M. D. Rutledge v. Electric Hose & Rubber Company

THE CASE

This treble damage antitrust action was filed on April 29, 1969. The cause ultimately came on for trial before the District Court sitting without a jury on February 25, 1971 and reached final judgment on June 2, 1971.

Appellants, M. D. Rutledge, doing business as Rubber Hose Supply Company and Industrial Hose and Rubber Company, and Mechanicals, Inc., a corporation, owned and controlled by Rutledge, appeal from an order of the District Court entered on April 22, 1971, granting the appellees’ motion for dismissal pursuant to Rule 41(b) (Fed.R.Civ.P.) and the final judgment in favor of all of the appellees entered on June 2, 1971. We affirm.

THE INDUSTRY

The products involved in this case are hydraulic hose assemblies, which consist *672 of hydraulic hose and hydraulic hose couplings. Hydraulic hose is simply a reinforced flexible hose, the primary purpose of which is to carry fluids under relatively high pressures, and have been for many years manufactured and sold by companies generally known as “hose companies.” A hydraulic hose assembly consists of a length of the hydraulic hose with a coupling or fitting attached at each end to make it useful and has been…

(specially concurring):

I concur in the majority opinion insofar as it affirms the dismissal of the action. I do so because I am satisfied that the proof put on by the plaintiff would not have sustained a verdict if there had been a jury.

I do not approve the district court’s refusal to permit the plaintiff to rehabilitate its demand for a jury trial in order to comply with local rules. While I agree with the district court that the conduct of some of the plaintiff’s earlier lawyers was hardly a model of efficiency and diligence, it is risky business to punish inept lawyers by denying their client a trial by jury. I would have resolved the doubts about compliance with the local rules in favor of allowing the party to cure the deficiency. On the whole record in this case, however, any error or abuse of discretion with reference to the plaintiff’s Seventh-Amendment rights was harmless.

511 F.2d 668 1975-1 Trade Cases 60,151 M. D. RUTLEDGE et al., Appellants, v. ELECTRIC HOSE & RUBBER COMPANY et al., Appellees. Nos. 71--2840, 71--2841. United States Court of Appeals, Ninth Circuit. Jan 30, 1975. As Corrected March 3, 1975. 1 Joel R. Bennett (argued), Palos Verdes, Cal., for appellants. 2 Patrick Lynch, (argued), Frank R. Johnston, Los Angeles, Cal. (argued), John F. McClatchey, Cleveland, Ohio (argued), Gibson, Dunn & Crutcher, John J. Hanson, Don J. Belcher, Newlin, Tackabury & Johnston, Frank R. Johnston, O'Melveny & Myers, Homer I. Mitchell, Patrick Lynch, Los Angeles, Cal., Arthur, Dry, Kalish, Taylor & Wood, Walter Barthold, New York City, Mitchell, Silberberg & Knupp, Robert L. Winslow, Los Angeles, Cal., Domke, Marcoux, Allen & Beaman, John H. Schomer, Jackson, Mich., Robert J. Burdett, Chicago, Ill., Bruce M. Gleason, Los Angeles, Cal., Winston & Strawn, Earl A. Jinkinson, John W. Stack, Chicago, Ill., Thompson, Hine and Flory, John F. McClatchey, Cleveland, Ohio, Cantey, Hanger, Gooch, Cravens & Munn, Cecil F. Munn, Edward L. Kemble, Fort Worth, Tex., McCutchen, Black, Verleger & Shea, Phillip K. Verleger, Los…