L. A. Concrete Pumping, Inc., a California Corporation v. Leo A. Majich, Etc., Defendants-Respondents

This court declines to suspend the order of the district court dissolving the state court injunction which had been issued before removal.

Most or all of the acts restrained by the state court have already been accomplished. In order to provide effective relief now, some mandatory affirmative commands would have to be decreed. This, in our opinion, would put us in direct conflict with 29 U.S.C. § 104 . We, to some extent, accept prior state action as valid in a case after removal to a federal court, but at least when we must re-cut the whole cloth we believe we are precluded by federal statutes from doing so in this case.

If either party desires to expedite the appeal, he may move to do so, proposing a schedule of necessary steps.

(dissenting) :

I respectfully dissent.

Whether a stay pending appeal will be ultimately helpful to the appellant is not the question before us. Nor is the question whether we must do anything else to make a stay effective. To me, the issue is whether a stay should be granted. The parties are free to make additional applications to the district court. Whether the district court, if it felt it had the authority, would require the notices to be recalled is not before us.

Appellee intimates that the NorrisLaGuardia Act would bar our ability to stay the district court’s dissolution of the state court’s injunction. I do not believe that Congress, in passing the Norris-LaGuardia Act, had any intention of frustrating this traditional power of the courts. In Chicago & N. W. Ry. Co. v. United Transp. Union, 422 F. 2d 979, 983-985 (7th Cir. 1970),- the Seventh Circuit held that the Act did not prohibit a district court from granting an injunction pending appeal. I believe the analogy to our ability to stay district- court proceedings is appropriate. Although the ease was reversed and remanded on other grounds, 402 U.S. 570 , 91 S.Ct. 1731 , 29 L.Ed.2d 187 (1971), the circuit court…

483 F.2d 524 84 L.R.R.M. (BNA) 2655 , 72 Lab.Cas. P 13,916 L. A. CONCRETE PUMPING, INC., a California corporation, Plaintiff-Appellant, v. Leo A. MAJICH et al., etc., Defendants-Respondents. No. 73-2189. United States Court of Appeals, Ninth Circuit. July 12, 1973. Dissenting Opinion Aug. 14, 1973. Stuart H. Young, Jr., Hill, Farrer & Burrill, Los Angeles, Cal., for plaintiff-appellant. Wayne Jett, Los Angeles, Cal., for defendants-respondents. Before HASTIE, CHAMBERS and WALLACE, Circuit Judges. PER CURIAM: 1 This court declines to suspend the order of the district court dissolving the state court injunction which had been issued before removal. 2 Most or all of the acts restrained by the state court have already been accomplished. In order to provide effective relief now, some mandatory affirmative commands would have to be decreed. This, in our opinion, would put us in direct conflict with 29 U.S.C. Sec. 104 . We, to some extent, accept prior state action as valid in a case after removal to a federal court, but at least when we must recut the whole cloth we believe we are precluded by federal statutes from doing so in this case. 3 If either party desires to expedite the…