Fed. Sec. L. Rep. P 97,198 Roy Huey v. Teledyne, Inc.

Huey’s suit alleging securities laws violations was dismissed for failure to prosecute and he appeals. He also seeks review of the district court’s failure to certify the suit as a class action. We conclude that under the circumstances of this case the refusal to certify the class is not reviewable. Though we believe the district judge arrived at the proper result on the issue involved, the circumstances of this case require us to vacate the order of dismissal and remand the case for entry of a new order and for such further consideration, if any, as the district judge concludes is appropriate.

I

The district judge denied Huey’s motion for class certification May 31, 1977. On June 14, Huey’s counsel filed an affidavit stating that the case could not proceed to trial because the cost of trial would exceed the amount of Huey’s individual claim. On June 27, Huey sought certification of the class action question for appeal pursuant to 28 U.S.C. § 1292 (b), which was denied. The next day Huey’s case was called for trial. Huey made no appearance and the court ordered the matter dismissed for want of prosecution.

In a written order filed June 30, however, the district court ordered…