Coles v. Marsh

560 F.2d 186, 15 Fair Empl. Prac. Cas. (BNA) 629, 23 Fed. R. Serv. 2d 1257, 1977 U.S. App. LEXIS 12244, 14 Empl. Prac. Dec. (CCH) 7774
CourtCourt of Appeals for the Third Circuit
DecidedJuly 28, 1977
DocketNo. 77-1235
StatusPublished
Cited by55 cases

This text of 560 F.2d 186 (Coles v. Marsh) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coles v. Marsh, 560 F.2d 186, 15 Fair Empl. Prac. Cas. (BNA) 629, 23 Fed. R. Serv. 2d 1257, 1977 U.S. App. LEXIS 12244, 14 Empl. Prac. Dec. (CCH) 7774 (3d Cir. 1977).

Opinion

OPINION OF THE COURT

SEITZ, Chief Judge.

Petitioner is a plaintiff in the district court who brought suit on behalf of herself and others similarly situated against her employer, Blue Cross of Western Pennsylvania, alleging that it was guilty of discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The district judge, at defendant’s request, entered an order on December 17,1976 prohibiting certain communications between plaintiff or her attorney and certain third parties including potential members of the class and civil rights organizations. Plaintiff petitions this court pursuant to 28 U.S.C. § 1651(a) to issue a writ of mandamus directing the district court to vacate the December 17 order among others.1

In Rodgers v. United States Steel Corp., 508 F.2d 152 (3d Cir.), cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975), we invalidated Rule 34(d) of the Local Rules of the District Court for the Western District of Pennsylvania. That rule provides:

(d) No communication concerning such action shall be made in any way by any of the parties thereto, or by their counsel, with any potential or actual class member, who is not a formal party to the action, until such time as an order may be entered by the Court approving the communication.

Rule 34(d) could be applied, and in Rodgers was applied, to regulate communication on the part of a plaintiff seeking class action status or his attorney with third persons including potential members of the class at a time when class status had not been granted. Inquiring whether this rule was within the rulemaking authority granted by Fed.R.Civ.P. 83, we said that “[w]e must take into account that the reason [188]*188urged for applying the prohibition on communication is, in the words of the district court, the prevention of ‘barratry’.” 508 F.2d at 163. We said that “[t]here is no general grant of legislative authority to regulate the practice of law,” and that “[t]here is no federal common law offense of barratry.” Concluding that it would be inconsistent with Fed.R.Civ.P. 23 to prohibit communications designed to encourage common participation in a lawsuit, we held that the Local Rule, at least to the extent that it permitted prohibition of such communication prior to the class determination, was outside of the authority granted under Fed.R.Civ.P. 83.

Since in the instant ease the December 17 order postdated our decision in Rodgers, it was premised not on Local Rule 34(d), which Rodgers abrogated and which has not been amended subsequently, but on the omnibus sentence of Fed.R.Civ.P. 83 which provides that “[i]n all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.” Thus, as in Rodgers, we must consider whether Rule 83 empowers the district court to prohibit communications at a time prior to the class determination.

The substance of the December 17, order is taken verbatim from 1 (pt. 2) J. Moore, Manual For Complex Litigation, Part II-App., Para. 1.41 at 189, Sample Pretrial Order No. 15, prepared by a committee under the aegis of the Federal Judicial Center. The order provides:

ORDERED, that Plaintiff, Alma Coles, and her attorney, Clifford C. Cooper, Esquire, are prohibited directly or indirectly, orally or in writing, from contacting, soliciting or communicating with any potential or actual class member who is not a formal party to this suit, including but not limited to Diane Bey, Lois Broadus, Joyce Lang, Joyce Deas, Marlene Ramsey, Marcia Smith, June Pickett, Judy Harris, Barbara Davis, the local chapter of the NAACP, its officers, members and Board, the Direct Action Coalition, the National Organization of Women (N.O.W.) and Women in Urban Crises, for the purposes of, but not limited to:
a. Solicitation, directly or indirectly, of legal representation of potential and actual class members who are not formal parties to this action;
b. Solicitation of fees and expenses and agreements to pay fees and expenses from potential and actual class members who are not formal parties to the class action;
c. Solicitation by Plaintiff and her counsel to the class action of requests by class members to opt out of class actions under subparagraph (b)(3) of Rule 23, Federal Rules of Civil Procedure; and
d. Communications from counsel or party which may tend to misrepresent the status, purposes and effects of the class action, and of any actual or potential court orders therein, which may create impressions tending without cause, to reflect adversely on any party, any counsel, this court, or the administration of justice.
It is further Ordered that the following activities are not prohibited by this Order:
a. Communications between Plaintiff’s attorney and his client or a prospective client, who has on the initiative of the client or prospective client consulted with, employed or proposed to employ the attorney;
b. Communications occurring in the regular course of business or in the performance of the duties of a public office or agency (such as the Attorney General) which do not have the effect of soliciting representation by counsel or misrepresenting the status, purposes or effect of the action and orders therein; or
c. Any communications protected by any constitutional right.
And further, in the foregoing three instances the person making the communication shall within five days after such communication file with this Court a copy of such communication, if in writing, or an accurate and substantially complete summary of the communication if oral. [189]*189The obligations and prohibitions of this Order are not exclusive. All other ethical and legal obligations are unaffected by this Order.

The justification for this order is that it will ameliorate potential abuses of the class action. The defendant’s motion for the order was based upon plaintiff’s deposition testimony in which she indicated that she had contacted and would continue to contact present or former employees of Blue Cross with the hope of interesting them in participating in the suit. Moreover, plaintiff had contacted the National Association for the Advancement of Colored People and proposed to contact other organizations for the purpose of enlisting their support including financial support to partially defray litigation expenses.

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Bluebook (online)
560 F.2d 186, 15 Fair Empl. Prac. Cas. (BNA) 629, 23 Fed. R. Serv. 2d 1257, 1977 U.S. App. LEXIS 12244, 14 Empl. Prac. Dec. (CCH) 7774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coles-v-marsh-ca3-1977.