Firestone Tire & Rubber Co. v. General Tire & Rubber Co. Court Opinion

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, Cite as 431 F.
I

iW  nRESTONE TIRE & RUBBER CO., 
Petitioner-Appellant, 

v.
The GENERAL TIRE & RUBBER CO., 

Respondent-Appellee.
The FIRESTONE TIRE & RUBBER CO., 

Petitioner-Appellant,
v.

Honorable Frank J. BATTISTI, 
Respondent-Appellee.

Nos. 20594, 20631.

United States Court of Appeals,
Sixth Circuit.
Aug. 6, 1970.

Petitioner sought review of order of 
the United States District Court for the 
Northern District of Ohio, Frank J. Bat- 
tisti, Chief Judge, that had adjudicated 
petitioner guilty of perpetrating fraud 
on United States District Court for the 
District of Maryland. Motion to dismiss 
was filed. In another case the petitioner 
sought writ of mandamus directing dis­
trict judge for United States District 
Court for the Northern District of Ohio 
either to reverse his ruling on issue of 
patent misuse and to dismiss case, or to 
certify that petitioner should be permit­
ted to prosecute interlocutory appeal on 
such issue. After consolidating cases, 
the Court of Appeals held that order ad­
judicating petitioner guilty of perpetrat­
ing fraud was not appealable where is­
sues involved had been consolidated into 
other case and where there was no indi­
cation that serious injustice would result 
from delaying review of such order until 
final adjudication of merits of controver­
sy.

Motion granted; petition denied; 
and requests for stay denied.
L Courts 0=405(12.23)

Order which adjudicated party 
guilty of perpetrating fraud upon feder­
al district court was not final order and 
was not appealable where issues involved 
had been consolidated into another case 
and where there was no indication that 
serious injustice would result from delay­
ing review of such order until final ad-

2d 1199 (1970)
judication of merits of controversy. 28 
U.S’.C.A. § 1291.

2. Courts 0=405(12.2)
In determining for purposes of ap­

peal, whether order is final, competing 
considerations of inconvenience and 
costs of piecemeal review and danger of 
denying justice by delay must be bal­
anced.

3. Mandamus 0=4(3)
Writ of mandamus directing federal 

district judge to reverse his ruling on is­
sue of patent misuse and to dismiss case 
would not be issued where petitioner, in 
seeking such relief, was attempting to 
substitute writ of mandamus for appeal.

4. Mandamus 0=57(1)
Writ of mandamus directing federal 

district judge to certify interlocutory 
appeal from ruling on issue of patent 
misuse would not be issued where 
judge’s refusal to certify interlocutory 
appeal did not constitute clear abuse of 
discretion or usurpation of judicial pow­
er. 28 U.S.C.A. §§ 1292(b), 1651(a).

Victor DeMarco, Jones, Day, Cock- 
ley & Reavis, Cleveland, Ohio, for appel­
lant.

Charles J. Merriam, Merriam, Marsh­
all, Shapiro & Klose, Chicago, 111., for 
appellee.

Before EDWARDS, McCREE and 
BROOKS, Circuit Judges.

ORDER
In these cases, which we have consoli­

dated because of their common factual 
background, we consider a motion to dis­
miss (No. 20594) and a petition for a 
writ of mandamus (No. 20631).

[1, 2] In case number 20594, appel­
lant seeks review of an order of the Dis­
trict Judge adjudicating it guiltyjof per­
petrating a fraud upon the federal Dis­
trict Court in Baltimore, Maryland. Ap­
pellee General Tire has filed a motion to 
dismiss on the ground that the District 
Judge’s order is not a final order within

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1200 431 FEDERAL REPORTER, 2d SERIES

the meaning of 28 U.S.C. § 1291 and 
that this court therefore lacks jurisdic­
tion to review the order at this time. 
We agree. In determining whether an 
order is “TfflS!”7>'We must balance the" 
" c o n f i n e  considerations [of] 'the in­
continence and costs of piecemeal re-..i... -~rf~-----  t - t- tw *m - . .VRw on the one ha . m m  , -y delay on the other’ 

3ie v. United States Steel Corp., 
379 U.S. 148, 152-153, 85 S.Ct. 308, 310, 
13 L.Ed.2d 199 (1964), quoting from 
Dickinson v. Petroleum Conversion 
Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 94 
L.Ed. 299 (1950). In the present case, 
we can perceive no serious injustice that 

result from delaying rbiaevy oTthe 
District Judge’s order until a final adju-

sy. On the other hand, proceeding to 
trial without the interference of an ap­
peal will hasten the»t®e*»nation of this 
already protracted piece of litigation. 
M offtof^alt^p^gh the District Judge 
stated that he was dismissing the Balti­
more case, he “ consolidated” the issues 
of that case into the Cleveland case. 
The fraud adjudication therefore was 
preserved for appeal at the appropriate 
time.

Insurance Co., 328 F.2d 
Cir. 1964); Benton Ha^Por Malleable 
Industries v. International Union, Unit­
ed Automobile, Aim-ait and Agricultur­
al Implement \Wgjfers of America, sy, 
F.2d 70 ( 6 t h C « 9 6 6 ) .

Accordind^appellee’s motion to <iii
igqr.of m^s the Jjjppeal in case number 2059) 

11 be, JSrd it hereby is, granted. Also 
f  mandamus in 

mber JJii®!f,will be, and it hereby 
appellant’s request* 

of all proceedings in the Dis­
trict Court will be, and they hereby are. 
denied.

[3, 4] In case number 20631, appel­
lant asks that we issue a writ of manda­
mus directing the District Judge either 
to reverse his ruling on the issue of pat­
ent misuse and to dismiss the Cleveland 
case, or to certify that appellant should 
be permitted to prosecute an interlocuto­
ry appeal on this issue pursuant to 28 
U.S.C. § 1292(b). The first alternative 
is a transparent attempt to substitute a 
writ of mandamus for an appeal and we 
reject it as being entirely without merit. 
We also decline to issue a writ of man­
damus directing the District Judge to 
certify an interlocutory appeal. We do 
not consider his refusal to certify an in­
terlocutory appeal “a clear abuse of dis­
cretion or usurpation of judicial power” 
warranting the issuance of an extraordi­
nary writ pursuant to our authority un­
der 28 U.S.C. § 1651(a). University 
National Stockholders Protective Com­
mittee, Inc. v. University National Life

Lavon WRIGHT et al., Plaintiffs- 
Appellants, 

v.
The BOARD OF PUBLIC INSTRUCTION 

OF ALACHUA COUNTY, FLORIDA, 
et al., Defendants-Appellees.

No. 29999
Summary Calendar.

United States Court of Appeals, 
Fifth Circuit.
Aug. 4, 1970.

Rehearing Denied and Rehearing En 
Banc Denied Sept. 3, 1970.

School desegregation action in which 
an appeal was taken from a judgment in 
the United States District Court for the 
Northern District of Florida, David i 
Middlebrooks, Jr., J. The Court of Ap­
peals, Bell, Circuit Judge, held that 
record in case indicated that two 
virtually all-Negro elementary scbrv’ ' 
within city and in close proximity to each- 
other could be feasibly and practica 1 
paired and thereby resulting in 
stantial desegregation, and a birao* 
committee was appointed to act 
advisory capacity with respect to t;« 
desegregation of another virtually »•-

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Earl M. 
Jack Green 
Drew S. Da 
plaintiffs-aj

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