Zirpoli

This is a petition for a writ of mandamus commanding the respondent Judge to vacate and set aside an order of October 16, 1962, which directed that all further proceedings in an action brought by the present petitioner against Ampex Corporation be stayed “until completion of all proceedings in the trial court” in an action pending in the Superior Court of the State of California, wherein Ampex Corporation is plaintiff and Mach-Tronics, Inc., the present petitioner, and others, are defendants.

The action in which further proceedings were thus stayed was commenced by the present petitioner on August 6, 1962, by the filing of a complaint against Ampex Corporation in the United States District Court for the Northern District of California, Southern Division. The complaint alleged that defendant Ampex and Radio Corporation of America had engaged and were engaged in a conspiracy to restrain and to monopolize interstate and foreign commerce in videotape recorders; that defendant had in fact achieved monopoly in violation of §§ 1 and 2 of the Sherman Act; that the *822 said conspirators agreed to certain acts in pursuance of the conspiracy involving the elimination of competition, the…

(dissenting).

I dissent. I have no quarrel with most of Judge POPE’S careful and scholarly opinion. However, much of it seems irrelevant to the case before us, and it does not convince me that Judge Zirpoli did not have discretion to do what he did.

The order that was actually entered reads as follows:

It is important to note what the court did not do as well as what it did do. It did not refuse to exercise its jurisdiction. On the contrary, it merely postponed that exercise, not until the California state court decision might become final, but only until the conclusion of proceedings in that case in the trial court. Moreover, it did not make an order which purported to shut off any application by Mach-Tronics for leave to proceed sooner if the circumstances warranted it. On the contrary, the stay recites that it is until the further order of the court. This is no abandonment of the court’s control over the conduct of the case.

The court’s order also indicates that the court was not applying the doctrine of abstention with which so much of Judge POPE’S opinion is concerned. It did not relegate Mach-Tronics to the state court for the determination of some unsettled state…