# Appendix — Boshes v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1530%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1971 - **Citation:** 404 U.S. 872 ## Text dedi win a . " - SS - . ‘+ a : Supreme Court, U.S. F ee eee eet Soe =e. | wn 7 asm | E. ROBERT: SEAVER, cue In the 70-24 * a Supreme Court of the Gnited tates — Oc TOBER Tern, — ROGER BOSHES, ESTHER K. ROERIG, CURTIS COLLUM, FRANK JACKSON and JAMES TAYLOR, Petitioners, aa GENERAL ‘MOTORS CORPORATION and-the HONOR-——-———— “ABLE WILLIAM J. CAMPBELL, Judge of the United States District Court for .the Northern District of Illinois, Respondents. APPENDIX TO PETITION FOR WRIT OF CERTIORARI rome | TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT | ae AnTHONY Brapitey Epex 1 North LaSalle Street Chicago, Illinois 60602 e° Mitton K. Joserx . 120 West Madison Street : : Chicago, Tllinois 60602 CHartes LIEBMAN 120 West Madison Street Chicago, Illinois 60602 Raymonp I. SurKorr 120 West Madison Street Chieago, Tllinois 60602 Attorneys for Petitioners The Scheffer Press, Inc.—ANdover 3-6850 a“ * ~ = be : . ; : - . . . | . * . : ; . - 4 : ‘ | | a | . . , - * . | | | CE ~ No. 68 C 1454 GENERAL Motors Corporation, . Defendant. J “MOTION FOR RULE 23 ORDER Come now the plaintiffs and move the Court to. deter- mine by order pursuant to Rule 25 of the Rules of Civil Procedure that this action is to be maintained as a class action, and to make such orders regarding notice to the members and alleged members of the class. as may be ap- propriate or necessary under the Constitution, the laws, . and the Rules. x 3% A. Bradley Eben : Milton K. Joseph’ Charles Liebman Raymond |. Seukoff - 120 W. Madison Street Q Chicago, Illinois 60602 Attorneys for Plaintiffs, ’ _ Roger Boshes, et al. ] Bae ccien jades bieiielaseaniasisuaaetnbpess Untrep States District Courr Name ‘of. Presiding Judge. Honorable Judge Campbell Cause No. 68 C 1454 aed Date Oct 6 1970 Title of Cause—Boshes vs General Motors Brief Statement of Motion—Motion for Orders under Rule 23 & Rule 22 Order den See eeeatiasadieunbnastenisses ay. poe : Motion for orders under Rule 22 and Rule 23 are denied /s/ W.J.C. In THE UNITED STATES District Court For the Northern District of [linois Eastern Division > Rocer Bosues, et al., | Plaintiffs, . Ras PBL seanen Nos. 18939, 18940 Sos , 2 GENERAL Motors Corporation, Appellee. 3 e APPELLEE’S MOTION TO DISMISS APPEALS AND MEMORANDUM IN SUPPORT THEREOF _ Defendant- appellee hereby moves the Court to dismiss these appeals because thie order appealed from simply de- ferred any ruling by the district court with respect to plain- tiffs- appellants’ procedural, motions until such time as the legal-sufficiency of the complaint was determined. This case was brought by five automobile owners, appel- _lants here, as a purported class’action on behalf of all per- . sons who purchased General Motors passenger cars during the four years immediately preceding the filing of the com- plaint, seeking to recover treble damages on the. theory that defendant General Motors Corporation violated the antitrust laws by “c onspiring” with itself or with or among its internal passenger car divisions in establishing the prices for new General Motors ears. General Motors filed a motion to dismiss the complaint for failure to state a claim upon which relief could be granted, and the final memo- randum of the parties briefing that motion was filed on August 14, 1970. \ — a—. | 7 o . | Almost two months later, and while the motion to dismjss was under submission, plaintiffs filed two procedural mo- tions. In the first, they asked that: Rute 22 of the Civil ‘Rules for the Northern District of Illinois be modified, de- _ ¢lared null and void, or held wiconstitutional. Rule 22 pro- vides that in every class action no communication concern- ing the action shall be made by any of the parties or their - counsel with any potential or actual class member who is not.a formal party to the action, until such time :as an order may be entered by.the court approving the communi- cation. Plaintiffs’ motion was nade apparently for the pur- pose of allowing them to communicate with State attorneys general without supervision of the district court. In their second motion, plaintiffs asked the district court to proceed to make the requisite class action determination under Rule 23 of the Federal Rules of Civil Procedure. Pointing out that it had not yet ruled on the pending motion to dismiss, the district court denied plaintiffs’ mo- . tions with leave to reinstate: “T think I would rather finish what I am.doing now. Your motion is denied. I will rule on what is pending before me now, which was-fully submitted. Following that, you have leave to reinstate your motion, tf if ap- pears appropriate.” (Tr. at 3-4, Oct. 6, 1970). Since the filing of plaintiffs’ notices of appeal, the: dis- trict court granted defendant’s motion to dismiss the‘eom- plaint insofar as it purports to state a claim based on See- tion 1 of the Sherman Act and the so-called intra-corporate conspiracy theory. (Order, Dec. 11, 1970; copy attached hereto as Appendix A). The court also granted Ceneral Motors additional time within which to answer or other- wise plead with respect to the remaining allegations of the complaint, which consist essentially of an amendment to the complaint filed by plaintiffs-on August 27, 1970. In that amendment plaintiffs allege additional a ae of the sy — 13a — antitrust laws unrelated to their initial ‘charge of intra- corporate conspiracy. Significantly, in grarting, defen- dant’s motion to dismiss, the court -below said: “The motions seeking a determination that this is a proper class action brought pursuant to Rule 23 and other questions under Rule 23 and Local, Rule 22 will be considered if and when the court concludes that plaintiffs’ complaint states a claim upon which relief can be granted.” (Order, Dee. 11, 1970). In the light of the above, appellee General Motors moves this Court to dismiss the appeals on the ground that no jurisdiction exists for appellate review of an order defer- ring. consideration of routine procedural motions or even a denial of those motions. ARGUMENT PLAINTIFFS-APPELLANTS’ MOTIONS WERE NOT DECIDED; CONSIDERATION OF THEM WAS SIM- PLY DEFERRED. _ Although the district court “denied” plaintiffs’ motions _ on October 6, 1970, it is clear that the court was not ruling on the merits of the motions or reaching any decision with respect to them. Rather, the court concluded only that it would not rule on the motions until the preliminary ques- tion of the sufficiency of the complaint was determined.* The court’s subsequent order of December 11, 197 0}hca- firms that plaintiffs’ motions had not been decided and that final consideration of them was being deferred until the ‘remaining issues of the sufficiency of the complaint were determined. é‘ ' q : * The district court no doubt recognized the ineffisiency inherent in determining the class action issues or permit- ting communication with ‘alleged class members regarding an action the court might shortly dismiss for failure to state a claim. ras — l4a — - Appeals to this Court may be had only to review a final decision of the district court, 28 U.S.C. $1291, or to review an order granting or denying an injunction or the dissolu- tion of an injunction, 28 U.S.C. §1292(a).** The October | 6 order i is plainly not a final decision under Section 1291 in any respect since it reaches neither substantive issues. my even the merits of the motions. Morov er, the order is not one refusing to dissolve an injunction, as plaintiffs would apparently ‘characterize it, but rather only a deferral of. the court’s consideration of the issues relevant ‘to either. dissolving or refusing to dissolve any injunctive effects of Lotal Rule 22. In Babcock & Wilcox Co. v. Foster Wheeler Corp., 415 ~ F.2d 777 (3d Cir. 1969), the district. court, in ‘accordance with the rules of the U.S. Patent Office, denied a request for access to certain information until the appr opriate stage of the proceeding was reached.* The Court of Appeals for the Third Cirenit dismissed an appeal from the district | court’s order because it lacked sufficient finality to be ap- me pealable and noted that, as‘here, “the district court’s order denying the motion recited that“its denial was without _ prejudice to appellant’s right: to renew its motion” at an appropriate time, so that the attempted appeal merely. sought “a review of the propriety of district court action which did not determine the merits of appellant’s motion and which did not have the effect of prejudicing the appel- | lant. ” 415 F.2d at 778. ** 98 U.S.C. §1292(b), which provides for permissive re- view of certain interlocutory orders, is not involved here since plaintiffs did not seck certification of the district court’s order. * Local Rule. 22 is analogous to the Patent Office rule in — that it restricts certain communications until an appropri-. ate order of the district court issues. +t =} Even in the unlikely event that Local Rule 22 should be - construed to be ans injunction, and the October 6- order were considered to have heen a refusal to dissolve it. that refusal would not be reviewable under §1292(a) (1 ), which was intended to apply only to interlocutory orders tempo- rarily granting or denying part or all of the ultimate relief sought by the complaint.** See 9 Moore, Federal Practice 110.20[1 ],. at 233-235 (2d ed. 1970); Stricklin v. Regents of the Univ. of Wisconsin, 420 F.2d 1259, (7th Cir. 1970). For example, in Whittle v. Tawes, 343 F.2d 428 (4th Cir. 1965), which was an action against the governor of Mary. and to compel him to investigate the circumstances sur- rounding the death of the plaintiff’s brother, the defendant moved to dismiss the complaint. An order. was then en- tered déferring the taking of depositions by the plaintiff ‘pending disposition of the motion to.dismiss. In dismissing an appeal from that order, the Court of Appeals for the Fourth Circuit explained: s ee dy “This is a routine ‘procedural step in the normal ad- - ministration of the case and obviously not the type of order that may be reviewed before the final determina- tion of the case, and 28 U.S.C.A, §1292(a) (1), upon which the appellant relies,-is inapplicable.” [bid. See also International ‘Prods. Corp. v. Koons, 325 F.2d 403, 406 (2d Cir. 1963). Plaintiffs-appellants hete, as in Babcock & Wilcox and Whittle; seek to appeal a procedural ruling which reaches neither the merits of the underlying action nor the merits of the motions themselves. Consequently, even if the Octo- .** Only with respect. to their, motion concerning: [Local Rule 22 can plaintiffs possibly characterize the October 6 order as ‘one refusing to dissolye an -injunction. Section 1292(a)(1) is clearly inapplicable to the deferral of plain- tiffs’ motion for a Rule 23 class action determination, par- ticularly since the time for making that determination lies within the discretion. of the district court. — 16a — ber 6 order were considered a “denial” rather than a de- ferral of their motions, the appeals should be dismissed. | Of Counsel: . Kirkland, Ellis, Hodson, Chaffetz & Masters Ross L. Malone Robert A. Nitschke General Motors Corporation | 3044 West Grand Boulevard Detroit, Michigan. 48202 313-556-5000 = | Dated: January 4, 1971 Respectfully submitted, /s/ Hammond FE. Chaffetz Hammond E. Chaffetz /s/ Joseph DuCoeur Joseph DuCoeur 2900 Prudential Plaza. Chicago, Ilinois: 60601 RA 6-2929 Attornevs for Defen-~ z dant-Appellee General Motors Corporation Unitep States’ District Court Name of Presiding Judge, Honorable Judge Campbell — Cause No. 68 C 1454 | Date Dec 11 1970 Title of Cause—Roger sec et.al vs General Motors Corporation Brief Statement of ae eee Defts. motion to dismiss the complaint is granted insofar ‘as the same is based on Sec. One of the-Sherman Act (15 U.S.C, 51) and the theory of an inter-corporate conspiracy. a s —17a— Joseph E. Seagram and Son, Inc. vs Hawaiian Oke Liquors, Ltd., 416 F. 2nd 71 (9th Cir. 1969) Cliff Food Store Inc. vs ‘Nroger, Inc., 417 F 2nd 203 (th Cir. 1969) In all other respects the slick to dismiss is denied. Deft. shall answer or plead to the remaining allegations to the complaint ‘within 20 days of this:date. The motions seek- ing a determination that this is a proper class action brought pursuant to Rule 25 & other questions under Rule 23 and Local Rule 22 will be considered if and when the court concludes that plaintiffs complaint states a ‘claim. upon which relief cain be anaes. (Draft) - . | Isf WIC. Ty Toe Unirep States Courr Or “APPEALS For The Seventh Circuit ‘ Rocer Bosuks, et al. Plaintiffs. Appellants YV. ‘ > Nos. 18939 and 18940 ° _ GENERAL Motors Corporation, Defendant- Appellee | OB. JECTIONS TO MOTION OF GENERAL MOTORS CORPORATION, DEFENDANT- APPEL LEE, TO DISMISS THESE AP- . PEALS eo & Plaintiffs-Appellants object to General Motors’ Corpora-.- tion’s motion to dismiss these appeals. Plaintiffs-A ppel- lants urge that the motion be denied, or perhaps prefer- ably, that the motion be taken with the case, and consid- ered also in connection with the Petitions for Mandamus filed concomitantly hereto (as this Court.did in the Order : entered by it on May 1, 1970, in No. 18424, Chase v. Rob- — aiaahaiiiee tine iia 2 ” - — 58a — There is no question that General Motors is a $23 billion et ee dollar corporation, whose resources to resist this suit are * * for all practical pirposes: limitless. There is no question that more than 214 years have now passed since the ‘filing. of the suit. - Se . ; : _ It is perfectly practicable at this time for the District Court to determine by order whether this. suit is to be maintained as a class suit. The wording of Rule 23(c¢) (1) is mandatory; the Rule uses the word “shall”. See John- son v. City of Baton Rouge, La., 14 F.RS.2d p. 737... We respectfully direct this Court s attention to the fact that we ask no more in this mandamus proceeding than that the District Court make a determination at.this time ; we do not ask this Court to. tell the Djstrict-Court what the determination shall bé (although we think it is clear that the determination must- We in our favor). ~ We respectfully submit that, in the light of the wording of the rule, the indefinite: postponement of ruling on a re- quest to make such a determination constitutes an abuse of discretion, remediable by manddmus in this court. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 480; Shutte v. Armco Steel Corp. 431 F.2d 22; Harper and Row Publishers, Inc. v. Decker, 423 F.2d 487. | We also‘respectfully submit that in view of the serious question of the Statute of Liniitations, as it may affect the members of the class who have no ‘knowledge of the pro- ceedings, due process requirements under the Fifth Amend- ment require that some kind of. reasonable notice of the ‘proceedings be given to the class at this stage, regardless of Rule g3(ce) (2). Clark v. American Marine Corp., 297 F. | — Supp. 1305. Finally, we note that in the most recently reported cases, the Rule 23(c) (1) determination has been made at an early | stage of the proceedings. Gerstle v. Continental Airlines, ™s . - ENG CSOSA OC AMG TET NEY 14 Fed. Rules Service 2d 342; Turnoff v.N ederldhdsch, etc., 14 Fed. Rules Service 2d 408; Cusack -v. Nederlandsch, etc., 14 Fed. Rules Service 2d 415; Philadelphia Electric Co. v. Anaconda America Brass Co., 42 F.R.D. 324; Hurdy v.. U.S. Steel Corporation, 289 F.Supp. 200: Weisman v. MCA, Inc., 45 F.R.D.559. —- an , ; _ PRAYER FOR RELIEF Wherefore, the petitioners, Roger Boshes, Esther K. Roerig, Curtis Collum, Frank Jackson and James Taylor, pray that this court: nee 1. Issue a writ of mandamus directing the Respondent, _ the Honorable William J. Campbell, to determine whether the action below, namely, the case of Boshes, et al; v. Gen- eral Motors Corporation, No. 68C-1454, be maintained as. a class suit. — | 2. Issue a writ of mandasnus directing the Respondent, the Honorable.SVilliam J. Campbell to direct appropriate notice to the members of the class or to representative members thereof in vindication of their Fifth Amendment due process rights, of the. pendency of these proceeding¢, and the nature thereof. - - Issue its order staying the proceedimgs in the tri court until this Court has determined whether the writ df mandamus or either of them prayed for in paragraphs 1 - and 2 next above shall isste. - ; 6. —a— \ ° | z , a 4. Make such other order-as may be appropriate to vindicate the First Amendment and Fifth Amendment . rights of plaintiffs and the members of their class. Respectfully submitted, | A. Bradley Eben, | . - 1 N. LaSalle St. Chicago, Ill. 60602 Milton K. Joseph Charles Liebman ’ Raymond I. Suekoff _ 120 W. Madison St. a Chicago, Ill. 60602 By /s/ Raymond I. Suekoff. Attornevs for Petitioners J | i. STATE OF ILLINOIS ) COUNTY OF COOK. ) if Raymond I. Suekoff, being first duly sworn, on oath says that he is one of the counsel for-petitioners herein and that = the allegations of fact in said petition contained are true. | i , _ /s/ Raymond I. Suekoff | Subseribed and sworn to before me this 1!th day of February, 1971. nae /s/.Naney. Fitzgerald € Notory Public . SS. & — P ‘ : 2. NAIR scene secestca nanos camesossmces RAE A aE ey an s . 7 ‘ \ —— 6] a— « In Tue Unrrep States Court Or APPEALS For. The Seventh Circuit Friday, Febriary 26, 197] oe. Before aoe Hon. Lutuer M. Swycert, Chief Judge Hon. Orro Kerner, Cirenit: Judge _ Hon. Joun Pau Stevens, Ctreuit Judge Rocer Bosurs, et.al... on Petitioners; No. 71-1122 : : __ L Original Petition for | i: Honoraste Witviam- J. Campseiy, [ Writ of Mandamus. ' Judge , tll Petitioners, No. 71-1122 : : bisa - Original Petition for Honoraste Witiram J. CaMPBELL, | Writ of Mandamus. Judge | United States District Court, ; -Respondent. This matter comes before the Court on petitioners’ peti- tion for rehearing, or, ‘in. the alternative, to vacate the order of denial, and to file a new order stating the reasons for the denial of the petition for mandamus. On consideration whereof, the Court being fully advised in the premises, Cea ae . — 64a <7 It Is Ordered that said petition be and the same is hereby denied. ) re Respectfully submitted, ANTHONY Braptey EBen . os Mitton K. Joserx Gc. CHARLES LIEBMAN Raymonp I. Surxorr Attorneys for Petitioners --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1530%3A1. Public record. Not legal advice.