# Petition — Leeward Petroleum, Ltd. v. Mene Grande Oil Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1539%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1980 - **Citation:** 445 U.S. 916 ## Text Goran, Court U2 ee ‘ 3 Se ee ee if } = JAN 11 1980 i 79-1087 jf bt | Ars fae if | ; MICHAEL RUULAK, ik., CLERR | <-ceee IN THE Supreme Court of the United States OCTOBER TERM, 1979 Wi 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 11 15 16 18 22 24 28 32 34 37 II 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 V. 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- a 2 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- 3 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 4 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 5 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. 6 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 1. 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: 7 (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). (c) Decisions issued by the courts of appeal which 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). 2. 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 8 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. 3. 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. 9 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 10 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. 11 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 12 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). 13 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 14 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). 15 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 Related Venue Question. There can be no doubt that where duplication of issues and concurrent litigation are present, a Motion to Stay one action, when combined with a Motion to enjoin another, will form a single, related venue question. The courts of appeal have so recognized this fact, noting that the entire venue question is appealable, the injunction pursuant to § 1292(a), and the stay, where applicable, as ancillary to the grant or denial of the injunction. Mercury Motor Express, Inc. v. Brinke, 475 F.2d 1086, 1092 (Sth Cir. 1973); Semmes Motors, Inc. v. Ford Motor Co., 429 F.2d 1197, 1201 (2d Cir. 1970). To ferret out an ordinarily nonappealable portion of a dis- trict court’s order, while ignoring another appealable aspect presumably to lessen the court’s docket load, is a practice destructive to a litigant’s right of review and the federal policy underlying section 1292(a). See Codex Corporation v. Milgo Electronic Corporation, 553 F.2d 735 (1st Cir. 1977) cert. denied, 434 U.S. 860 (1977). In Codex, a motion to enjoin duplicitous litigation and a Motion to Stay were before the Court. The ordex entered by the District Court was a stay of a later filed declaratory judgment action. No mention of the injunction was made in the order; rather, the Court of Appeals held that the motion to enjoin must be deemed denied by the 16 stay, sub silentio. On such facts, the court held that an appeal would lie “as [a matter] of right.” Id. at 737 (emphasis added). The only question, according to the Court, was whether the motion to enjoin was somehow dispensed with by the Court. See, e.g., Carter v. American Telephone & Telegraph Co., 365 F.2d 486, 489 (5th Cir. 1966), cert. denied, 385 U.S. 1008 (1967) (noting that appealability is particularly clear if the district court makes it perfectly clear that the stay was the reason for denying preliminary injunctive relief); 16 Wricut & MILLER § 3923 at 66 (ist ed. 1973). “It is the denial of a preliminary injunction, not the validity of the reasons therefore, which triggers the interlocutory appeal as a matter of right under § 1292(a)(1).” Carter, supra, at 489. This analysis should have been applied below. Ac- cordingly, a writ should issue to resolve these conflicts in the courts of appeal. CONCLUSION In view of the conflict of the dismissal below with the prior and long standing decisions and rule of this court and the various courts of appeals, and particularly in light of the specific mandate of § 1292(a)(1), Petitioners respectfully pray that this Court grant a Writ of Certiorari and reverse the decision of the court below. Respectfully submitted, 17 Supreme Court of the United States OCTOBER TERM, 1979 NO. 79- LEEWARD PETROLEUM, LTD., A Bermuda Corporation, Petitioner Vv. MENE GRANDE OIL COMPANY, A Delaware Corporation, and GULF OIL CORPORATION, A Pennsylvania Corporation, Respondents APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 18 APPENDIX A IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Civil Action No. 75-245 LEEWARD PETROLEUM, LIMITED, a Bermuda corporation, Plaintiff, V. MENE GRANDE OIL COMPANY, a Delaware corporation, and GULF OIL CORPORATION, a Pennsylvania corporation, Defendants. MOTIONS TO SEVER, FOR PARTIAL SUMMARY JUDGMENT, AND TO DISMISS OR STAY ON GROUNDS OF FORUM NON CONVENIENS Defendants Mene Grande Oil Company (“Meneg”) and Gulf Oil Corporation (“Gulf”) hereby move as follows: 1. Pursuant to Rule 21, Fed. R. Civ. P., to sever Count VI of the Amended Complaint; 2. Pursuant to Rule 56, Fed. R. Civ. P., for summary judgment dismissing Count VI on the ground that, based upon the pleadings, answers to interrogatories, depositions and affidavits to be filed, there is no material issue of fact as to such Count and that defendants are entitled to judgment as a matter of law; and, 19 3. To bring on for hearing the motion of Meneg to dismiss, or alternatively to stay, Counts I through V of the Amended Complaint on grounds of forum non con- veniens. In support of the foregoing, defendants respectfully represent as follows: A. On September 19, 1975, defendants moved to dis- miss the original complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12 (b)(6), Fed. R. Civ. P., and Meneg further moved to dismiss or stay this action on grounds of forum non conveniens. (Docket No. 5). B. On November 6, 1976, following the filing of de- fendants’ brief in support of the motion to dismiss under Rule 12(b)(6), plaintiff filed an amended complaint. (Docket No. 18). Defendants again moved to dismiss the amended complaint under Rule 12(b) (6), and Meneg again moved to dismiss or alternatively to stay this action on grounds of forum non conveniens. (Docket No. 21). On December 4, 1975, the Court entered an order re- quiring the Rule 12(b)(6) motion to be briefed and argued, and deferring the briefing and argument on the motion of Meneg to dismiss or alternatively to stay on grounds of forum non conveniens pending disposition of the Rule 12(b)(6) motion. (Docket No. 22). C. On May 25, 1976, The Court rendered an opinion and on July 6, 1976 entered an order denying the Rule 12(b)(6) motion to dismiss. (Docket Nos. 31 and 37, respectively). Thereafter the defendants filed their answer to the amended complaint. (Docket No. 42). 20 D. In their answer to the amended complaint the defendants asserted, inter alia, the defense of forum non conveniens, in paragraph 70 as follows: “70. The Amended Complaint should be dismissed under the doctrine of Forum Non Conveniens and Plaintiff remitted to pursue its available remedies under the laws of and in the Courts of Venezuela on the ground that the alleged transaction and all allegations as set forth in Counts I through V of the Amended Complaint: (a) involve parties and persons situate in Venezuela and crude oil produced and to be sold and purchased in Venezuela; (b) involve alleged obligations arising under and to be inter- preted and governed exclusively by the laws of Venezuela; (c) involve alleged claims which are properly determinable exclusively by the Courts of the Republic of Venezuela; and/or (d) involve al- leged claims which should, as a matter of comity, be determined by such Courts.” E. Defendants submit that there is no material issue of fact and that they are entitled to judgment as a matter of law on Count VI, in that there is no factual or legal basis for plaintiff's claim based upon an alleged violation of the federal antitrust laws. F. It is appropriate in this case for the Court to sever and proceed separately with Count VI of the amended complaint and to decide the defendants’ motion for sum- mary judgment as to such claim. G. The remainder of the amended complaint should be dismissed or stayed under the doctrine of forum non conveniens, in that such claims are wholly dependent upon issues arising under and required to be interpreted 21 and governed exclusively by the laws of Venezuela and that such issues are properly determinable by the Courts of the Republic of Venezuela. Respectfully submitted, /s/ E. NORMAN VEASEY E. Norman Veasey /s/ RICHARD J. ABRAMS Richard J. Abrams Richards, Layton & Finger 4072 DuPont Building Wilmington, Delaware 19899 Attorneys for Defendants Mene Grande Oil Company and Gulf Oil Corporation ~ Dated: September 6, 1977 22 APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE CIVIL ACTION NO. 75-245 LEEWARD PETROLEUM, LTD., a Bermuda corporation, Plaintiff V. MENE GRANDE OIL COMPANY, a Delaware corporation, and GULF OIL COMPANY, a Pennsylvania corporation, Defendants MOTION TO ENJOIN DEFENDANT, MENE GRANDE OIL COMPANY, FROM PROCEEDING IN ACTION SUBSEQUENTLY FILED IN VENEZUELA Plaintiff, Leeward Petroleum, Ltd., (Leeward) moves this Court for an order enjoining the defendant, Mene Grande Oil Company, (Meneg) from taking any further action or conducting any further proceedings in the declaratory judgment action filed by Meneg in the Judicial Circuit of the Federal District and State of Miranda in the Country of Venezuela, Case No. 8025, filed on or about September 6, 1977. The grounds for this motion are: 1. Both Leeward and Meneg are parties in the action now pending in this Court and have been since August, 23 1975, or over two years before Meneg filed its Vene- zuelan action. 2. The factual and legal issues raised in the latter filed action are included within Count I of the present action towards trial of which considerable time, effort and ex- pense have already been made in this action. 3. The said issues can be fully litigated in this forum whereas all of the said issues raised in this action cannot be fully litigated in the foreign forum. 4. The subsequently filed proceedings are vexatious and oppressive. 5. Said subsequent foreign proceedings were filed in derogation of this Court’s jurisdiction and seek an ouster thereof. The factual and legal basis substantiating the grounds set forth above are more fully set out in plaintiff’s open- ing brief, which is being filed concurrently, herewith. Dated: August 7, 1978 Respectfully submitted, Connolly, Bove & Lodge By /s/ THOMAS S. LODGE Attorneys for Plaintiff Farmers Bank Building Wilmington, Delaware 19899 24 APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Civil Action No. 75-245 LEEWARD PETROLEUM, LTD., a Bermuda corporation, Plaintiff, V. MENE GRANDE OIL COMPANY, a Delaware corporation, and GULF OIL CORPORATION, a Pennsylvania corporation, Defendants. ORDER THIS 15th day of May, 1979, the parties having brought the following motions before the Court: (a) The motion of defendants Mene Grande Oil Company (“Meneg”) and Gulf Oil Corporation (“Gulf”) to stay this action pending final determina- tion of an action commenced by Meneg against plaintiff Leeward Petroleum, Ltd. (“Leeward”) now pending in the Second Court of First Instance for Commercial Matters of the Judicial District for the Federal District and the State of Miranda, File No. 4995 (the “Venezuelan Action”); (b) The motion of Leeward to enjoin Meneg from proceeding in the Venezuelan Action; and 25 (c) The motion of Meneg and Gulf for summary judgment dismissing Count VI of the Amended Complaint; and such motions having come before the Court for decision on the record herein and the briefs and oral argument of the parties, and the Court having exercised its discretion and having rendered its decision in open Court on May 11, 1979, it is ORDERED as follows: 1. The Motion of Leeward to enjoin Meneg from proceeding in the Venezuelan Action is denied without prejudice. 2. The Motion of Meneg and Gulf to stay this action is granted. This action and all proceedings herein shall be stayed pending final determination in the Venezuelan Courts of the issues raised by way of Declaratory Judg- ment in the Venezuelan Action, or until further Order of this Court, on the condition that Gulf consent that, for purposes of the action pending in this Court, it shall be bound by such determination of the Venezuelan Action and that as to Gulf such judgment shall be given such res judicata and collateral estoppel effect as shall be applicable to Meneg and Leeward as if Gulf were a party to the Venezuelan Action. 3. The motion of Meneg and Gulf for summary judg- ment dismissing Count VI is denied without prejudice. /s/ CALEB M. WRIGHT Senior Judge 26 Approved as to form: /s/ THOMAS S. LODGE Thomas S. Lodge Connolly, Bove & Lodge 1800 Farmers Bank Building Wilmington, DE 19801 Attorney for Plaintiff /s/ E. NORMAN VEASEY E. Norman Veasey Richards, Layton & Finger 4072 DuPont Building Wilmington, DE 19801 Attorney for Defendants On behalf of Gulf Oil Corporation I do hereby accept and consent to the terms and conditions of paragraph 2 of this Order and I represent to the Court that Gulf intends and agrees to be bound thereby. /s/ E. NORMAN VEASEY E. Norman Veasey Attorney for Gulf Oil Corporation 27 APPENDIX D IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Civil Action No. 75-245 LEEWARD PETROLEUM, Ltd., a Bermuda corporation, Plaintiff, V. MENE GRANDE OIL COMPANY, a Delaware corporation, and GULF OIL CORPORATION, a Pennsylvania corporation, Defendants. Wilmington, Delaware May 15, 1979 BEFORE: THE HONORABLE CALEB M. WRIGHT, Senior, Judge, United States District Court. APPEARANCES: CONNOLLY, BOVE & LODGE By: THOMAS S. LODGE, ESQ. for the Plaintiff, RICHARDS, LAYTON & FINGER By: E. NORMAN VEASEY, ESQ. for the Defendants. | 28 TRANSCRIPT OF PROCEEDINGS May 15, 1979 5:05 o’clock p.m. Judge’s Chambers PRESENT: As noted. THE COURT: Gentlemen, there are several matters which you have asked me to rule upon. I am sorry that I don’t have the time to do this more formally. But would you please state for the record what it is you wish me to rule upon? MR. VEASEY: Your Honor, I have submitted a form of order to implement the Court’s ruling of Friday, May 11. The form of order has been agreed to, I believe, by Mr. Lodge. In addition to that, I believe Mr. Lodge has an application for certification to the Court of Appeals. We take the view that the order as agreed to by the parties to implement Your Honor’s ruling is not appeal- able under 28 USC, Section 1292 (a)(1), nor should it be certified under 28 USC, Section 1292 (b) for the reason set forth in the letter which I have submitted to Your Honor today. Therefore, it would be our application that the request for certification be denied. This is a discretionary ruling of Your Honor’s. The Order so states. The basis for the ruling is set forth in the record. THE COURT: Mr. Lodge, do you have anything that you wish to put on the record? 29 MR. LODGE: Your Honor, of course— THE COURT: With respect to the certification. MR. LODGE: With respect to the certification, the application was made on the ground that the granting of the stay in the court pending the determination of the declaratory judgment action in the Venezuelan court, and the denial of the injunction to enjoin defendant from proceeding in the Venezuelan court, are so interwoven that it is Plaintiff’s contention that if the matter were certified to the Court of Appeals, that is, the matter of the stay going up with the injunction, which, of course, we take the position, as opposed to Mr. Veasey, that the denial of the injunction is an appealable order under 1292 (a)(1), that it would tie the package up in one bundle as it were and in our opinion materially advance the termination of the litigation, not to have this legal battle being waged on two fronts simultaneously. THE COURT: Very well. Now, the question of the stay was litigated, and, of course, I did not make any formal ruling when we had our hearing, when was it, last Friday. MR. VEASEY: Last Friday, May the 11th. THE COURT: Friday, May the 11th about the motion for the injunctive relief. I thought that the very fact that I stayed this action here indicated that the matter down there should proceed. But to make it formal I now formal- ly rule that the injunction which is requested by the Plaintiff in this case is denied. The motion for certification in my opinion is not war- ranted by this Court for two reasons, the main one being 30 that I do not think that it is a proper matter to be certified. It is discretionary. I think I exercised my dis- cretion and I don’t think it would be looked upon favor- ably 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 injunctive relief which you requested— MR. VEASEY: That is, the Plaintiff requested. THE COURT: Yes.—that that would mean possibly 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 Defendants in this case from proceed- ing in Venezuela. And these are the reasons that I am denying the motion for certification. As far as the injunctive relief and my reasons for acting as I have with respect to these two motions, I think that is pretty well documented in the proceedings before the Court and the Court’s statements on May the 11th, the day of the hearing. Does that cover it? MR. VEASEY: Yes, Your Honor. I would just like to add one thing with respect to the matter of delay. I agree with Your Honor that certification and injunction pending appeal would delay matters. THE COURT: It might. MR. VEASEY: It might delay matters. THE COURT: I don’t know that it would, but I can see the possibility that it might delay matters. MR. VEASEY: It is our view, and I think the record Supports it, that the action in Venezuela can go forward, 31 we're ready to go forward on the merits of that action, and, if the Plaintiff here, Leeward, would cooperate, the matters could go forward on the merits down there ex- peditiously. We’re prepared to move that forward. THE COURT: Now, off the record a minute. (A brief discussion was had off the record.) MR. LODGE: In reply to Mr. Veasey’s statement, I would not want any inference to be drawn from the fact that Leeward will not cooperate in the prosecution of the declaratory judgment action in Venezuela—I certainly assume that it will—and that there should be no feeling that there would be any intentional foot dragging in order to try to get the matter determined here in the Court of Appeals before anything further is done in Venezuela. (The proceedings recessed at 5:20 o’clock p.m.) 32 APPENDIX E IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE Civil Action No. 75-245 LEEWARD PETROLEUM LIMITED, a Bermuda corporation, Plaintiff, V. MENE GRANDE OIL COMPANY, a Delaware corporation, and GULF OIL CORPORATION, a Pennsylvania corporation, Defendants. NOTICE OF APPEAL Notice is hereby given that Leeward Petroleum, Ltd., plaintiff above-named, hereby appeals to the United States Court of Appeals for the Third Circuit from paragraph 1 of the Order, entered by the United States District Court for the District of Delaware on May 15, 1979, denying plaintiff's Motion to enjoin the defendant, Mene Grande Oil Company, from proceeding in the Venezuelan Action begun by said defendant against plaintiff; and also from paragraph 2 of said Order granting the Motion of defend- ants to stay the instant action pending the final deter- mination of ihe issues raised by Declaratory Judgment in 33 the Venezuelan Action, or until further Order of this Court. Dated: June 11, 1979 Connolly, Bove & Lodge By /s/ THOMAS S. LODGE Farmers Bank Building Wilmington, Delaware 19899 Attorneys for Plaintiff OF COUNSEL: George W. Renaudin, Esc. Royston, Rayzor, Cook & * ickery 3710 One Shell Plaza Houston, Texas 77002 34 APPENDIX F IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT — No. 79-1947 LEEWARD PETROLEUM, LTD., a Bermuda corporation, Appellant, V. MENE GRANDE OIL COMPANY, a Delaware corporation, and GULF OIL CORPORATION, a Pennsylvania corporation, Appellees. APPELLEES’ MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION Defendant-Appellees, Mene Grande Oil Company and Gulf Oil Corporation, hereby respectfully move this Court for an Order dismissing the appeal of plaintiff-appellant, Leeward Petroleum, Ltd. to this Court from an Order of the United States District Court for the District of Delaware, entered May 15, 1979. The ground upon which this Motion is based is that this Court does not have subject matter jurisdiction under 28 U.S.C. § 1292(a)(1) over an appeal from an inter- locutory order of the District Court: (a) staying pro- ceedings before it in favor of a declaratory judgment action in the courts of Venezuela; and (b) refusing to 35 enjoin the prosecution of the declaratory judgment action in Venezuela. Support for this Motion is found in appel- lees’ answering brief filed September 6, 1979, at pages 11 et. seq. WHEREFORE, appellees respectfully move this Court to dismiss the appeal herein for lack of subject matter jurisdiction, the costs to be awarded to appellees. Respectfully submitted, /s/ E. NORMAN VEASEY E. Norman Veasey Allen M. Terrell, Jr. David B. Stratton Richards, Layton & Finger 4072 DuPont Building P. O. Box 551 Wilmington, Delaware 19899 Attorneys for Defendant- Appellees, Mene Grande Oil Company and Gulf Oil Corporation OF COUNSEL: Kevin F. Cunningham The Law Department The Gulf Companies P. O. Box 3725 Houston, Texas 77001 36 CERTIFICATE OF SERVICE I hereby certify that on September 6, 1979, that true and correct copies of the within Appellees’ Motion to Dismiss for Lack of Subject Matter Jurisdiction were personally delivered to: . Thomas S. Lwdge, Esquire Connolly, Bove & Lodge 1800 Farmers Bank Building Wilmington, Delaware 19899 Counsel for Appellant, Leeward Petroleum, Ltd. /s/ E. NORMAN VEASEY E. Norman Veasey Dated: September 6, 1979 37 APPENDIX G OFFICE OF THE CLERK UNITED STATES COURT OF APPEALS For The Third Circuit 21400 United States Courthouse Independence Mall West 601 Market Street Philadelphia 19106 THOMAS F. QUINN Telephone Clerk 215-597-2995 November 6, 1979 Mr. William S. Anderson, Jr. Clerk, U. S. District Court Box 18 Federal Building Wilmington, Delaware 19801 Re: Leeward Petroleum, Limited vs. Mene Grande Oil Company, et al.; Leeward Petroleum Limited, etc., Appellant — No. 79-1947 (D.C. Civil No. 75-0245) Dear Sir: Enclosed herewith is a certified copy of order in the above-entitled case(s). This certified order is issued in lieu of a formal mandate and is to be treated in all respects as a mandate. We return herewith the record in this case and will appreciate your signing the enclosed list(s) as a receipt for same. 38 Counsel are advised of the issuance of the mandate by copy of this letter. A copy of the certified order is also enclosed showing costs taxed, if any. Very truly yours, /s/ THOMAS F. QUINN Clerk Imp Enclosure cc: Thomas S. Lodge, Esq. (E. Norman Veasey, Esq. (Allen M. Terrell, Jr., Esq. 39 THIRD CIRCUIT October 5, 1979 No. 79-1947 LEEWARD PETROLEUM, LIMITED v. MENE GRANDE OIL COMPANY and GULF “iL CORPORATION LEEWARD PETROLEUM LIMITED, a Bermuda corporation, Appellant (D. C. Civil No. 75-0245) Present: GIBBONS and HIGGINBOTHAM, Circuit Judges. 1. Appellees’ motion to dismiss appeal for lack of jurisdiction, the costs to be awarded to appellees, 2. Copy of brief for appellees, sent by the undersigned for the Court’s information, in the above listed for Monday, October 15, 1979, or as the Court decides. Respectfully, /s/ T. L. QUINN Clerk ald enc. 40 The foregoing Motion is granted. By the Court, /s/ JOHN J. GIBBONS Judge Costs taxed in favor of appellees as follows: Ae ET ne 5a $1,810.09 Dated: October 15, 1979 Certified as a true copy and issued in lieu of a formal mandate on November 6, 1979. Test: /s/ THOMAS F. QUINN Clerk, United States Court of Appeals for the Third Circuit --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1539%3A1. Public record. Not legal advice.