Eli Mesirow and Thomas Morris v. Pepperidge Farm, Inc., a Connecticut Corporation

703 F.2d 339 1982-83 Trade Cases 65,164 Eli MESIROW and Thomas Morris, Plaintiffs-Appellants, v. PEPPERIDGE FARM, INC., a Connecticut corporation, Defendant-Appellee. No. 81-4471. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 14, 1982. Decided Jan. 25, 1983. Maxwell Keith, San Francisco, Cal., for plaintiffs-appellants. Forrest A. Hainline, III, Cooper, Kirkham, Hainline, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Northern District of California. Before DUNIWAY, FLETCHER and BOOCHEVER, Circuit Judges. DUNIWAY, Circuit Judge: 1 Plaintiffs Eli Mesirow and Thomas Morris appeal from the district court's dismissal on summary judgment of their claims against Pepperidge Farm, Inc., under Secs. 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1 and 2. They also ask us to review two orders imposing fines on their counsel during discovery. We affirm the dismissal of the antitrust claims, and decline to review the discovery sanctions for lack of jurisdiction. 2 I. Facts. 3 Plaintiffs distributed Pepperidge Farm biscuits, cookies and other products from January 1970 to May 1978, and from April 1970 to November 1978,…

Plaintiffs Eli Mesirow and Thomas Morris appeal from the district court’s dismissal on summary judgment of their claims against Pepperidge Farm, Inc., under §§ 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. They also ask us to review two orders imposing fines on their counsel during discovery. We affirm the dismissal of the antitrust claims, and decline to review *341 the discovery sanctions for lack of jurisdiction.

I. Facts.

Plaintiffs distributed Pepperidge Farm biscuits, cookies and other products from January 1970 to May 1978, and from April 1970 to November 1978, respectively. The terms of the relationship between plaintiffs and Pepperidge were set down in “consignment agreements” that designated the distributors as self-employed independent businesspersons. The agreements established a dual system of accounts for Pepperidge distributors, including plaintiffs: chain stores of three or more retail stores billed directly by Pepperidge, and chain or individual stores that distributors billed. Pepperidge employees regularly visited the stores of its direct-billed accounts to check on service and arrange promotional displays, but distributors such as plaintiffs actually…

I would not address the issue of whether an attorney in a case may wait until final judgment to appeal sanctions imposed during the earlier course of proceedings. We *346 have permitted attorneys to file appeals within thirty days from the entry of orders imposing such sanctions, Reygo Pacific Corp. v. Johnston Pump Co., 680 F.2d 647, 648 (9th Cir. 1982); Liew v. Breen, 640 F.2d 1046, 1048 (9th Cir. 1981); until now, we have never ruled on whether the attorney’s appeal may also be joined with that of the party at the conclusion of the case. There are strong policy reasons against piecemeal appeals which weigh in favor of encouraging the joinder of the attorney’s appeal with that of his client. 1 I believe, however, that we have no jurisdiction to resolve the issue at this time.

There were multiple claims and counterclaims filed in this case. On September 4, 1981, the trial judge ruled only on plaintiff’s antitrust claims and entered judgment under Fed.R.Civ.P. § 54(b) as to those claims alone. Moreover, the notice of appeal refers only to “the judgment entered pursuant to Fed.R.Civ.P. § 54(b) ... on September 4, 1981.” Thus, our jurisdiction is limited to review of those…