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LA BUY v. HOWES LEATHER CO.

decided: January 14, 1957.

LA BUY, UNITED STATES DISTRICT JUDGE
v.
HOWES LEATHER CO., INC., ET AL.



CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan, Brennan

Author: Clark

[ 352 U.S. Page 250]

 MR. JUSTICE CLARK delivered the opinion of the Court.

These two consolidated cases present a question of the power of the Courts of Appeals to issue writs of mandamus to compel a District Judge to vacate his orders entered under Rule 53 (b) of the Federal Rules of Civil Procedure referring antitrust cases for trial before a master. The petitioner, a United States District Judge sitting in the Northern District of Illinois, contends that the Courts of Appeals have no such power and that, even if they did, these cases were not appropriate ones for its exercise. The

[ 352 U.S. Page 251]

     Court of Appeals for the Seventh Circuit has decided unanimously that it has such power and, by a divided court, that the circumstances surrounding the references by the petitioner required it to issue the mandamus about which he complains. 226 F.2d 703. The importance of the question in the administration of the Federal Rules of Civil Procedure, together with the uncertainty existing on the issue among the Courts of Appeals, led to our grant of a writ of certiorari. 350 U.S. 964. We conclude that the Court of Appeals properly issued the writs of mandamus.

History of the Litigation. -- These petitions for mandamus, filed in the Court of Appeals, arose from two antitrust actions instituted in the District Court in 1950.*fn1 Rohlfing*fn2 involves 87 plaintiffs, all operators of independent retail shoe repair shops. The claim of these plaintiffs against the six named defendants -- manufacturers, wholesalers, and retail mail order houses and chain operators -- is identical. The claim asserted in the complaint is a conspiracy between the defendants "to monopolize and to attempt to monopolize" and fix the price of shoe repair supplies sold in interstate commerce in the Chicago area, in violation of the Sherman Act. The allegations also include a price discrimination charge under the Robinson-Patman Act. Shaffer*fn3 involves six plaintiffs, all wholesalers of shoe repair supplies, and six defendants, including manufacturers and wholesalers of such supplies

[ 352 U.S. Page 252]

     and a retail shoe shop chain operator. The allegations here also include charges of monopoly and price fixing under the Sherman Act and price discrimination in violation of the Robinson-Patman Act. Both complaints pray for injunctive relief, treble damages, and an accounting with respect to the discriminatory price differentials charged.

The record indicates that the cases had been burdensome to the petitioner. In Rohlfing alone, 27 pages of the record are devoted to docket entries reflecting that petitioner had conducted many hearings on preliminary pleas and motions. The original complaint had been twice amended as a result of orders of the court in regard to misjoinders and severance; 14 defendants had been dismissed with prejudice; summary judgment hearings had resulted in a refusal to enter a judgment for some of the defendants on the pleadings; over 50 depositions had been taken; and hearings to compel testimony and require the production and inspection of records were held. It appears that several of the hearings were extended and included not only oral argument but submission of briefs, and resulted in the filing of opinions and memoranda by the petitioner. It is reasonable to conclude that much time would have been saved at the trial had petitioner heard the case because of his familiarity with the litigation.

The References to the Master. -- The references to the master were made under the authority of Rule 53 (b) of the Federal Rules of Civil Procedure.*fn4 The cases were called on February 23, 1955, on a motion to reset them

[ 352 U.S. Page 253]

     for trial. Rohlfing was "No. 1 below the black line" on the trial list, which gave it a preferred setting. All parties were anxious for an early trial, but plaintiffs wished an adjournment until May. The petitioner announced that "it has taken a long time to get this case at issue. I remember hearing more motions, I think, in this case than any case I have ever sat on in this court." The plaintiffs estimated that the trial would take six weeks, whereupon petitioner stated he did not know when he could try the case "if it is going to take this long." He asked if the parties could agree "to have a Master hear" it. The parties ignored this query and at a conference in chambers the next day petitioner entered the orders of reference sua sponte.*fn5 The orders declared that the court was "confronted with an extremely congested calendar" and that "exception [ sic ] conditions exist for this reason" requiring the references. The cases were referred to the master "to take evidence and to report the same to this Court, together with his findings of fact and conclusions of law." It was further ordered in each case that "the Master shall commence the trial of this cause" on a certain date and continue with diligence, and that the parties supply security for costs.

[ 352 U.S. Page 254]

     While the parties had deposited some $8,000 costs, the record discloses that all parties objected to the references and filed motions to vacate them. Upon petitioner's refusal to vacate the references, these mandamus actions were filed in the Court of Appeals seeking the issuance of writs ordering petitioner to do so. These applications were grounded on 28 U. S. C. § 1651 (a), the All Writs Act.*fn6 In his answer to the show cause orders issued by the Court of Appeals, petitioner amplified the reasons for the references, stating "that the cases were very complicated and complex, that they would take considerable time to try," and that his "calendar was congested." Declaring that the references amounted to "a refusal on his [petitioner's] part, as a judge, to try the causes in due course," the Court of Appeals concluded that "in view of the extraordinary nature of these causes" the references must be vacated "if we find that the orders were beyond the court's power under the pertinent rule." 226 F.2d, at 705, 706. And, it being so found, the writs issued under the authority of the All Writs Act. It is not disputed that the same principles and considerations as to the propriety of the issuance of the writs apply equally to the two cases.

The Power of the Courts of Appeals. -- Petitioner contends that the power of the Courts of Appeals does not extend to the issuance of writs of mandamus to review interlocutory orders except in those cases where the review of the case on appeal after final judgment would be frustrated. Asserting that the orders of reference were in exercise of his jurisdiction under Rule 53 (b), petitioner urges that such action can be reviewed only on appeal and not by writ of mandamus, since by congressional

[ 352 U.S. Page 255]

     enactment appellate review of a District Court's orders may be had only after a final judgment. The question of naked power has long been settled by this Court. As late as Roche v. Evaporated Milk Association, 319 U.S. 21 (1943), Mr. Chief Justice Stone reviewed the decisions and, in considering the power of Courts of Appeals to issue writs of mandamus, the Court held that "the common law writs, like equitable remedies, may be granted or withheld in the sound discretion of the court." Id., at 25. The recodification of the All Writs Act in 1948, which consolidated old §§ 342 and 377 into the present § 1651 (a), did not affect the power of the Courts of Appeals to issue writs of mandamus in aid of jurisdiction. See Bankers Life & Casualty Co. v. Holland, 346 U.S. 379, 382-383 (1953). Since the Court of Appeals could at some stage of the antitrust proceedings entertain appeals in these cases, it has power in proper circumstances, as here, to issue writs of mandamus reaching them. Roche, supra, at 25, and cases there cited. This is not to say that the conclusion we reach on the facts of this case is intended, or can be used, to authorize the indiscriminate use of prerogative writs as a means of reviewing interlocutory orders. We pass on, then, to the only real question involved, i. e., whether the exercise of the power by the Court of Appeals was proper in the cases now before us.

The Discretionary Use of the Writs. -- It appears from the docket entries to which we heretofore referred that the petitioner was well informed as to the nature of the antitrust litigation, the pleadings of the parties, and the gist of the plaintiffs' claims. He was well aware of the theory of the defense and much of the proof which necessarily was outlined in the various requests for discovery, admissions, interrogatories, and depositions. He heard ...


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