Marietta Page v. Telford Work

Appellant appeals from a judgment dismissing for want of federal jurisdiction a civil antitrust action for treble damages. Jurisdiction of the district court was invoked under the provisions of Title 15 U.S.C.A. §§ 1 , 2, 4, 7, 13, 15 and 18, commonly known as the Sherman Antitrust Act and the Clayton Act. This Court has jurisdiction under the provisions of Title 28 U.S.C.A. §§ 1291 and 1294.

Judgment of dismissal was entered following the granting by the district court of appellees’ motion for summary judgment based on the ground that there existed no genuine issue on a material fact relating to the question of jurisdiction. To denominate the proceedings leading up to the entry of judgment of dismissal as a motion for summary judgment is somewhat of a misnomer in the light of the record in this case. Following extensive pretrial discovery proceedings and conferences, culminating in a pretrial conference order containing 30 pages of admitted facts, the case was set for trial on its merits. On the day before the trial date the district court inquired of counsel if they were agreeable to submitting the question of jurisdiction on motions for summary judgment. In response to the…

On Petition for Rehearing.

An opinion was filed herein on March 8, 1961, affirming the judgment of the district court dismissing for want of federal jurisdiction a civil antitrust action.

On petition for rehearing, appellant asserts that we erred in our characterization of the procedural issues on appeal and in respect to the application of the rules of law stated in our opinion. We have reread the voluminous record in this case and concede that we may have been in error in holding that appellant, in effect, consented to a separate trial before the court on the separated issue of jurisdiction. This conclusion, however, does not require a reversal of the judgment.

Appellees made a timely motion for a summary judgment on the issue of jurisdiction. If the district court correctly concluded that appellees were entitled to a summary judgment, appellant cannot complain of the deprivation of a jury trial. Fidelity & Deposit Co. of Maryland v. United States, 1902, 187 U.S. 315 , 23 S.Ct. 120 , 47 L.Ed. 194 ; Lindsey v. Leavy, 9 Cir., 1945, 149 F.2d 899 ; Moore, Federal Practice, Vol. 6, § 56.06, pages 2037-2042. Appellees were entitled to a summary judgment on the question of federal…

290 F.2d 323 Marietta PAGE, Appellant, v. Telford WORK et al., Appellees. No. 16787. United States Court of Appeals Ninth Circuit. March 8, 1961. Rehearing Denied May 3, 1961. COPYRIGHT MATERIAL OMITTED Dudley K. Wright, Santa Ana, Cal., for appellant. Rollin L. McNitt and Edythe Jacobs, Los Angeles, Cal., for appellees. Before CHAMBERS, BARNES and JERTBERG, Circuit Judges. JERTBERG, Circuit Judge. 1 Appellant appeals from a judgment dismissing for want of federal jurisdiction a civil antitrust action for treble damages. Jurisdiction of the district court was invoked under the provisions of Title 15 U.S.C.A. §§ 1 , 2, 4, 7, 13, 15 and 18, commonly known as the Sherman Antitrust Act and the Clayton Act. This Court has jurisdiction under the provisions of Title 28 U.S.C.A. §§ 1291 and 1294. 2 Judgment of dismissal was entered following the granting by the district court of appellees' motion for summary judgment based on the ground that there existed no genuine issue on a material fact relating to the question of jurisdiction. To denominate the proceedings leading up to the entry of judgment of dismissal as a motion for summary judgment is somewhat of a misnomer…