Allan F. Breed v. United States District Court for the Northern District of California, Lionel Taylor and Henry Parker, Real Parties in Interest

Petitioners, defendants in the trial court, seek a writ of mandamus or prohibition under the All Writs Act, 28 U.S.C. § 1651 , directing a three-judge district court to vacate its order compelling discovery. We postponed submission pending decision by the Supreme Court in Kerr v. United States District Court, 9 Cir., 1975, 511 F.2d 192 , affirmed, 1976, 426 U.S. 394 , 96 S.Ct. 2119 , 48 L.Ed.2d 725 (1976). We now submit the case and deny the petition.

I. Jurisdiction.

As a preliminary matter, we consider whether we have jurisdiction of a petition for an extraordinary writ directed to a three-judge district court. MTM, Inc. v. Baxley, 1975, 420 U.S. 799 , 95 S.Ct. 1278 , 43 L.Ed.2d 636 , implies that we do. There a three-judge court had dismissed the plaintiffs’ civil rights action without reaching the constitutional issues which had required its formation, relying instead upon the in appropriateness of federal intervention while parallel state proceedings were pending. General Corp. v. Sweeton, N.D.Ala., 1973, 365 P.Supp. 1182, appeal dismissed sub nom. MTM, Inc. v. Baxley, supra. The plaintiffs took a direct appeal to the Supreme Court as provided in 28 U.S.C. § 1253 . In…