421 U.S. 937
95 S.Ct. 1666
44 L.Ed.2d 94
The ALLIGATOR COMPANY, INC.
LA CHEMISE LACOSTE and Jean Patou, Inc.
Supreme Court of the United States
April 21, 1975
Rehearing Denied June 2, 1975.
See 421 U.S. 1006, 95 S.Ct. 2408.
On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.
The petition for a writ of certiorari is denied.
Mr. Justice WHITE, with whom Mr. Justice BLACKMUN and Mr. Justice POWELL join, dissenting.
Respondent La Chemise Lacoste (LCL) initiated this trademark litigation by filing a complaint seeking declaratory and injunctive relief in the Delaware state courts. Petitioner removed it to the District Court under 28 U.S.C. § 1441(a). The District Court denied respondent's motion for a remand under 28 U.S.C. § 1447(c). See 313 F.Supp. 915 (Del.1970). The District Court also denied respondent's motion for a certificate allowing an interlocutory appeal of the removal question under 28 U.S.C. § 1292(b). When the trial court denied its motion for a preliminary injunction, respondent appealed but did not raise the removal issue; and in affirming the denial of the preliminary injunction, the Court of Appeals did not discuss the question. La Chemise Lacoste v. General Mills, Inc., 487 F.2d 312 (CA3 1973).
The District Court then conducted a six-day trial on the merits and concluded that petitioner was entitled to injunctive relief. 374 F.Supp. 52 (1974). Respondent then appealed from the final judgment. This time it also raised the removal question. The Court of Appeals ruled that this appeal represented the first opportunity that LCL had to have the District Court's decision denying remand review. There thus had been no waiver of the removal question, and this Court's decision in Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972), had no application. See 506 F.2d 339 (CA3 1974). The Court of Appeals then reversed the District Court on the removal question and ordered a remand to the state court.
In holding that the refusal to remand a removal case could not be raised on an appeal from a denial of a preliminary injunction, the decision of the Court of Appeals departed from its prior holding in Mayflower Industries v. Thor Corp., 184 F.2d 537, 538 (3 Cir. 1950), cert. denied, 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951), and conflicts with the decisions of other courts of appeals in Beech-Nut, Inc. v. Warner-Lambert Co., 480 F.2d 801 (CA2 1973), and Kysor Industrial Corp. v. Pet, Inc., 459 F.2d 1010, 1011 (CA6), cert. denied, 409 U.S. 980, 93 S.Ct. 314, 34 L.Ed.2d 243 (1972). Furthermore, it would appear that jurisdictional questions should be reviewed at the first available opportunity, and I perceive no good reason for not permitting the removal issue to be raised in connection with an appeal from the denial of a preliminary injunction.* Had that course been followed here, six days of trial and a decision on the merits would not have been wasted. Also, if it were to be held that the appeal on the injunction issue is a suitable occasion for considering the remand question, then Grubbs, supra, should be extended so as to require that the question be raised on such an appeal. Otherwise, wasteful litigation is invited, and the losing party on the merits is given another bite at the apple.
I would grant certiorari in this case to resolve the conflict among the circuits.
Mr. Justice DOUGLAS took no part in the consideration or decision of this petition.
The authorities relied upon by the Court of Appeals—Chicago R. I. & Pac. R. Co. v. Stude, 346 U.S. 574, 578, 74 S.Ct. 290, 98 L.Ed. 317 (1954); Wilkins v. American Export-Isbrandtsen Lines, Inc., 401 F.2d 151 (CA2 1968); C. Wright, Law of Federal Courts § 41 (2d ed. 1970), at 147—support the principle that the denial of a motion for remand alone is not a basis for appeal, but they do not support the lower court's decision that the removal question cannot be raised upon appeal from the denial of an interlocutory injunction. Petitioner's position on that issue is supported by Deckert v. Independence Shares Corp., 311 U.S. 282, 287, 61 S.Ct. 229, 85 L.Ed. 189 (1940), which held that the District Court's denial of motions to dismiss could be reviewed by the 'Court of Appeals upon an appeal from the granting of an interlocutory injunction.