372 F. 2d 441 - Transit Casualty Company v. Atkins

We have for consideration an application for a writ in the nature of prohibition and mandamus1 which seeks to have set aside an order of the District Court issued September 14, 1966 directing: "Plaintiffs shall within ten (10) days hereafter amend their Complaints so as to include as parties Plaintiff all members of the alleged class who have retained counsel for the Plaintiffs to represent them in these two cases."

The facts underlying both of these proceedings are: The complaints were brought by two named parties plaintiff and seek damages against Security Trust Company, not only for themselves, but presumably for the benefit of 24 other insurance companies allegedly similarly situated. The complaints did not state in what way the class members were so numerous that joinder of all was impracticable; nor was it alleged what questions of law or fact were common as between the defendant, Security Trust Company, and all the quasi plaintiffs; nor was it shown how a class action was superior to other available methods for the fair and efficient adjudication of the controversy. Security Trust, in its answers, specifically denied all allegations as to the alleged class claimed to be represented; denied that it was impracticable to bring all of the alleged members of the class before the court; and denied that the two party plaintiffs fairly represented the interests of the entire class. In the course of discovery, after answers were filed, the attorneys for Security communicated by letter with some of the 24 absent members of the alleged class seeking information as to their knowledge of having been named as members. The communications also concerned the taking of discovery depositions. Thereupon, the attorneys for the plaintiffs notified Security's counsel to cease and desist communicating directly or indirectly with the clients represented by them. They filed before the district judge a motion to enjoin and prohibit any such communication, and in that motion charged counsel for defendant with unethical conduct in attempting to communicate directly with the absent members of the class. Presented with a claim by the attorneys for the plaintiffs that the attorney-client relationship existed between them and the non-party class members, and a charge of unethical conduct leveled at counsel for defendant, the Court had the problem of determining the jural relationship of the members of the class, not only to the plaintiffs but to each other, and to the subject matter of the litigation, as well as to the counsel for plaintiffs. In an apparent effort to assemble information to assist him in determining these relationships, the District Judge entered the order of September 14th. Plaintiffs argue that the writs should issue because the order requires the joinder of additional plaintiffs who are residents of the same state as the defendants, and that this will destroy diversity and will divest the federal court of jurisdiction.

Irrespective of the correctness of the order below, it is apparent that this case is not in an appropriate stage for appellate review. The District Court is in the middle of a housekeeping operation. It has not reached a determination of the merits in any respect, and the order here sought to be reviewed does not define the rights of any party. It is not clear what the precise effect of the order will be on the outcome of the litigation, nor what subsequent steps the court will take. Only the subsequent decree, either dismissing the case or permitting them to proceed as a class action, will define their rights. Subject to well defined and enumerated statutory exceptions,2 appellate review is allowed only from final judgments.3 This is an accepted and sensible policy and cannot be nullified by resorting to the "All Writs" section of the Judicial Code, 28 U.S.C.A. § 1651, except under "extraordinary" circumstances which are not present here. Evans Electrical Const. Co. v. McManus, (8th Cir., 1964), 338 F.2d 952; General Houses, Inc. v. Bruchhausen, (2nd Cir., 1958), 256 F.2d 674. Without in any manner, then, undertaking to determine whether the order complained of was correctly or incorrectly entered, but fully reserving our decision upon it when that question is properly before us, we deny the relief prayed for and dismiss the petitions.