Opinion · Court of Appeals for the Second Circuit
Levine v. American Export Industries, Inc.
Levine v. Am. Export Indus., Inc., 473 F.2d 1008 (2d Cir. 1973)
- Type
- Opinion
- Court
- Court of Appeals for the Second Circuit
- Jurisdiction
- Federal
- Date
- 1973-02-07
- Topic
- litigation
How later courts describe this case
- order granting consolidation was not appealable
- order granting consolidation wasnot appealable
Citator
UpLaw has not yet analyzed Levine v. American Export Industries, Inc.. The absence of a flag is not a finding that it is good law.
- Cited by
- 7 opinions
LEVINE v. AMERICAN EXPORT INDUSTRIES, INC.,473 F.2d 1008(2nd Cir. 1973)
IRWIN LEVINE ET AL., PLAINTIFFS, v. AMERICAN EXPORT INDUSTRIES, INC., ET
AL., DEFENDANTS.
MARTIN ZUCKERMAN ET AL., PLAINTIFFS, v. AMERICAN EXPORT INDUSTRIES, INC., ET
AL., DEFENDANTS.
FREDERICK H. BROOKS ET AL., PLAINTIFFS, v. RALPH R. WEISER ET AL.,
DEFENDANTS. HARRY LEWIS, PLAINTIFF, v. JOHN M. WILL ET AL., DEFENDANTS.
IRWIN LEVINE ET AL., PLAINTIFFS-APPELLANTS, v. MARTIN ZUCKERMAN AND PHILIP
ZUCKERMAN, PLAINTIFFS-APPELLEES.
Nos. 254-257, Dockets 72-1822 to 72-1825.
United States Court of Appeals, Second Circuit.
Argued January 2, 1973.
Decided February 7, 1973.
Stephen Lowey, New York City (Lipper, Keeley, Lowey Dannenberg, Richard B. Dannenberg, Landis, Tucker Gellman, P. C., New York City, of counsel), for plaintiffs-appellees.
Before HAYS and MANSFIELD, Circuit Judges, and HOLDEN, Chief Judge.fn*
[2] Absent exceptional circumstances this court lacks jurisdiction to entertain such an interlocutory appeal, see Weight Watchers of Philadelphia v. Weight Watchers Intl.,455 F.2d 770(2d Cir. 1972); Western Geophysical Company of America v. Bolt Associates, Inc.,440 F.2d 765(2d Cir. 1971); West v. Zurhost,425 F.2d 919(2d Cir. 1970); Donlon Industries, Inc. v. Forte,402 F.2d 935(2d Cir. 1968); Miller v. Pleasure,425 F.2d 1205(2d Cir.), cert. denied,400 U.S. 880, 91 S.Ct. 123, 27 L.Ed.2d 117 (1970). No such circumstances are shown to exist. Judge Motley has denied an application pursuant to28 U.S.C. § 1292(b) for a certificate to the effect that the interlocutory order involves a controlling question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal would materially advance the ultimate termination of the litigation. Unlike the order in MacAllister v. Guterma,263 F.2d 65(2d Cir. 1958), no basic issues are raised of the type contemplated by Cohen v. Beneficial Loan Corp.,337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Nor does the order spell the "death knell" of the actions. Caceres v. International Air Transport Association,422 F.2d 141(2d Cir. 1970); City of New York v. International Pipe Ceramics Corp.,410 F.2d 295(2d Cir. 1970). Appellees' motion to dismiss the appeal is therefore granted.
[3] The principal ground raised by appellants is that in view of the possible conflict of interest between the derivative plaintiffs, who sued on behalf of AEI, and the class action plaintiffs, who seek damages from AEI, the district court should have appointed separate general counsel for the two types of actions rather than one general counsel for all. Appellants argue that because of the conflict one general counsel will be unable fully and fairly to prosecute both the class and derivative claims or to negotiate a settlement which might depend upon an allocation of payment as between AEI and the individual defendants.
[4] In the event that a conflict of interest looms upon the horizon, the appointment of separate counsel for each group (class and derivative plaintiffs) may well be advisable. See, e. g., Lewis v. Shaffer Stores Company, 218 F.Supp. 238 (S.D. N.Y. 1963); Ruggiero v. American Bioculture, Inc., 56 F.R.D. 93 (S.D.N.Y. 1972). Judge Ryan, to whom the consolidated cases have been assigned for all purposes, has had extensive experience in such matters. We are confident that he will take whatever action is required.
[5] The appeal is dismissed.Page 1090