456 F2d 1046 Ward v. Pennsylvania New York Central Transportation Co

456 F.2d 1046

Raymond T. WARD, Plaintiff-Appellant,
v.
PENNSYLVANIA NEW YORK CENTRAL TRANSPORTATION CO., et al.,
Defendants-Appellees.

No. 468, Docket 71-2028.

United States Court of Appeals,
Second Circuit.

Argued Feb. 15, 1972.
Decided Feb. 28, 1972.

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1

Raymond T. Ward, pro se.

2

Emile Z. Berman, A. Harold Frost and Sheila L. Birnbaum, New York City (John R. Urban, New York City, of counsel), for Carroll & Trapani.

3

Before FEINBERG and TIMBERS, Circuit Judges, and THOMSEN, District Judge.*

THOMSEN, District Judge:

4

Plaintiff (Ward) appeals from two orders of the District Court for the Southern District of New York in an action which he filed on November 13, 1970, in a state court against eighteen defendants, and which was removed to the Southern District by six of the defendants-Judges Levet and Wyatt of that district, Judges Lumbard, Hays, and Anderson of this court and a former United States Attorney (the federal defendants).

5

The action arises out of a series of controversies between Ward and the defendant railroad which began in 1953. In 1960 Ward filed an unsuccessful action in the Southern District against the railroad (60 Civ. 4949). Thereafter he filed four other unsuccessful actions1 in the Southern District against the railroad and four other defendants in the present case, namely, the union, Carroll, Trapani and Dr. Daly. In the last two of those actions, 68 Civ. 1094 and 68 Civ. 1686, Judge Wyatt granted summary judgment for the defendants therein and ordered Ward not to "commence any further actions in this Court against [the defendants] * * * on account of any matter or thing set forth in the complaint in this action." That order was affirmed by this court (Docket Nos. 33256 and 33257, May 1, 1969); the Supreme Court of the United States denied certiorari; and by order dated May 18, 1970, in 68 Civ. 1094, Judge Wyatt reaffirmed his prior order and instructed the clerk of the court to notify plaintiff "that if there are any further attempts by him to submit such documents for filing, citation to him for contempt of court will issue."

6

To avoid Judge Wyatt's order Ward filed this action in a state court, joining as defendants the railroad, some of its employees, the union, some individuals connected with it, Dr. Daly, Carroll & Trapani, and the federal defendants referred to above. After removal to the Southern District, all defendants filed motions to dismiss on various grounds.

7

All of those motions were granted, and in each order dismissing one or more of the defendants the district judge who entered the order included a provision enjoining Ward from instituting any further actions against such defendants in any court in the United States on any matter set forth in the complaint in 70 Civ. 5514.

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8

On October 19, 1971, Ward filed a notice of appeal "from the orders of U. S. District Judges Gurfein and McLean opinion June 24, 1971, September 22, 1971, entered herein * * *."2

9

We have considered the record, the memoranda and the other documents filed in this court by Ward, and have concluded that the judgment orders entered by the district court were proper. The provisions in those orders which restrain Ward from instituting any further action or actions against the defendants or any of them in any court in the United States based on any matter set forth in the complaint in the case which became 70 Civ. 5514 in the district court were justified under the "All Writs Statute", 28 U.S.C.A. Sec. 1651(a), because those provisions were necessary to protect and effectuate the judgments of the Southern District referred to above. The appeal from the orders of Judge Gurfein, 328 F.Supp. 1245, was not timely, and is dismissed. The appeal from the order of Judge McLean was timely; that order is affirmed.

*

Of the District of Maryland, sitting by designation

1

67 Civ. 1970, 67 Civ. 2597, 68 Civ. 1094 and 68 Civ. 1686

2

The order of Judge Gurfein dismissing the complaint as against the union defendants was entered on July 20, 1971; his order dismissing the complaint as against the railroad defendants was entered on August 18, 1971; Judge McLean's order dismissing the complaint as against Carroll & Trapani was entered October 13, 1971. No appeal was taken from the orders of Judge Sugarman, both of which were entered in June 1971