Eisen v. Carlisle & Jacquelin Court Opinion

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ETSEF v. CA R L ISL E  ft .TAC OTTERIN' 119
Cite as 370 F.2d 119 (1908)

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Morton EISEN, on Behalf of himself and 
all other purchasers and sellers of “odd- 
lots” on the New York Stock Exchange ’ 
similarly situated, Appellant, 

v.
CARLISLE & JACQUELIN and DeCop- 

pet & Doremus, each limited partner­
ships under New York Partnership 
Law, Article 8, and New York Stock 
Exchange, an unincorporated associa­
tion, Appellees.

Docket 30934.

United States Court of Appeals 
Second Circuit.

Argued Dec. 12, 1966.
Decided Dec. 19, 1966.

Proceeding on motion to dismiss ap­
peal from an order of the United States 
District Court for the Southern District 
jof New York, Harold R. Tyler, Jr., J., 41 
,'F.R.D. 147, dismissing investor’s class 
action, on ground that it was not main­
tainable under amended Federal Rules, 
against odd-lot dealers on New York 
Stock Exchange charging violations of 
antitrust laws but permitting investor 
to litigate his individual claims. The 
Court of Appeals, Irving R. Kaufman, 
Circuit Judge, held that order was ap­
pealable in that it would for all practical 
purposes terminate litigation in view of 
$70 claim of individual investor.

Motion denied.

3. Courts @=405(12.9)
Order dismissing investor’s class ac­

tion, on ground that it was not maintain­
able under amended Federal Rules, 
against odd-lot dealers on New York 
Stock Exchange charging violations of 
antitrust laws but permitting investor 
to litigate his individual claims was ap­
pealable in that it would for all practical 
purposes terminate litigation in view of 
$70 claim of individual investor. Sher­
man Anti-Trust Act, §§ 1, 2, 15 U.S.C.A. 
§§ 1, 2; Securities Exchange Act of 
1934, §§ 6(b, d), 19(a), 15 U.S.C.A. §§ 
78f(b, d), 78s(a ); 28 U.S.C.A. §§ 1291, 
1292; Fed.Rules Civ.Proc. rule 23(c) 
(1), 28 U.S.C.A.
4. Courts @=>405(12)

Where effect of district court’s or­
der, if not reviewed, is death knell of ac­
tion, review should be allowed. 28 U.S. 
C.A. §§ 1291, 1292.

Laventhall & Zicklin, New York City 
(Pomerantz, Levy, Haudek & Block, New 
York City, of counsel), for appellant.

Carter, Ledyard & Milburn, New York 
City, for appellee Carlisle & Jacquelin.

Kelley, Drye, Newhall, Maginnes & 
Warren, New York City, for appellee De- 
Coppet & Doremus.

Milbank, Tweed, Hadley & McCloy, 
New York City, for appellee New York 
Stock Exchange.

Before WATERMAN, MOORE and 
KAUFMAN, Circuit Judges.

1. Courts @=405(3) .
All orders are not appealable. 28 

U.S.C.A. §§ 1291, 1292.

2. Courts 3=405(12)
“ Final decision” within purview of 

statute governing jurisdiction of appeals 
from final decisions of federal District 
Courts does not necessarily mean the last 
order possible to be made in case. 28 
U.S.C.A. § 1291.

See publication Words and Phrases 
for other judicial constructions and 
definitions.

KAUFMAN, Circuit Judge:
The sole question presented by this 

motion is whether appellant may take an 
appeal from an order of the district court 
dismissing his class action, but permit­
ting him to litigate his individual claims.

Morton Eisen brought an action in the 
district court alleging that two major 
“ odd-lot” dealers on the New York Stock 
Exchange— Carlisle & Jacquelin and De- 
Coppet & Doremus—  hadi conspired and 
combined to monopolize odd-lot trading 
and had charged excessive fees, in vio-

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120 370 FEDERAL REPORTER, 2d SERIES

lation of the Sherman Act. 15 U.S.C.
§§ 1, 2. Specifically, he challenged the 
so-called “ odd-lot differentials ’ charged 
by the appellees and other odd-lot dealers 
for transactions involving other than 100 
share lots of securities. The complaint 
also charged the New York Stock Ex­
change with having breached its duties, 
allegedly prescribed by the Securities Ex­
change Act of 1934, concerning suspen­
sion of odd-lot trading. 15 U.S.C. §§ 
78f(b), 78f(d), 78s(a).

Eisen sued both for himself and on be­
half of all odd-lot purchasers and sellers 
on the Exchange. Appellees moved to 
dismiss the class action, alleging that it 
was not maintainable under amended 
Rule 23(c) (1) of the Federal Rules of 
Civil Procedure. Judge Tyler granted 

’ the motion and dismissed the class ac­
tion, but did not dismiss Eisen’s individ­
ual claims or pass on their merits.

[I ]t  is impossible to devise a formula 
to resolve all marginal cases coming 
within what might well be called the 
“ twilight zone’’ of finality. Because 
of this difficulty this Court has held 
that the requirement of finality be giv­
en a “practical rather than a technical 
construction.” * * * [I]n  deciding
the question of finality the most im­
portant competing considerations are 
“ the inconvenience and costs of piece­
meal review on the one hand and the 
danger of denying justice by delay on 
the other.”  379 U.S. at 152-153, 85 
S.Ct. at 311 (emphasis supplied).

[1 ,2 ] It is too clear for discussion 
that all orders are not appealable. 28 
U.S.C. § 1291 provides that the courts of 
appeals have jurisdiction of appeals from 
all “ final” decisions of the district 
courts, while 28 U.S.C. § 1292 permits ap­
peals from a narrowly limited class of in­
terlocutory orders. But as the Supreme 
Court has commented, “ [A ] decision 
‘final’ within the meaning of § 1291 does 
not necessarily mean the last order pos­
sible to be made in a case.”  Gillespie v. 
United States Steel Corp., 379 U.S. 148, 
152, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964). 
The question presented to us, therefore, 
is whether Judge Tyler’s order dismiss­
ing the class action fails within “ that 
small class which finally determine 
claims of right separable from, and col­
lateral 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 adjudi­
cated.”  Cohen v. Beneficial Industrial 
Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 
1221, 1225, 93 L.Ed. 1528 (1949).

[3] In the present case, these consid­
erations, rather than being “ competi­
tive,” lead to a single conclusion—that 
the order dismissing this class action is 
appealable. The alternatives are to ap­
peal now or to end the lawsuit for all 
practical purposes. Judge Tyler’s order 
“ if unreviewed, will put an end to the 
action” . Chabot v. National Securities 
and Research Corp., 290 F.2d 657, 659 
(2d Cir. 1961). We can safely assume 
that no lawyer of competence is going to 
undertake this complex and costly case to 
recover $70 for Mr. Eisen. See Escott v. 
Barehris Constr. Corp., 340 F.2d 731, 733 
(2d Cir.), cert, denied sub nom. Drexel 
& Co. v. Hall, 382 U.S. 816, 86 S.Ct. 37,^15 
L.Ed.2d 63 (1965). 
missec

vly

In making this determination, Justice 
Black’s language in the Gillespie case is 
instructive:

 ̂^ere are', therefore, most compelling 
reasons to deny this motion to dismiss the 
appeal; and permitting Eisen to proceed 
in no way conflicts with any precedents 
of this Court. Appellees rely on Oppen- 
heimer v. F. J. Young & Co., 144 F.2d 
387 (2d Cir. 1944), but that decision was 
reached before the Supreme Court spoke 
in Cohen, supra. While it is true that in 
Lipsett v. United States, 359 F.2d 956 
(2d Cir. 1966), we did not permit an ap­
peal from the dismissal of a class action, 
we reached that conclusion because the 
facts did not come within the framework 

the Cohen doctrine; the plaintiffsof

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PURE OIL COMPANY v. BOYNE 121
Cito as ,‘170 F

lacked standing, and dismissal of the 
class action allegations, we said, merely 
“ prettified” the pleadings since the ac­
tion could still continue.

[4] Dismissal of the class action in 
the present case, however, will irrepara­
bly harm Eisen and all others similarly 
situated, for, as we have already noted, 
it will for all practical purposes terminate 
the litigation. Where the effect of a 
district court’s order, if not reviewed, is 
the death knell of the action, review 
should be allowed. See Roberts v. United 
States District Court, 339 U.S. 844, 70
S.Ct. 954, 94 L.Ed. 1326 (1950); Chabot 
v. National Securities and Research 
Corp., supra.

Motion denied.

M ICi U6t«> .
court docket noting court’s denial in 
open court, of motions in admiralty suit 
for rehearing and to amend court s find­
ings was not a final judgment for pur­
pose of computing time for taking an 
appeal before effective date of rule mak­
ing Federal Rules of Civil Procedure ap­
plicable to suits in admiralty.

Affirmed.

1. Admiralty ^ 1 0 8
Minute entry by clerk in court docket 

noting court’s denial, in open court, of 
motions in admiralty suit for rehearing 
and to amend court’s findings was not 
a final judgment for purpose of com­
puting time for taking appeal before ef­
fective date of rule making Federal Rules 
of Civil Procedure applicable to suits 
in admiralty. Admiralty Rules, rule 56, 
28 U.S.C.A.; 28 U.S.C.A. § 2107; Fed. 
Rules Civ.Proc. rules 1, 81(a) (1), 28 
U.S.C.A.

The PURE OIL COMPANY, Appellant, 
v.

C. J. BOYNE et al., Appellees.

2. Federal Civil Procedure <©=2392, 2621 
Courts render judgments and clerks 

only enter them on court records.

BRENT TOWING COMPANY, Inc., 
j. Appellant,

{* j  v.
The PURE OIL COMPANY, Appellee.

BRENT TOWING COMPANY, Inc., 
Claimant, etc., Appellant, 

v.
C. J. BOYNE et al., d /b /a  Caribbean Tow­

ing Co., Claimants, etc., Appellees. 
Nos. 22522, 22583.

United States Court of Appeals 
Fifth Circuit.
Dec. 6, 1966.

3. Admiralty ^ lO S
Only document which could consti­

tute final judgment for purpose of com­
puting time for taking an appeal in 
admiralty suit was the formal decree 
entered by court approximately a month 
and a half after clerk had noted in court 
docket an oral order denying motions 
for rehearing and to amend court s find­
ings. 28 U.S.C.A. § 2107.

H. Barton Williams, Deutsch, Kerrigan 
& Stiles, New Orleans, La., for Pure Oil 
Co., W. Gerald Gaudet, New Orleans, La., 
of counsel.

Admiralty suit in which an appeal 
was taken from a judgment of the United 
States District Court for the Western 
District of Louisiana, Richard J. Putnam, 
J., 235 F.Supp. 299. The Court of Ap­
peals, Thornberry, Circuit Judge, held, 
inter alia, that minute entry by clerk in

370 F.2d—8Va

J. Y. Gilmore, Jr., Faris, Ellis, Cutrone, 
Gilmore & Lautenschlaeger, New Orleans, 
La., for C. J. Boyne and others.

George A. Frilot, III, Lemle & Kel- 
leher, Eldon T. Harvey, III, New Orleans, 
La., for Brent Towing Co., Inc.

Before THORNBERRY and COLE­
MAN, Circuit Judges, and YOUNG, Dis­
trict Judge.

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