Federal Glass Company v. Samuel Loshin

CLARK, Chief Judge

(dissenting).

As the opinion emphasizes, the decision herein is based upon a very literal reading of the statute, 28 U.S.C. § 1292(1), without looking to the consequences.1 *939Were the consequences to be considered, it would be apparent that as now ruled a plaintiff, by merely adding to his prayers for relief one for an injunction — preliminary, interlocutory, or final, it makes no difference which — may cause any denial of his pre-trial motions to be immediately appealable. This gives him practically unlimited discretion, since under the now merged law-equity procedure it is never difficult to frame a plausible demand for additional compulsive relief; moreover, plausibility can hardly be held essential, as erroneous claims must be reviewed equally with sound ones. Thus the conjunction of a statute originally enacted sixty years ago, with an obvious and a different purpose, and procedural rules newly devised nearly fifty years later, with their own clear-cut objectives, results in a substantial overturn of the historic and consistently reiterated federal principle against “piecemeal appeals.”

In words which have now become classic, we have been admonished that “it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.” Cabell v. Markham, 2 Cir., 148 F.2d 737, 739, affirmed Markham v. Cabell, 326 U.S. 404, 409, 66 S.Ct. 193, 90 L.Ed. 165. In the full spirit of this precept the Third Circuit, in five decisions representing the unanimous views of at least six of the judges comprising that distinguished tribunal, has reached what to me is a convincing interpretation of this statute. Morgenstern Chemical Co. v. Schering Corp., 3 Cir., 181 F.2d 160, 162; Albert v. School Dist. of Pittsburgh, 3 Cir., 181 F.2d 690, 691; American Airlines v. Forman, 3 Cir., 204 F.2d 230; Hook v. Hook & Acker-man, Inc., 3 Cir., 213 F.2d 122, 128; District 65, Distributive, Processing and Office Workers Union of New York and New Jersey v. McKague, 3 Cir., 216 F.2d 153. Quoting from the Supreme Court’s interpretation of the statutory purpose “to allow appeals from orders other than final judgments when they have a final and irreparable effect on the rights of the parties,” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528, it points out that in neither instance was this the situation upon the denial of the summary judgment, but rather it was as though the case had been continued for additional evidence. Thus under this interpretation we properly look to the nature of the decision, instead of relying merely on an arbitrary principle of complete appealability quite foreign to traditional federal policy.

It will not do, in my judgment, to rest upon an analysis and conclusion that denial of summary judgment must always mean more than the Third Circuit finds in the cases before it. While such a denial may so operate when the trial judge so intends, there is nothing in the stated rule to compel this result; and the actual trend — under appellate prodding in which my colleagues have been prominent participants — is surely the other way. As we can see from the trial court opinions, the nearly universal denial of all summary judgments, except upon adjudication of issues of law, is customarily reached by repeating appellate admonitions against “trial by affidavits” and relying upon the judicial gloss that the “slightest doubt” requires denial of the motion.2 In view of this, it is significantly unreal to find any elements of finality in this rather uniform treatment of the summary judgment.

In the light of this developing tradition, appellant’s most cogent argument seems to me to be that Judge Smith actually did decide so much of the merits as to provide the requisite degree of sub*940stantial adjudication for operation of the principle adduced by the Third Circuit. • Since his opinion does afford some basis for the argument I should have been disposed to acquiesce in silence, notwithstanding some misgivings on the facts and in the interest of supporting an operable rule, had our conclusion been based upon this analysis. But since the sweep of our decision is such as — in my judgment — to prove inoperable in actual practice in view of its unlimited invitation to interlocutory appeals, and since I believe it will require restatement and restriction in due course, I feel I should go on to express and define my misgivings. These áre based upon doubt of a real indication, by either appellant or Judge Smith, that this case signalizes any departure from the ordinary tentative and merely postponing nature of a denial of summary judgment. Significantly appellant made no attempt to procure or to show the need of an injunction pendente lite, beyond the purely formal prayer of its complaint. And Judge Smith actually suggests the need he finds for more evidence when he says that the material before him does not show .general public knowledge of plaintiff’s trade name and adds, “At least the exhibits now before us would not demonstrate it.” (Italics supplied.) A litigant essaying an appeal should show more than this, I believe, to take his case out of the general run of summary-judgment denials.3

There is a paradox about our result here which cannot fail to intrigue. Our past decisions critical of the summary judgment suggest that rarely, if ever, will we be prepared to reverse the action of a trial judge in calling for a full trial. Hence we are now inviting a considerable flood of appeals which, like the one before us, seem obviously doomed to failure.

The suggestion in the concurring opinion that adherence here to the traditional federal practice against interlocutory appeals would result somehow by sheer ritualism in a waste of time is not convincing. That a plaintiff who has shown no real interest in an injunction pendente lite should be stimulated thereto by a denial on the merits of his demand for final judgment does not seem likely. But if he is, then we should hear him; my position, like that of the Third Circuit, is not that we should limit the Act of Congress, merely that we should not expand it.4 Nor do I see much relief in the “short shrift” which a frivolous, albeit encouraged, appeal is expected to receive ; no matter how short the shrift, it amounts to a full-dress appeal involving useless time and expense of litigants and delay and calendar-clogging for courts. Steps extending free interlocutory appeals are unwise, as the committee report, made after an unusually full canvass and accepted by the Judicial Conference of the United States, see Report 1952, 203, stated, in condemning such legislation which “would unduly encourage fragmentary and frivolous appeals with the evils and delays incident thereto.” Nor should they be fashioned through mere interpretation.

. Even a literal reading may suggest doubts; the continued stress in the title and four subsections of ■§ 1292 upon “mterloeutory” orders or decisions — contrasting with the “final” decisions of § 1291 — points to the grant or refusal of a remedy pending the litigation, rather than a refusal to grant the final judgment asked for.

. See cases and authorities cited in the Advisory Committee’s Note to the proposed amendment to F.R.C.P. 56(e), Preliminary Draft, May 1954, pp. 50-52, and Wright, Amendments to the Federal Rules, 7 Vand.L.Rev. 521, 546(1954).

. In Morgenstern Chemical Co. v. Scher-ing Corp., supra, S Cir., 181 F.2d 160, 168, Judge Hastie acutely draws attention to the close interconnection of the motion to dismiss under E'.R.C.P. 12(b) with the motion for summary judgment which it usually becomes on submission of “matters outside the pleading,” and points out the direct authority under E'.R.C.P. 12(d) for deferring determination of the former motion until the trial.

. Possibly the door is opened too wide here and there should be some limitation, as by the certificate of the trial judge; ef. F.R.C.P. 54(b) and the legislation recommended by the Judicial Conference, Report 1953, 27. But that is a matter of legislative policy.