Before SWYGERT, Chief Judge, and KILEY and KERNER, Circuit Judges.
The plaintiffs filed a complaint alleging a violation of the Sherman Act by defendants' concerted refusal to deal based upon a lockout, and seek injunctive relief and damages. The district court on July 3, 1970 entered a temporary restraining order enjoining defendants from refusing to supply and sell plaintiffs processed milk and other dairy products. Defendants filed "an appeal" from that order and from a subsequent order of July 6 denying defendants' motion to dissolve the temporary restraining order. On July 6, 1970 this court stayed the district court's temporary restraining order pending a response by the plaintiffs to the defendants' motion for a stay of the temporary restraining order. The response was filed July 7, 1970.
On July 7, 1970 defendants, Dean Foods Company and Borden, Inc., filed their petition for leave to appeal, pursuant to 28 U.S.C. § 1292(b), from the temporary restraining order entered by the district court on July 3, 1970 and from an order entered by the district court on July 6, 1970 denying the motion of the defendants to dissolve the temporary restraining order.
The district judge certified that he was of the opinion that the temporary restraining order involved a controlling question of law as to which there was substantial ground for difference of opinion and that an immediate appeal from the temporary restraining order may materially advance the ultimate termination of the litigation and defendants filed their petition for leave to appeal under 28 U.S.C. § 1292(b) now before us.
This court now permits the appeal to be taken from the temporary restraining order. Because of the exigency for a prompt disposition of the issues presented, we expedite the appeal under Rule 2 of the Federal Rules of Appellate Procedure.
We have considered the record transferred to us from the district court together with the motion for stay of the temporary restraining order, the response of the plaintiffs in opposition to the motion, the affidavit of John W. Loss, and defendants' memorandum in support of the petition for leave to appeal.
Plaintiffs are master vendors, that is, they are firms who purchase dairy products from dairy processors such as Dean and Borden and resell on more than one route. Although plaintiffs claim that they are not members of Local 753 of the Brotherhood of Teamsters, defendants make the counter-claim, with some support in the record, that the master vendors are represented for collective bargaining purposes by the union. Unfortunately, the district judge did not decide this issue.
We are convinced, however, from an examination of the record that the plaintiffs are at the least indirectly involved in the labor dispute currently existing between the union and Sidney Wanzer & Sons, Inc. and which dispute has spread to include Dean and Borden by reason of the latters' lockout as a countermeasure against the strike of Wanzer by Local 753, and that regardless of plaintiffs' complaint charging an antitrust violation and any factual merit to their claim, this is a case involving or growing out of a labor dispute within the meaning of the Norris-LaGuardia Act, 29 U.S.C. §§ 101 et seq . Therefore, the federal district court is precluded by law from issuing "any restraining order or temporary or permanent injunction." 29 U.S.C. § 101.
The cause is remanded with direction to dissolve the temporary restraining order heretofore granted.