Petition — Leeward Petroleum, Ltd. v. Mene Grande Oil Co.

Supreme Court brief1980

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MICHAEL RUULAK, ik., CLERR |

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

A ee

LEEWARD PETROLEUM, LTD.,

A Bermuda Corporation,

Petitioner

Vv.

MENE GRANDE OIL COMPANY,

A Delaware Corporation, and

GULF OIL CORPORATION

A Pennsylvania Corporation,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

ee THOMAS S. LODGE

Srnnnaae Rivcon DIN CONNOLLY, BOVE & LODGE

VICKERY & WILLIAMS 1800 Farmers Bank Building

Suite 3710 Wilmington, Delaware 19899

_ (302) 658-9141

One Shell Plaza

Houston, Texas 77002 Attorneys for Petitioner

(713) 224-8380 Leeward Petroleum, Lid.

January 10, 1980

i a a ee

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

Reasons for Granting the Writ .....iic...cccscccceees

I. Conflict with the Express Federal Policy of Section

1292(a)(1) of the Judicial Code ..................

II. Conflicts with Decisions of this Court and the Courts

ET CEE ECCKGS 5 ba cwkKen saedeienw nbedcbboed

III. Conflicts with Decisions in the Courts of Appeal Hold-

ing that Orders Disposing of a Motion to Stay and

a Motion to Enjoin Proceedings in Other Courts are

Appealable as One Related Venue Question .........

ES A Re ie a ee PeaGUCaG ad 6 Wwan weedews

Appendix A

Defendants’ motion to dismiss or stay ........ ickde aes

Appendix B °

Leeward’s motion to enjoin Meneg from proceeding in

calle asp aadabeadeeseess

Appendix C

May 15, 1979 order of Delaware District Court .......

Appendix D

Transcript of May 15, 1979 hearing before Delaware

eee heen a oe bGk os 06044500 06.

Appendix E

Leeward’s notice of appeal from Delaware District Court

OE eis esis ccseeccccvencesene

Appendix F

Defendants’ motion to dismiss appeal for lack of subject-

cos soc suc vit cceceuecee

Appendix G

Order of Third Circuit Court of Appeals denying subject-.

eee eh ble eke oéh 00s ean vase aes

LIST OF AUTHORITIES

CASES Page

Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176

SEE CcckawWtaks Saas CAN Rawk s bt enews Aeeae 8 eta 8,9, 12,13

Canadian Filters (Harwich) Ltd. v. Lear-Siegler, Inc., 412

* 2, Bi ke | Seer re rarer ry Tree 12

Carter v. American Telephone & Telegraph Co., 365 F.2d

486 (Sth Cir. 1966), cert. denied, 385 U.S. 1008 (1967) 16

Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735 (1st

Cir.), cert. denied, 434 U.S. 860 (1977) ......ceeeees 12,15

Cohen v. Beneficial industrial Loan Corporation, 337 U.S.

Re re are roe eee reer ery. 14

Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ...... 14

Cotler v. Inter-County Orthopaedic Association, P.A., 526

of me Se he SS Pry ree Tree 12

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1972) ...... 8

Enelow v. New York Life Insurance Co., 293 U.S. 379

SE Ce CReL Miche seme s Uae cb WkaN de dbs aad be nes. 13

Ephrian Freightways, Inc. v. Red Ball Motor Freight, Inc.,

SO Pe ee NOE ly OED cicacenetuscscuccccctes 12

Ettelson v. Metropolitan Life Insurance Co., 317 U.S. 188

RR Rea Ss GS ROE ee iy neh eae 13

Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478

RRS OR A AR UREN» Sago OE ny et 12

Kerotest Manufacturing Co. v. C-O-Two Fire Equipment

Co., 342 U.S. 180 (1952), aff’'g, 189 F.2d 31 (3d Cir.

SOUEP. an euee Vato pare bar eveciensees i Viaeweae es es 12

Landis v. North American Co., 299 U.S. 248 (1936) ..... 13

Maryland v. Atlantic Aviation Corp., 361 F.2d 873 (3d

Cir. 1966), cert. denied, 385 U.S. 931 (1967) ......... 12

Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086

EE cas doe G wens nd eure eaaw eave acer eees 15

Rogers v. United States Steel Corp., 541 F.2d 365 (3d

enc ris rea arctica, elie ts 12

Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197

PSE cates bu cehvececateesscaeakbeael san 5,14, 15

Stateside Machinery Co. v. Alperin, 526 F.2d 480 (3d Cir.

SUUUE Reet Acie ha en bea e k 64s vee Ua us hak s eran xs 31,32

Switzerland Cheese Association, Inc. v. E. Horne’s Market,

ns Ee WI BE CEOONE wad cscceccasschenseounvecete 11

Wallace v. Norman Industries, Inc., 467 F.2d 824 (Sth

a SE Shan v Aad Uae eaen Gee ce kns ebaxMhenenends 12

Warshawsky & Co. v. Arcata National Corp., 552 F.2d 1257

SR: UNE CV eb Gees yuan $40 64 ou0d 608 CNS OKa ORO 12

III

UNITED STATES STATUTES

The Judiciary Act of 1789, 1 Star. 73 (1789) ..........

ee es ee res 5 o's ss 0a vey 5 wo a:b. 6 ¥.0.a'ac¥s

MISCELLANEOUS

9 Moore’s Feperat Practice § 110.2[1] (2d ed. 1975) ..

Wright & Miller, Feperat Practice & Procepure: Juris-

diction § 3923-24 (Ist ed. 1973) ...cccccccccccccccs

Supreme Court of the United States

OCTOBER TERM, 1979

PUG Fi ittecsanninabocts

LEEWARD PETROLEUM, LTD.,

A Bermuda Corporation,

Petitioner

MENE GRANDE OIL COMPANY,

A Delaware Corporation, and

GULF OIL CORPORATION

A Pennsylvania Corporation,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Petitioners pray that a Writ of Certiorari issue to

review the Third Circuit Court of Appeals’ dismissal of

the petitioner’s appeal from the May 15, 1979 order of

the United States District Court of Delaware.

OPINIONS ENTERED BELOW

On May 25, 1976, an opinion was entered in this

cause by the Delaware District Court denying the defend-

ants, Gulf Oil Corporation’s and Mene Grande Oil Com-

pany’s, 12(b)(6) motion to dismiss. Leeward Petroleum,

Ltd. v. Mene Grande Oil Co., 415 F. Supp. 158 (D. Del.

1976). This decision was not appealed to the Court of

Appeals for the Third Circuit, and thus is not in issue

herein on petitioner’s request for certiorari.

On May 15, 1979, an order (Appendix C, infra at 24)

was entered by the Delaware District Court denying

Leeward Petroleum’s motion to enjoin the defendants from

prosecuting a duplicitous action in Venezuela. This order

also granted the defendant’s motion to stay the Delaware

proceedings and declined a motion for summary judgment

as to the antitrust claims of Leeward. After instituting an

appeal from the injunctive and stay portions of this order,

an order issued in lieu of a formal mandate—to be

treated in all respects as a mandate—was rendered by

the Court of Appeals for the Third Circuit denying ap-

pellate jurisdiction (Appendix G, infra at 37). It is the

propriety of this order denying appellate jurisdiction,

when considered in light of the Delaware District Court’s

order, that is in issue herein.

JURISDICTION

The dismissal of the appeal by the Court of Appeals

for the Third Circuit was rendered on October 15, 1979.

The jurisdiction of this Court is invoked under 28

U.S.C.A. § 1254(1).

QUESTION PRESENTED

Whether a circuit court of appeals may, in direct

derogation of a U.S. statute, summarily dismiss as non-

appealable under § 1292(a) of the Judicial Code an

order which, on its face, declines to enjoin duplicitous

and concurrent litigation in a foreign forum and which

also temporarily stays a first-filed action in a domestic

forum.

STATUTE INVOLVED

The relevant portion of the Judiciary Code is as follows:

§ 1292. Interlocutory Decisions.

(a) The Courts of Appeal shall have jurisdiction of

appeals from;

(1) Interlocutory Orders of the District Court of the

United States, the United States District Court

for the District of the Canal Zone, the District

Court of Guam and the District Court of the

Virgin Islands, or the judges thereof, granting,

continuing, modifying, refusing or dissolving in-

junctions, or refusing to dissolve or modify in-

junctions, except where a direct review may be

had in the Supreme Court. . . . (Italics added).

STATEMENT OF THE CASE

This case presents a breach of contract action instituted

initially in the Delaware District Court by the Plaintiff,

Leeward Petroleum, Ltd. (Leeward). The merits of this

cause have never been reached, as one of the Defendants,

Mene Grande Oil Corporation (Meneg), by filing a

declaratory judgment action in Venezuela (currently still

pending), forced Leeward into a procedural revolving-

door requiring it to prosecute the same cause of action

in two forums. Although a detailed analysis of the various

proceedings and motions leading up to the requested writ

would be unduly burdensome, it is essential that mention

be made here of the various motions pertinent to this

petition.

On August 18, 1975, Leeward filed its original com-

plaint in Wilmington, Delaware, against the defendants,

Gulf Oil Corporation and Mene Grande Oil Corporation.

The defendants countered with a 12(b)(6) motion to dis-

miss and a motion to dismiss or stay on forum non conven-

iens grounds (Appendix A, infra at 18). After an opinion

was entered on May 25, 1976, denying Gulf’s and Meneg’s

12(b)(6) motion, Leeward Petroleum, Ltd. v. Mene

Grande Oil Co., 415 F. Supp. 158 (D. Del. 1976), all

parties began extensive discovery and numerous deposi-

tions were taken in preparation for trial in Delaware.

These depositions culminated in the production of hun-

dreds of documents and over 1,000 pages of testimony.

Yet, instead of bringing the motions on for hearing or

filing papers in support thereof, both Gulf and Meneg

chose to utilize the processes of the U.S. Court to their

advantage. Pursuant to a meeting with the Delaware

District Court on September 6, 1977, after discovery

was nearing completion, Gulf and Meneg were advised

to file their memorandum in support of their motion to

stay and/or dismiss. Not until November 17, 1978, some

two and one-half years after an opinion was rendered

in the 12(b)(6) hearing, were the supporting papers

finally filed by respondents.

Almost simultaneously, Meneg filed a declaratory judg-

ment action in Venezuela on the contract issues before

the Delaware District Court. This was almost three years

aiter the filing of Leeward’s complaint in Delaware. The

Venezuelan action sought a declaratory judgment as to

two “threshold issues” which were being prepared for

trial and which were embodied in Count I of Leeward’s

Complaint filed earlier in Delaware. These threshold issues

dealt with whether or not Venezuelan governmental ap-

proval was required as a matter of Venezuelan law to

complete the contract which was made the underlying

basis of this suit. If approval was required, a second

question posed to the Venezuelan court was the factual

one of whether or not their governmental authorities had

disapproved of the transaction. Both of these matters

were subjects of ihe prior Delaware action and were near

to resolution and/or were simple matters of proof of

foreign law. Meanwhile, petitioner, being placed in the

type of quandry Judge Friendly recognized in Semmes

Motors, Inc. v. Ford Motor Co., 429 F.2d 1197 (2d Cir.

1970),* attempted to fight the Venezuelan action by pleas

of lis pendens. The Venezuelan action is presently on

appeal in their courts.

Due to the duplication of costs and effort in prosecut-

ing a cause of action in two different fora, and mindful

of its right to choose its own forum for the trial of its

lawsuit, Leeward filed a motion to enjoin the Venezuelan

Declaratory Judgment Action (Appendix B, infra at 22).

Finally, in an order dated May 15, 1979 (Appendix C,

1. Judge Friendly noted:

When they see a storm brewing in the first court, they may try

to weigh anchor and set sail for the hopefully more favorable

waters of another district. . . . [The Plaintiff in the first suit]

is then put to the Hobson’s choice of either going along with

this ploy by agreeing to dismissal of the first action if the

Plaintiff [in the second suit] is willing, or having to defend two

lawsuits at the same. If he makes the latter election, as is

his right, not only the parties but the courts pay a heavy price.

422 F.2d 1197, 1203.

infra at 24), Leeward’s motion to enjoin was denied

without prejudice and Meneg’s motion to stay the Dela-

ware proceeding was granted. Thereafter, Leeward moved

pursuant to § 1292(b) of the Judiciary Code for certifica-

tion to the court of appeals of that portion of the district

court’s order relating to the stay of the Delaware pro-

ceedings. This motion was denied in oral hearing on the

district court judge’s assumption that certification at that

point would delay Leeward’s right of appeal pursuant to

§ 1292(a)(1) on the denial of the injunction by the

Delaware court (Appendix D, infra at 27).

A timely appeal ensued (Appendix E, infra at 32),

which was countered by Meneg’s and Gulf’s motion to

dismiss on the grounds that the court of appeals lacked

subject-matter jurisdiction (Appendix F, infra at 34). In

an order dated October 15, 1979, the Court of Appeals

for the Third Circuit granted Meneg’s and Gulf’s motion

to dismiss on the grounds that jurisdiction was lacking

(Appendix G, infra at 37). Because the court of appeals’

dismissal for lack of jurisdiction conflicts with the specific

statutory mandate of § 1292(a)(1) of the Judiciary Code

and the unanimous case law construing it, petitioner urges

this court to issue a Writ of Certiorari and reverse the

decision of the court of appeals denying subject-matter

jurisdiction.

REASONS FOR GRANTING THE WRIT

In its decree issued below, the Court of Appeals for

the Third Circuit dismissed the petitioner’s appeal from

the district court’s order, and therefore foreclosed all

review entirely. In so doing, the decision is in conflict

with:

(a) The express federal policy of § 1292(a)(1) of

the Judiciary Code which gives courts of appeals

jurisdiction over “[iJ]nterlocutory orders of the

District Courts of the United States . . . refusing

. . . injunctions. . . .” 28 U.S.C. § 1292(a)(1)

(1979).

(b) The case law in this Court and the courts of

appeal which, consistent with the specific man-

date of § 1292(a)(1), has long and unanimously

held that the grant or denial of a motion to enjoin

duplicitous litigation in a foreign forum is appeal-

able pursuant to § 28 U.S.C. § 1292(a)(1).

have recognized that when duplication of litiga-

tion is present, a motion to stay, when countered

with a motion to enjoin, should be considered as

one appealable venue question pursuant to 28

US.C. § 1292(a)(1).

These conflicts pertain to the most important question

of the statutory jurisdiction of the courts of appeal under

28 U.S.C. § 1292(a)(1) and require prompt and au-

thoritative resolution by this Court. The dismissal of the

petitioner’s appeal by the court of appeals does violence

to the congressional concern to allow specially excepted

appeals from orders other than final judgments when they

have a final and irreparable effect on the rights of litigants.

It is a serious matter for a court to take the position of

refusing all jurisdiction to a litigant with an unadjudi-

cated cause quite within the cowii’s statutory authority.

Jurisdiction to litigate is not something to be withheld

or granted by a court at its wish or convenience. There

is obviously a growing tendency in the congested courts

of appeal to look for excuses to push a case off the docket,

and even though sympathy might be had for the difficult

situation facing over-worked judges, this is not a per-

missible course or one fair to litigants.

I. Conflict with the Express Federal Policy of

Section 1292(a)(1) of the Judicial Code.

In the federal courts, appeals from interlocutory orders

have been prohibited, with certain statutory exceptions,

since the initial formulation of the “final judgment rule”

in the Judiciary Act of 1789. 1 Stat. 73 (1789). This

finality requirement, now embodied in section 1291,

evinces a legislative judgment that “[rJestricting appellate

review to ‘final decisions’ prevents the debilitating effect

on judicial administration caused by piecemeal appellate

disposition of what is, in practical consequence, but a

single controversy.” Eisen v. Carlisle & Jacquelin, 417

U.S. 156, 170 (1972). Section 1292(a)(1) of the Ju-

dicial Code provides for an exception to the ordinary rule

and allows appealability of all orders entered by district

courts denying injunctions. 28 U.S.C. § 1292(a)(1)

(1979). This section of the Judicial Code was enacted

to permit litigants effectively to challenge interlocutory

orders of “serious, perhaps irreparable consequence”.

Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176,

181 (1955). The statute itself is the embodiment of a

desire to balance the practicability of savings in time and

expense with the need to give proper weight to aggrieved

litigants.

On numerous occasions, it has been recognized that the

efforts which culminated in the decision to enact § 1292

(a)(1) in its present form were of the legislative variety,

as it was Congress which was thought to stand in the

best position of weighing the relevant competing interests.

Recognizing this fact, this Court has guarded against the

expansion or contraction of the statute:

This Court, however, is not authorized to approve

or declare judicial modification. It is a responsibility

of all courts to see that no unauthorized extension

or reduction of jurisdiction, direct or indirect, oc-

curs in the federal system. Any such ad hoc deci-

sions disorganize practice by encouraging attempts

to secure or oppose appeals with a consequent waste

of time and money.

Baltimore Contractors, supra, at 181-182 [citation omitted].

The record presented to the court of appeals in no

way places in dispute the appealibility of the Delaware

District Court ruling. The order provides, on its face,

the following:

ORDERED As Follows:

1. The Motion of Leeward to enjoin Meneg from pro-

ceeding in the Venezuelan action is denied without

prejudice.

2. The Motion of Meneg and Gulf to Stay this action

is granted (Appendix C, infra at 25).

It seems incongruous that the court of appeals could

have found anything in the record which would detract

from the appealability of the court’s order. Indeed, it

was the lower court’s presumption of appealability that

formed the basis for the denial of the petitioner’s request

for certification of the stay, as it assumed that certification

would delay an appeal regarding the injunction:

THE COURT: But to make it formal I now

formally rule that the injunction which is requested

by the Plaintiff in this case is denied.

The Motion for Certification in my opinion is

not warranted by this Court for two reasons, the

main one being that I do not think that it is a proper

matter to be certified. It is discretionary. I think

I exercised my discretion and I don’t think it would

be looked upon favorably by the Circuit Court of

Appeals. The second thing in my mind is that if you,

the Plaintiff, decide to take this matter to the Circuit

Court of Appeals on the denial by me of the in-

junctive relief which you request—

MR. VEASEY: That is, the Plaintiff requested.

THE COURT: Yes.—That would mean possible

delay by granting the certification. There might be

some delay in getting to what I consider to be the

issue which you are anxious to have decided, namely,

whether or not I should enjoin the Defendant in this

case from proceeding in Venezuela. And these are

the reasons that I am denying the Motion for Certi-

fication.

As far as the injunctive relief and my reasons for

acting as I lL. ve with respect to these two motions,

I think that is pretty well documented in the pro-

ceedings before the Court in the Court’s statements

on May 11, the day of the hearing. Does that cover

it?

2. The motion for certification of that portion of the lower court’s

order dealing with the stay of the Delaware action was denied in an

oral hearing on May 15, 1979. The above-quoted excerpt is taken

from this oral hearing. It was during this hearing on May 15, 1979,

that the district court judge announced his opinion concerning the

injunctive and stay motions before the court. The transcript of this

hearing is presented to this Court in Appendix D, infra at 27, 29-30.

It is ironic that a presumption of appealability below

actually had the effect of torpedoing all effective review

of an unquestionably appealable order. It is clearly not

within the province of the court of appeals to ignore

this record, and to invent its own rationale for the dis-

position of the injunction below.

It is one thing to be reminded that the grant or denial

of a temporary injunction lies within the trial court’s

discretion and that it can be set aside only if an abuse of

discretion can be shown. While these statements may have

their proper place somewhere down the line in this litiga-

tion, it is quite another thing to deny jurisdiction to a

litigant altogether. Section 1292(a) establishes the appeal-

ability of orders such as that presented herein. Accord-

ingly, the petition should be granted to resolve the con-

flicts between the federal policy, statutes, and case law

underlining the statute and the erroneous decision of

the court of appeals below.

II. Conficts with Decisions of this Court and the

Courts of Appeal

In speaking of section 1292(a), it has been stated that

the statute must be approached gingerly, “lest a floodgate

be opened that brings into the exception many pretrial

orders.” Switzerland Cheese Association, Inc. v. E. Horne’s

Market, Inc., 385 U.S. 23, 24 (1966). Accordingly, this

Court and the courts of appeal have grappled with the

proper scope of the term “injunction” under the statute.

Recognizing that the “literal characterization of an order

as an injunction only begins the inquiry into appeal-

ability”, Stateside Machinery Co. v. Alperin, 526 F.2d

480, 482 (3d Cir. 1975), the courts have denied status

under 1292(a)(1) where appropriate. Gardner v. West-

inghouse Broadcasting Co., 437 U.S. 478, 481-82 (1978);

Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176,

182-84 (1955); Morgantown v. Royal Insurance Co.,

337 U.S. 254, 258 (1949).* But whatever interpretational

problems this statute has spawned, this Court, and the

courts of appeal, have uniformly recognized that orders

respecting injunctions against the commencement or prose-

cution of litigation in other courts are appealable under

§ 1292(a). Kerotest Manufacturing Co. v. C-O-Two Fire

Equipment Co., 342 U.S. 180, 183 (1952), aff’g, 189

F.2d 31 (3d Cir. 1951); Warshawsky & Co. v. Arcata

National Corporation, 552 F.2d 1257, 1258 (7th Cir.

1977); National Equipment Rental, Ltd. v. Fowler, 287

F.2d 43, 45 (2d Cir. 1961).* Indeed, so obvious was

this fact that the court in Alperin, supra, noted such

cases to be “classic form[s] of injunctive relief [within

the meaning of § 1292(a)].”Alperin, supra, 526 F.2d

at 483. The order issued by the Court of Appeals for the

3. See, e.g., Rogers v. United States Steel Corporation, 541 F.2d 365

(3d Cir. 1976) (denial of class action status held not appealable

as an injunction under § 1292(a)(1)); Stateside Machinery Co. v.

Alperin, 526 F.2d 480 (3d Cir. 1975) (denial of motion to stay

arbitration held not appealable pursuant to § 1292(a)(1)); Cotler

v. Inter-County Orthopaedic Association, P.A., 526 F.2d 537, 541

(3d Cir. 1975) (motion to stay held not appealable). See Wallace

v. Norman Industries, Inc., 467 F.2d 824, 826 (Sth Cir. 1972);

Ephrian Freightways, Inc. v. Red Ball Motor Freight, Inc., 376 F.2d

40, 41 (10th Cir. 1967).

4. See, e.g., Codex Corp. v. Milgo Electronic Corp., 553 F.2d 735

(Ist Cir.), cert. denied, 434 U.S. 860 (1977); Canadian Filters

(Harwich) Ltd. v. Lear-Siegler, Inc., 412 F.2d 577 (1st Cir. 1969) ;

Maryland v. Atlantic Aviation Corp., 361 F.2d 873 (3d Cir. 1966),

cert. denied, 385 U.S. 931 (1967); 9 Moore’s FEepERAL PRACTICE

§ 110.2[1] at 235 (2d ed. 1975); 16 Wright & Miller, FEDERAL

Practice & PRocepurReE: Jurisdiction § 3924 at 67 (1st ed. 1973).

Third Circuit stands in stark, solitary conflict with these

authorities.

By way of contrast, the courts have distinguished

ordinary stays which merely regulate a court’s docket

from injunctive orders, which temporarily or permanently

halt proceedings in other fora. Compare Landis v. North

American Co., 299 U.S. 248 (1936).° Because such

orders were not thought to pose serious, perhaps irrep-

arable consequences to litigants, but were in fact mere

instances of docket regulation, injunctive status was

denied. But these cases throw no light at all upon why

there should have been such judicial abnegation as en-

countered below, as “mere regulation of the docket” can-

not characterize the relief sought by Leeward in the

Delaware District Court. Recognizing the difference be-

tween mere docket regulation and relief such as that

sought by Leeward, this Court has noted that “[t]he

point was made in the Enelow Case that power to stay

mere steps within the framework of the litigation before

a court differs as to appealability from an injunction

prohibiting proceedings in another court.” Baltimore Con-

tractors, supra, at 183.°

5. In fact, it was the ordinary stay, as opposed to the injunction,

that presented problems of construction. See Baltimore Contractors

v. Bodinger, 348 U.S. 176, 182 (1955), where this Court noted:

“The appealability of routine interlocutory injunctive orders raised

few questions. There the statute was clear. I was when stays of

proceedings, in distinction to injunctions, were appealed that the

issue of jurisdiction became sharp.” /d. [citation omitted].

6. Enelow v. New York Life Insurance Co., 293 U.S. 379 (1935),

dealt with the appealability of a stay order pursuant to section 129

of the Judicial Code, which was the predecessor of section 1292(a).

Further interpretation of the Enelow-Ettelsen rule, which rests on the

distinction between “legal” and “equitable” claims, is not in issue

herein. See generally Ettelson v. Metropolitan Life Insurance Co.,

317 U.S. 188 (1942). The Enelow decision did, however, note the

In speaking of section 1292, this Court has said, “[{the

Statute] allows appeals also from certain interlocutory

orders, decrees and judgments, . . . [and it] indicate[s]

the purpose to allow appeals from orders other than final

judgments when they have a final and irreparable effect

on the rights of the parties.” Cohen v. Beneficial Industrial

Loan Corporation, 337 U.S. 541, 545 (1949). The order

entered by the Delaware District Court meets these re-

quirements. This much must be conceded, as a refusal

to enjoin the Declaratory Judgment Action in Venezuela

is not conditional, nor can it be effectively subject to

alteration or amendment prior to final judgment in Vene-

zuela.’ Moreover, although perhaps reviewable after judg-

ment on the merits, reviewability after judgment serves

no protection against the relief sought as the duplication

of effort and waste of judicial time and litigants’ money

is precisely the evil the injunctive relief in such circum-

stances seeks to avoid.* Accordingly, the decision of the

court of appeals below denying subject-matter jurisdiction

directly conflicts with decisions in this Court and in the

distinction between ordinary stays of a court’s own proceedings which

may issue “to control the progress of the cause” and the power to

interfere with proceedings in another court, which should be deemed

a “grant or refusal of an injunction within the meaning of § 129

[now § 1292(a)(1)].” 293 U.S. 379, 381-82.

7. Recently this Court has distinguished orders which are subject

to alteration prior to final judgment as not appealable as not present-

ing such “final and irreparable” effect so as to come within an excep-

tion to the final judgment rule of section 1291. Coopers & Lybrand

v. Livesay, 437 U.S. 463 (1978); Cohen v. Beneficial Industrial

Loan Corp., 337 U.S. 541, 546 (1949). Compare 28 U.S.C. § 1291

(1979).

8. See Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197,

1201 (2d Cir. 1970), where the Court stated that it would be

“absurd” under such circumstances to defer determination of the

propriety of an order identical to that herein until after judgment.

Compare Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).

court of appeals, and a writ should issue to resolve these

conflicts.

III. Conflicts with Decisions in the Courts of Ap-

peal Holding that Orders Disposing of a Mo-

tion to Stay and a Motion to Enjoin Proceed-

ings in Other Courts are Appealable as One