Stephen H. Marks v. San Francisco Real Estate Board

I.

This is an antitrust action which alleges price-fixing of real estate commission rates in Marin County, California. The initial complaint was filed on February 24, 1971. *948 The suit was certified as a class action on April 10, 1972. Plaintiff commenced discovery and began compiling a list of class members, which was completed on September 20, 1974, after considerable delay. On May 13,1974, the defendants had moved for an order decertifying the class and dismissing the action for lack of prosecution. The district court, relying on this Court’s decision in Kline v. Coldwell Banker & Co., 508 F.2d 226 (9th Cir. 1974), cert. denied, 421 U.S. 963 , 95 S.Ct. 1950 , 44 L.Ed.2d 449 (1975), decertified the class on February 24, 1975; but did not rule on the motion to dismiss. Marks v. San Francisco Real Estate Board, 69 F.R.D. 353 (N.D.Cal.1975).

Plaintiff subsequently undertook two appeals of the class decertification order. The first was pursuant to 28 U.S.C. § 1292 (b), which this Court refused to accept because it believed the order was reviewable under 28 U.S.C. § 1291 as a final judgment under the “death knell” doctrine. Plaintiff’s § 1291 appeal was heard and the case was…

(concurring in the result):

I concur in the result reached by Judge Larson in Part I of his opinion. Plaintiff is entitled to pursue his individual claim and the dismissal by the district court was improper. There was no necessity that the plaintiff, following the remand in Hooley v. Red Carpet Real Estate, 549 F.2d 643 (9th Cir. 1977), continue his efforts to demonstrate that the “death knell” had sounded. Quite properly he could decide to pursue his individual claim only. As Judge Larson points out, Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978) compels that course. Plaintiff’s attempt to do so should not have been thwarted by a dismissal.

Part II of Judge Larson’s opinion undertakes a review of the district court’s decertification of the class. To do so is premature. To hold otherwise would encourage efforts to secure dismissals following a decertification to obtain its interlocutory review contrary to the purpose of Coopers & Lybrand v. Livesay, supra. Distinguishing dismissals resulting from such efforts from those not so induced, as Judge Larson does in Part II of his opinion, constitutes the assumption by the appellate courts of an…

concurring:

I concur in Part I of Judge Larson’s opinion. As to Part II, I agree with Judge Sneed that it is inappropriate for us to review the merits of the order decertifying the class. I am not certain, however, that the subordinate arguments made by Judge Sneed support his position. It is most unlikely, in my view, that if we were to approve Judge Larson’s approach, we would encourage efforts to secure dismissals following the decertification, even if that did occur in Huey v. Teledyne, Inc. It should be noted, moreover, that the settlement value of the case will be affected whichever way we rule on the appealability issue presented here.

I am in full agreement with Judge Sneed that it would be contrary to the purpose of Coopers & Lybrand v. Livesay, 437 U.S. 463 , 98 S.Ct. 2454 , 57 L.Ed.2d 351 (1978), to review the decertification order here. Furthermore, to do so would be contrary to our holding in Blake v. City of Los Angeles, 595 F.2d 1367 (9th Cir. 1979). In my view, that case is indistinguishable from the one before us. It is an adequate, independent ground for holding that we should not review the decertification order. Our decision in Blake survives the Supreme…

627 F.2d 947 1980-2 Trade Cases 63,551 Stephen H. MARKS, Appellant, v. SAN FRANCISCO REAL ESTATE BOARD et al., Appellees. No. 77-2987. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 15, 1979. Decided Sept. 11, 1980. 1 Francis O. Scarpulla, San Francisco, Cal., for appellant. 2 Ronald D. Rattner, M. Laurence Popofsky, San Francisco, Cal., on brief; Moses Lasky, Lasky, Haas, Cohler & Munter, San Francisco, Cal., for appellees. 3 Appeal from the United States District Court for the Northern District of California. 4 Before SNEED and KENNEDY, Circuit Judges, and LARSON, * Senior District Judge. 5 LARSON, Senior District Judge. I. 6 This is an antitrust action which alleges price-fixing of real estate commission rates in Marin County, California. The initial complaint was filed on February 24, 1971. The suit was certified as a class action on April 10, 1972. Plaintiff commenced discovery and began compiling a list of class members, which was completed on September 20, 1974, after considerable delay. On May 13, 1974, the defendants had moved for an order decertifying the class and dismissing the action for lack of prosecution. The district court, relying on…