Weisman v. MCA Inc.

45 F.R.D. 530, 1968 U.S. Dist. LEXIS 12769

• Court: District Court, D. Delaware
• Decided: November 4, 1968
• Docket: Civ. A. No. 3221
• Status: Published

Opinion

MEMORANDUM OPINION

WRIGHT, Chief Judge.

On October 4, 1968, this Court granted plaintiffs’ motion to permit this action to proceed as a class action under Federal Rule 23. D.C., 45 F.R.D. 258. No formal order having been entered, defendants MCA INC. and UNIVERSAL CITY STUDIOS, INC. now move the Court for entry of an order appropriately worded so as to permit an interlocutory appeal of the Court’s decision under 28 U.S.C. § 1292(b). Defendants also seek a stay of the Court’s decision pending final disposition of the § 1292(b) appeal.

28 U.S.C. § 1292(b) reads as follows: “When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such an order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order * *

After a careful review of the decision in this case, the Court is of the opinion that the questions of law involved here are not ones as to which there is “substantial ground for difference of opinion.” The facts of this case, as summarized in the Court’s October 4th opinion, indicate clearly that plaintiffs have met the requirements of Rule 23. And several recent Court of Appeals decisions substantiate the Court’s conclusion, see Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968); Hohmann v. Packard Instrument Co., Inc., 399 F.2d 711 (7th Cir.1968) ; and Eisen v. Carlisle & Jacquelin, 391 F.2d 555 (2d Cir. 1968). While this Circuit has not yet decided any of the questions presented here,¹ this Court cannot accept defendants’ argument that there is a conflict among District Courts in this Circuit over the proper interpretation of Rule 23. The only decision which defendants call to the Court’s attention to support their argument is School District of Philadelphia v. Harper & Row Publishers, Inc., 267 F.Supp. 1001 (E.D.Pa. 1967). However, Harper & Row only considered one of the questions before the Court in this case and on that one question, the facts are clearly distinguishable. Accordingly, there appears to be no conflict in the holdings of the two cases.

Defendants’ motion denied. Submit order in accordance herewith.

1 . Knuth v. Erie-Crawford Dairy Coop., 395 F.2d 420 (3d Cir. 1968) is not, as plaintiffs contend, a decision on the questions involved here.