ruling on questions of admissible evidence." (p. 519).

Four months later (June 1959) another order denying disqualification was appealed. Marco v. Dulles, 268 F.2d 192 (2d Cir. 1959). The appellant here relied on Judge Swan's opinion in Harmar. Judge Swan apparently felt that Fleischer superseded his Harmar opinion and that the majority (Judge Hincks concurring) were "constrained to dismiss the appeal." Judge Moore, still preserving the stare decisis approach, dissented, again referring to the law as expounded in Cohen and Harmar and issued a Cassandra-type warning that "the dismissal of...