I dissent from the Order denying leave to file petition for mandamus. This petition discloses a matter where the rarely to be used writ of mandamus would be justified. Jurisdiction being with this Court, (United States Alkali Export Ass’n v. United States, 325 U.S. 196, 204, 65 S.Ct. 1120, 89 L.Ed. 1554), I do not believe the petition should be denied.
The issue involved is petitioner’s right to a trial by jury, for which timely demand was made, on an issue of fact. It is settled that an action for damages for an Antitrust violation is one at law. Weeks v. Bareco Oil Co., 7 Cir., 125 F.2d 84. The majority opinion would deprive the counter-claimant of his jury trial. When the issue is once tried by the court, it has become moot, and the law of the case is fixed. An appeal, or appeals, may be available to petitioner, but they might well be “a clearly inadequate remedy,” as is suggested by Judge Biggs in the first case cited below.
I would prefer to follow the path suggested, under very similar circumstances, in the case of Canister Co. v. Leahy, 3 Cir., 1951, 191 F.2d 255, certiorari denied 342 U.S. 893, 72 S.Ct. 201, 96 L.Ed. 669.
See also 28 U.S.C.A. §§ 1292, 1651; Bereslavsky v. Caffey, 1947, 2 Cir., 161 F.2d 499, certiorari denied 332 U.S. 770, 68 S.Ct. 82, 92 L.Ed. 355; Bereslavsky v. Kloeb, 6 Cir., 1947, 162 F.2d 862; In re Pan American Life Ins. Co., 5 Cir., 1951, 188 F.2d 833; Goldblatt v. Inch, 2 Cir., 1952, 203 F.2d 79, as well as the cases cited in petitioner’s brief: Bruckman v. Hollzer, 9 Cir., 1946, 152 F.2d 730, 732; Forstmann Woolen Co. v. Alexander’s Department Store, D.C., 11 F.R.D. 405, (Judge Leibell, S.D.N.Y., 1951); Leimer v. Woods, 8 Cir., 1952, 196 F.2d 828, 833-834, 836; Sablosky v. Paramount, D.C., E.D.Penn.1952, 13 F.R.D. 138, Judge Grim.
And as to the procedure suggested, see: Webster Eisenlohr, Inc., v. Kalodner, 3 Cir., 1947, 145 F.2d 316; Paramount Pictures v. Rodney, 3 Cir., 186 F.2d 111, certiorari denied 1950, 340 U.S. 953, 71 S.Ct. 572, 95 L.Ed. 687.
The majority seem troubled by the alleged deficiencies in the record. We have before us the pleadings. They are enough. Schaefer v. Gunzberg, 9 Cir., 246 F.2d 11.
Next the majority finds fault in the presentation of this motion on the morning that the trial was scheduled to begin in the District Court. The District Court’s Order severing the counterclaim was made on April 16, 1957. Until that time petitioner had no way of knowing that he would not be afforded full protection of his constitutional rights. Thereafter, it prepared the instant petition with diligence and argued it before this Court exactly one week to the day after the trial court had made its order. Under these circumstances I do not see how the moving party can be criticized for delay.
Of course the District Court has power under Rule 42(b) of the Federal Rules of Civil Procedure to order the separate trial of any claim, or counterclaim, or any separate issue. But it cannot do so in such a manner as to deprive a litigant of a constitutional right, which to all practical purposes is here accomplished.
No constitutional rights could be prejudiced were there here to be a simultaneous trial of the legal and equitable issues. This is that case where this should be done, and we should aid its accomplishment. To talk of our zeal in preserving the right to jury trial generally does nothing to aid its preservation for one about to lose that constitutional right.