Jorgensen Bros. v. Commerce-Pacific, Inc.

(dissenting).

Denison-Johnson, Inc., brought this patent infringement suit against American Foreign Industries, Inc., Getz Bros. & Co., Inc., and Jorgensen Bros. Defendant Jorgensen Bros, filed an answer containing admissions, denials, affirmative defenses, and five counterclaims. Plaintiff was named a “counter-defendant” in all five counterclaims. Commerce-Pacific, Inc., not theretofore a party to the action, was named an additional “counter-defendant” in the first two counterclaims.

The relief prayed for included preliminary and permanent injunctions against both counter-defendants to restrain them from further engaging in combinations, conspiracies and illegal acts, as alleged in the counterclaims. An order was thereafter entered adding Commerce-Pacific, Inc., as a party to the action.

*770 Commerce-Pacific, Inc., having been made a party, then moved to dismiss the counterclaims against it, for asserted improper venue. This motion was granted, whereupon Jorgensen Bros, took this appeal. Commerce-Pacific, Inc., has moved to dismiss the appeal contending that the order is not a final judgment and that it is not appealable under 28 U.S.C.A. § 1292 (b) as an interlocutory order.…

(concurring).

In my view this is a situation where the appellant, except for Steiner, supra, would have asked in the district court for an order under Rule 54(b) of the Federal Rules of Civil Procedure. The attention of the parties is invited to the amendment of Rule 54(b), effective on July 19, 1961.

I am unable to agree that this is really an appeal from an interlocutory order granting or denying an injunction. The case against Commerce-Pacific did not reach the point of granting or denying an injunction. The dismissal is on the ground of venue. I test the case by what was the issue ruled on and what was the ruling, not by the prayer of a claim.

I would not think that we would allow an appeal if the cross-claim had been dismissed for want of jurisdiction or failure to state a claim — -just because there was a prayer for an injunction.

I distinguish Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 , 69 S. Ct. 1221 , 93 L.Ed. 1528 , on the ground it is a true collateral order doctrine case. To me, this is not.

The appeal is dismissed without prejudice.

The basic claim of Denison-Johnson, Inc., as plaintiff against Jorgensen Bros, and others, presumably is still pending in the district court. The Jorgensens’ counterclaim against Commerce-Pacific and the plaintiff Denison-Johnson has been dismissed as to Commerce-Pacific on the ground of improper venue. (The pleading so far as it concerns Commerce-Pacific would be more properly denominated a cross-claim. Likewise, Commerce-Pacific should be considered a third party defendant.)

No order under § 54(b), Federal Rules of Civil Procedure, 28 U.S.C., has been entered. And our case of Steiner v. Twentieth Century Fox Film Corporation, 9 Cir., 220 F.2d 105 , would negate the propriety of such an order here.

Appellant can claim no right for a permissive interlocutory appeal, if such were appropriate, because the necessary orders of the district court and this court are absent, 28 U.S.C. 1292(b).

But appellant claims a right to be here under the collateral order doctrine and because the “counterclaim” had a prayer for a temporary and for a permanent injunction. 28 U.S.C. 1292(a).

In our view, Baltimore Contractors, Inc., v. Bodinger, 348 U.S.…

294 F.2d 768 JORGENSEN BROS., Appellant, v. COMMERCE-PACIFIC, INC., Appellee. No. 17014. United States Court of Appeals Ninth Circuit. July 10, 1961. Townsend & Townsend, Stephen S. Townsend, Charles E. Townsend, Jr., and James B. Gambrell, San Francisco, Cal., for appellant. George Bouchard El Cajon, Cal., and Richard A. Perkins, Los Angeles, Cal., for appellee. Before CHAMBERS and HAMLEY, Circuit Judges, and BOWEN, District Judge. PER CURIAM. 1 The appeal is dismissed without prejudice. 2 The basic claim of Denison-Johnson, Inc., as plaintiff against Jorgensen Bros. and others, presumably is still pending in the district court. The Jorgensens' counterclaim against Commerce-Pacific and the plaintiff Denison-Johnson has been dismissed as to Commerce-Pacific on the ground of improper venue. (The pleading so far as it concerns Commerce-Pacific would be more properly denominated a cross-claim. Likewise, Commerce-Pacific should be considered a third party defendant.) 3 No order under 54(b), Federal Rules of Civil Procedure, 28 U.S.C., has been entered. And our case of Steiner v. Twentieth Century Fox Film Corporation, 9 Cir., 220 F.2d 105 , would negate the propriety of such an…