Franklin Savings Bank v. Levy

64 F.R.D. 731, 1974 U.S. Dist. LEXIS 6127

• Court: District Court, S.D. New York
• Decided: October 24, 1974
• Docket: No. 71 Civ. 882
• Status: Published

Opinion

MEMORANDUM

EDELSTEIN, Chief Judge.

After consideration of the interests of the parties and the calendar of this court, the court has decided to proceed with a trial in this case as soon as the schedule permits. In reaching this decision, the court has very carefully considered the opinion of the Second Circuit in Goldman, Sachs & Co. et al. v. Edelstein, 494 F.2d 76 (2d Cir. 1974), which instructed this court to proceed with the jury trial in Welch Foods, Inc., et al. v. Goldman, Sachs & Co. (70 Civ. 4811) (hereinafter Welch) either prior to or in consolidation with the non-jury trial in this case. Since this court does not desire either to reject or ignore a directive from the Court of Appeals, I have studied the opinion of the Circuit Court in an effort to ascertain the extent of its prohibitions. I have concluded that, in view of the recent termination of the trial in Welch, a determination by this court to proceed with a trial in this case would serve the best interests of the parties and the court without violating the terms of the Second Circuit opinion.

To construe the Circuit opinion in such a manner as to foreclose the right of the parties in this case to a speedy resolution of the issues until all other related cases which call for trial by a jury—of which there are many—have begun and concluded would do violence to reason and justice. Such a construction would result in a further and prolonged delay of the trial of this action despite the conclusion of the trial in Welch. This could not have been the intention of the Second Circuit.

Accordingly, the trial in this case will commence on December 2, 1974. It is so ordered.