Jorgensen Bros. v. Commerce-Pacific, Inc.

294 F.2d 768, 4 Fed. R. Serv. 2d 876, 1961 U.S. App. LEXIS 3947

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 10, 1961
• Docket: 17014_1
• Status: Published

Opinions

PER CURIAM.

The appeal is dismissed without prejudice.

The basic claim of Denison-Johnson, Inc., as plaintiff against Jorgensen Bros, and others, presumably is still pending in the district court. The Jorgensens’ counterclaim against Commerce-Pacific and the plaintiff Denison-Johnson has been dismissed as to Commerce-Pacific on the ground of improper venue. (The pleading so far as it concerns Commerce-Pacific would be more properly denominated a cross-claim. Likewise, Commerce-Pacific should be considered a third party defendant.)

No order under § 54(b), Federal Rules of Civil Procedure, 28 U.S.C., has been entered. And our case of Steiner v. Twentieth Century Fox Film Corporation, 9 Cir., 220 F.2d 105, would negate the propriety of such an order here.

Appellant can claim no right for a permissive interlocutory appeal, if such were appropriate, because the necessary orders of the district court and this court are absent, 28 U.S.C. 1292(b).

But appellant claims a right to be here under the collateral order doctrine and because the “counterclaim” had a prayer for a temporary and for a permanent injunction. 28 U.S.C. 1292(a).

In our view, Baltimore Contractors, Inc., v. Bodinger, 348 U.S. 176, 75 S.Ct. 249, 99 L.Ed. 233, is applicable here. Although there is a difference in the facts, the principles there restated seem to apply.

CHAMBERS, Circuit Judge, and BOWEN, District Judge, concur in the foregoing per curiam.