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Switzerland Assn. v. Horne's Market

U.S.
Nov 7, 1966
385 U.S. 23 (1966)

Summary

holding that the denial of a motion for summary judgment containing a request for permanent injunctive relief, although having the same practical effect as a denial of permanent injunctive relief, was not appealable because the relief was available after the trial

Summary of this case from Rauscher Pierce Refsnes, Inc. v. Birenbaum

Opinion

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT.

No. 42.

Argued October 17, 1966. Decided November 7, 1966.

Petitioners sought a preliminary and permanent injunction in this trademark infringement suit. Following joinder of issues before trial, petitioners filed a motion for summary judgment granting a permanent injunction, which the District Court denied because of unresolved factual issues. The Court of Appeals held that the order denying summary judgment was not an "interlocutory" one under 28 U.S.C. § 1292 (a)(1), which provides for an appeal from an interlocutory order "refusing" an injunction, and dismissed the appeal. Held: Since the denial of the motion for summary judgment related only to pretrial procedures and not to the merits, it was not "interlocutory" and therefore not appealable under § 1292(a)(1).

351 F.2d 552, affirmed.

David Toren argued the cause for petitioners. With him on the briefs were John J. McGlew and Alfred E. Page.

Harold E. Cole argued the cause and filed a brief for respondent.


Petitioners brought this suit for trademark infringement and unfair competition under the trademark laws. 60 Stat. 427, 15 U.S.C. § 1051 et seq. They sought a preliminary injunction during the pendency of the action, a permanent injunction, and damages. After issue was joined, petitioners moved for a summary judgment granting a permanent injunction and awarding damages against respondent. The District Court could not say that there was "no genuine issue as to any material fact" within the meaning of Rule 56 of the Federal Rules of Civil Procedure which governs summary judgments and accordingly denied the motion. Petitioners appealed, claiming that order to be an "interlocutory" one "refusing" an injunction within the meaning of § 1292(a)(1) of the Judicial Code, 28 U.S.C. § 1292 (a)(1).

That section provides:
"(a) The courts of appeals shall have jurisdiction of appeals from:
"(1) Interlocutory orders of the district courts of the United States . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court."

The Court of Appeals held that the order denying the motion for a summary judgment was not an "interlocutory" one within the meaning of § 1292(a)(1) and dismissed the appeal for want of jurisdiction. 351 F.2d 552. We granted certiorari because of a conflict between that decision and those from the Second Circuit. See, e. g., Federal Glass Co. v. Loshin, 217 F.2d 936.

Subsequent to the grant of certiorari in this case, the Second Circuit, en banc, reversed its position and held that such an order is not appealable. Chappell Co., Inc. v. Frankel, 367 F.2d 197.

Unlike some state procedures, federal law expresses the policy against piecemeal appeals. See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176. Hence we approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders. It is earnestly argued, however, that, although this order denied a permanent injunction, it was nonetheless "interlocutory" within the meaning of § 1292(a)(1) because the motion for summary judgment did service for a motion for a preliminary injunction (see Federal Glass Co. v. Loshin, supra, at 938) and that therefore "interlocutory" must also include a denial of a permanent injunction.

We take the other view not because "interlocutory" or preliminary may not at times embrace denials of permanent injunctions, but for the reason that the denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial. Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view "interlocutory" within the meaning of § 1292(a)(1). We see no other way to protect the integrity of the congressional policy against piecemeal appeals. Affirmed.

As Judge Charles E. Clark said, in dissent, in Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F.2d 800, at 805-806:
"A district judge's orders advancing a case to trial ought not to be critically examined and re-examined by the cumbersome method of appeal before he has approached the stage of adjudication. . . . I believe this an intolerable burden for us, an improper and uncertain interference with trial court discretion, and a confusing invitation to indiscriminate appeals in the future — all contrary to settled federal law against piecemeal appeals."

MR. JUSTICE HARLAN would affirm the judgment below on the basis of the reasoning set forth in Judge Waterman's opinion for the Second Circuit in Chappell Co., Inc. v. Frankel, 367 F.2d 197.

MR. JUSTICE STEWART concurs in the result.


Summaries of

Switzerland Assn. v. Horne's Market

U.S.
Nov 7, 1966
385 U.S. 23 (1966)

holding that the denial of a motion for summary judgment containing a request for permanent injunctive relief, although having the same practical effect as a denial of permanent injunctive relief, was not appealable because the relief was available after the trial

Summary of this case from Rauscher Pierce Refsnes, Inc. v. Birenbaum

holding that orders "that in no way touch on the merits of the claim but only relate to pretrial procedures" cannot be appealed on an interlocutory basis

Summary of this case from Howard v. Svoboda

denying jurisdiction under § 1292 because permanent injunctive relief could be obtained after trial such that no irreparable consequences mandated immediate review

Summary of this case from Administrative Mgmt. v. Royal Amer. Managers

recognizing that interlocutory review of pretrial orders is "an intolerable burden for us, an improper and uncertain interference with trial court discretion, and a confusing invitation to indiscriminate appeals in the future"

Summary of this case from In re Braxton

In Switzerland Cheese Assn., Inc. v. E. Horne's Market, Inc., 385 U.S. 23 (1966), for example, petitioners contended that the District Court's denial of their motion for summary judgment was appealable under § 1292(a)(1) simply because its practical effect was to deny them the permanent injunction sought in their summary-judgment motion.

Summary of this case from Carson v. American Brands, Inc.

In Switzerland Assn., supra, this Court left open the question whether an order denying summary judgment might be appealable as an order denying an injunction when the ground for the denial was other than the existence of a triable issue of fact.

Summary of this case from Goldstein v. Cox

emphasizing a strong “congressional policy against piecemeal appeals”

Summary of this case from Lake Eugenie Land Development v. BP Exploration & Production, Inc.

In Switzerland Cheese Ass'n, Inc. v. E. Home's Market, Inc., 385 U.S. 23, 25, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Supreme Court characterized the denial of such a summary judgment motion because of disputed issues of fact as relating only to "pretrial procedures" and therefore not "`interlocutory' within the meaning of § 1292(a)(1)."

Summary of this case from United Keetoowah Band v. U.S.

noting that denial of summary judgment "is strictly a pretrial order that decides only one thing — that the case should go to trial"

Summary of this case from United Keetoowah Band v. U.S.

cautioning that § 1292's jurisdiction over interlocutory appeals should be applied "somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders"

Summary of this case from Meredith v. Oregon

In Switzerland Cheese, the Supreme Court held that "[o]rders that in no way touch on the merits of the claim but only relate to pretrial procedures are not... `interlocutory' within the meaning of § 1292(a)(1).

Summary of this case from United States v. Western Elec. Co., Inc.

In Switzerland Cheese, the Court reasoned that such a denial does not touch on the merits of the claim but only relates to pretrial procedures and thus is not interlocutory within the meaning of section 1292(a)(1).

Summary of this case from Matterhorn, Inc. v. NCR Corp.

In Switzerland Cheese Ass'n, Inc. v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Supreme Court held that a summary judgment motion denying a permanent injunction was not immediately appealable under § 1292(a)(1) where the district judge's decision that there were triable issues "[did] not settle or even tentatively decide anything about the merits of the claim."

Summary of this case from Center for Nat. Sec. Studies v. C.I.A

In Switzerland Cheese Association, the Supreme Court affirmed a decision by the Court of Appeals for the First Circuit which held that a district court order denying a motion for summary judgment was not "interlocutory" within the meaning of § 1292(a)(1).

Summary of this case from United States v. RMI Co.

In Switzerland Cheese Ass'n v. E. Horne's Market, 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the Supreme Court stated that "[o]rders that in no way touch on the merits of the claim... are not in our view `interlocutory' within the meaning of § 1292(a)(1)."

Summary of this case from Lewis v. Bloomsburg Mills, Inc.

In Switzerland Cheese the Court held that the denial of a plaintiff's motion for summary judgment seeking injunctive relief was not a denial or refusal of an injunction within § 1292(a)(1) because it did not "settle or even tentatively decide anything about the merits of the claim.

Summary of this case from Abercrombie Fitch Co. v. Hunting World

Setting a case for trial on the merits, or rejection of a motion for summary judgment, would not be viewed an an appealable refusal of interlocutory injunctive relief

Summary of this case from Dellinger v. Mitchell

noting that certification is contrary to the federal policy against piecemeal appeals

Summary of this case from Lisker v. City of Los Angeles

In Switzerland Cheese Association, Inc., v. E. Horne's Market, Inc., 385 U.S. 23, 87 S.Ct. 193, 17 L.Ed.2d 23 (1966), the United States Supreme Court held that an order denying summary judgment in a suit seeking permanent injunctive relief was not ‘ interlocutory’ and therefore not appealable under 28 U.S.C. § 1292(a)(1).

Summary of this case from Rypkema v. Bowers

describing a denial of summary judgment as “strictly a pretrial order that decides only one thing—that the case should go to trial”

Summary of this case from Iacono v. Hicken
Case details for

Switzerland Assn. v. Horne's Market

Case Details

Full title:SWITZERLAND CHEESE ASSOCIATION, INC., ET AL. v . E. HORNE'S MARKET, INC

Court:U.S.

Date published: Nov 7, 1966

Citations

385 U.S. 23 (1966)
87 S. Ct. 193

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