author: WILLIAM E. MILLER, Circuit Judge.

text:
    Maurice M. SAYRE, Trustee in Bankruptcy of the Liberty Mortgage Corporation, Plaintiff-Appellee, v. The CITY OF CLEVELAND, Defendant-Appellant.
    No. 73-1594.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 3, 1973.
    Decided March 14, 1974.
    James A. Smith, Cleveland Ohio, for defendant-appellant; Herbert R. Whiting by Robert W. Jones, Asst. Director of Law,' City of Cleveland, James P. Mancino, Issac Schulz, Squire, Sanders & Dempsey, Cleveland, Ohio, on the brief.
    Thomas A. Luebbers, City Sol., Thomas Rehme, Asst. City Sol., Cincinnati, Ohio, on brief for amici curiae city of Cincinnati.

      James W. Drake, City Atty., Dayton, Ohio, on brief for amici curiae city of Dayton.
    Edwin P. Woodle, Cleveland, Ohio, for plaintiff-appellee; Woodle, Wachtel, Be-gam & Wolk, Cleveland, Ohio, James W. Childs, Van Wert, Ohio, on brief.
    Before McCREE and MILLER, Circuit Judges, and MeALLISTER, Senior Circuit Judge.
   WILLIAM E. MILLER, Circuit Judge.

This appeal raises important questions concerning the extent to which property may be affected by an urban renewal program without being “taken” within the meaning of the fifth and fourteenth amendments to the Constitution of the United States. The facts and procedural history of the case are somewhat complex and require a not incomplete statement.

The appellee Maurice Sayre, is the trustee in bankruptcy of Liberty Mortgage Corporation. In November of 1966 appellee brought an action against the City of Cleveland for damages for loss of income, earnings and property caused by the City’s negligence in conducting certain aspects of its urban renewal program. The City moved to dismiss, and soon thereafter the appellee amended his complaint to allege that the City had in fact taken Liberty Mortgage’s property without compensation in violation of the fifth and fourteenth amendments to the United States Constitution. Specifically, the amended complaint alleged that the City had notified Liberty Mortgage and occupants of certain of its properties of the City’s intention to appropriate numerous parcels of real property owned by Liberty Mortgage. These actions of the City were said to have “constituted the initial steps in the appropriation of the property of plaintiff’s bankrupt, which appropriation the defendant City never carried to completion and which said defendant at no time had the facilities or ability to consummate.” Moreover, in the Brief of Plaintiff in Response to Reply Brief of Defendant City of Cleveland, appellee alleged that the “initial steps” taken by the City were the passage of a resolution by the city council declaring its intent to appropriate certain parcels of Liberty Mortgage’s property and the subsequent issuance of .written notices in conformance with the procedures required under Ohio law for appropriation of property by a municipal corporation. Ohio Revised Code §§ 719.04 and 719.05.

Treating the motion for dismissal as including a motion to strike, the district court ordered appellee to file a second amended complaint, but to omit claims based on negligence and claims for incidental or consequential damages. Sayre v. United States, 282 F.Supp. 175 (N.D. Ohio 1967). However, appellee was permitted to maintain his claim that the City of Cleveland had abused the eminent domain proceedings and taken properties of Liberty Mortgage without just compensation. Fundamental to the decision is the reliance by the district court on appellee’s allegation that the City intended to appropriate these properties and, in fact, had already begun the condemnation procedures. These allegations presented questions concerning the abuse of the power of eminent domain which this Court in Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), said was a sufficient basis for the exercise of federal jurisdiction. The following language of the district court is instructive as to its thinking:

Under Foster v. Herley, supra, it is the law of this circuit that a municipality’s claimed abuse in its exercise of the power of eminent domain, with the claimed result of taking private property without just compensation, presents a question of federal jurisdiction under the fourteenth amendment which a federal district court must hear and determine. Plaintiff’s amended complaint in charging the defendant City with conduct which tends to state an abuse in the exercise of the power of eminent domain presents a federal jurisdictional question under the fourteenth amendment as interpreted in Foster v. Herley, supra. 282 F.Supp. at 183.

An examination of our opinion in Foster v. Herley, 330 F.2d 87 (6th Cir. 1964), and the district court’s opinion on remand, Foster v. City of Detroit, 254 F.Supp. 655 (E.D.Mich.1966), aff’d 405 F.2d 138 (6th Cir. 1968), is crucial to an understanding of the holding of the district court. Foster owned three tracts of land in the City of Detroit. In 1950 the City notified him that it intended to condemn his property and that in the meantime he should do nothing either to maintain or improve the property. A few months later the City instituted formal condemnation proceedings and placed a Us pendens against all property in the area. Additionally, the Detroit Common Council passed a resolution freezing the use and management of the property and prohibiting any new buildings or improvements without special permission of council. Despite these initial steps, the condemnation process was never completed; in June of 1960 the City dismissed the proceedings and removed the Us pendens. But during this ten year period Foster’s property deteriorated because of the apparently imminent condemnation: it became extremely difficult to find tenants for his rental property; vandals looted the empty buildings and fire insurance was can-celled. The entire neighborhood suffered similar problems. Then in 1958 the City informed Foster that because of the delapidated condition of the buildings, they would have to be demolished at his expense. This was done, and Foster was left in debt with three empty parcels of land. Finally, in 1961 Foster learned that the City was again considering condemnation — this time under the Federal Urban Renewal Program. The new appraisals on the property were at its depreciated, 1961, value.

Foster filed suit in the United States District Court, alleging that the City had abused its power of eminent domain and had so deprived the plaintiff of his use and enjoyment of the property that there was a taking of the property without compensation. The district court dismissed the action because it found that there could be no taking unless the condemnation process was completed and title passed to the City. Once plaintiff’s claim under the fourteenth amendment was lost, he was left with a tort action against the City — a cause of action which the federal court did not have jurisdiction to hear since there was no diversity of citizenship. On appeal this Court reversed, holding that pursuant to 28 U.S.C. § 1331, the district court had jurisdiction to hear the merits of the case and then determine whether plaintiff had a valid cause of action under the fourteenth amendment.

The district court on remand heard the case on the merits, finding in favor of the plaintiff. The actions of the City —initiating the condemnation proceedings, refusing to allow improvements and permitting years of delay in the proceedings — were, at the very best, major contributing causes of the decline in value of the area in general and of the plaintiff’s property in particular. Although the condemnation process was never formally completed, the City had effectively “taken” plaintiff’s property within the meaning of the fifth and fourteenth amendments and was therefore liable for just compensation. This Court affirmed the district court’s decision although our opinion was directed mainly to procedural issues raised by the City on appeal.

In the present case the City of Cleveland, after the denial of its motion for dismissal, prepared written interrogatories for appellee to answer. Specifically, the City requested appellee to list those properties which it believed had been taken by the City. Appellee responded by naming 194 properties. In August of 1972, the City moved for summary judgment. Accompanying this motion was the affidavit of Frederick Pizzedaz, Executive Commissioner of the Cleveland Department of Community Development. Pizzedaz stated that none of Liberty Mortgage’s properties involved in the current appeal had been the subject of any council resolution of intent to appropriate for the general neighborhood planning area or the urban renewal project area. Neither had any of said properties ever been designated for appropriation for the urban renewal project nor had any of said properties been the subject of an eminent domain proceeding.

The district court granted summary judgment for the City on 107 of the 194 properties: 29 of the properties were found to have been previously acquired by the City, and 78 were found to be entirely outside the General Neighborhood Renewal Plan Area and not where the urban renewal activity, of which appel-lee complained, had occurred. But for the remaining 87 properties — those within the General Neighborhood Renewal Plan Area — summary judgment was denied. The district court did not elaborate on its reasons for denying the motion other than to hold that the complaint stated a claim upon which relief could be granted. Also the court stated that appellee had “stated a claim for relief as to which there exists a genuine issue of-material fact. . . . ” Unfortunately, the memorandum opinion does not state which facts, crucial to the decision, are in dispute. It is from the denial of summary judgment on these 87 properties that the City of Cleveland brings this appeal.

Post-war concern over decaying central cities and blighted neighborhoods led to the passage of the Housing Act of 1949, 42 U.S.C. Sec. 1441 et seq., and the Housing Act Amendments of 1954, 42 U.S.C. Secs. 1450-1462. Briefly stated, the purpose of these programs was to provide financial assistance to communities in order that they might clear slums and blighted areas and rehabilitate old houses where possible. Adequate planning, often a luxury for rapidly changing cities, was encouraged by the Acts, and federal loans were made available to finance the plans. Two types of plans are of particular importance to this appeal. The first, the General Neighborhood Renewal Plan (GNRP), is defined by the Act as follows:

As used herein, a General Neighborhood Renewal Plan means a preliminary plan (conforming, in the determination of the governing body of the locality, to the general plan of the locality as a whole and to the workable program of the community meeting the requirements of section 1451 of this title) which outlines the urban renewal activities proposed for the area involved, provides a framework for the preparation of urban renewal plans and indicates generally, to the extent feasible in preliminary planning, the land uses, population density, building coverage, prospective requirements for rehabilitation and improvement of property, and any portions of the area contemplated for clearance and redevelopment.

The GNRP serves only as a starting point for planning decisions. The more detailed Urban Renewal Plan specifies the exact properties to be either cleared or rehabilitated; additionally, this plan serves as a basis for funding the renewal program. The Act provides:

(b) “Urban renewal plan” means a plan, . . . for an urban renewal project, which plan shall be consistent with definite local objectives respecting appropriate land uses, improved traffic, public transportation, public utilities, recreational and community facilities, and other public improvements; and (2) shall be sufficiently complete to indicate, to the extent required by the Secretary for the making of loans and grants under this subchapter, such land acquisition, historic and architectural preservation, demolition and removal of structures, redevelopment, improvements, and rehabilitation as may be proposed to be carried out in the urban renewal area, zoning and planning changes, if any, land uses, maximum densities, and building requirements.

In 1961 the Cleveland City Planning Commission and the City Council approved a GNRP and an Urban Renewal Plan for certain blighted areas of the city. The GNRP encompassed an area in excess of 1,600 acres, but it was broken down into subareas I, II, III and IV, indicating the order in which the city would activate renewal plans within the GNRP area. Project I, the University-Euclid Urban Renewal Area Project, covering approximately one-half of the GNRP, was the only project ever adopted by the council, and the only one that was ever funded. A map of both the GNRP and Project I areas was submitted to the government along with the city’s application for financial assistance ; shaded areas indicated those properties that the city considered for possible appropriation. None of the properties involved in this appeal was designated on the map as a candidate for acquisition.

As already mentioned, the affidavit of Mr. Pizzedaz stated that none of the properties involved in this appeal had ever been designated for appropriation for the urban renewal project nor had any been the subject of an eminent domain proceeding. In his Supplemental Complaint, appellee alleged that the city “directed to the owners and occupants of specific real properties notice of the alleged intention of the defendant to acquire such real properties either by negotiation or by means of appropriate legal action.” In the following paragraph appellee continued, “notices of the nature referred to in the preceding paragraph were forthwith directed by defendant to the occupants and residents of almost all of the properties within the Hough area owned by plaintiff’s bankrupt.” When asked by interrogatory to specify the properties where these notices were received, the appellee listed only fourteen parcels — thirteen of which had already been acquired by the city through either negotiation or appropriation and are not involved in this appeal. One parcel had apparently been the subject of an inquiry by Liberty Mortgage to the City of Cleveland. A letter from the Project Director of the University-Euclid Urban Renewal Project to Liberty Mortgage stated that the property at 1628 Ansel Road “is being proposed for acquisition under a plan change.” Mr. Pizzedaz’s affidavit states that no eminent domain proceedings were ever initiated as to this property. No further explanation of this letter appears in the record. With the exception of this one letter the record is barren of any affidavits, interrogatories, or evidence of any kind that would support the allegations of appellee’s complaint that the City began condemnation proceedings against those properties of Liberty Mortgage involved in this appeal. Quite the contrary, there is substantial support for the conclusion that the City neither intended to take, nor took, any action against any of these 87 properties.

This Court is no stranger to the troublesome legal issues that arise when cities undertake ambitious programs of urban renewal. In Foster v. Herley, supra, discussed at length above, we held that a taking may occur even before the city completes the formal procedures usually required before it may actually acquire title to property by condemnation. See also Madison Realty Company v. City of Detroit, 315 F.Supp. 367 (E.D.Mich.1970). Once urban renewal is announced and certain areas are designated for condemnation, predictable changes will occur in the property to be appropriated. Since the owner is forbidden to make improvements, the property inevitably begins to deteriorate. Tenants move out, often leaving empty buildings for vandals who hasten the decline of the neighborhood. Mortgage money disappears while insurance rates soar. Whatever value the property may have had prior to the beginning of the project is rapidly diminished. Foster was a recognition that an urban renewal authority, by abusing its power of eminent domain, may cause such substantial damage to property that it is actually “taken” within the meaning of the fifth and fourteenth amendments.

But, lest Foster be misinterpreted, it should be read in conjunction with Woodland Market Realty Company v. City of Cleveland, 426 F.2d 955 (6th Cir. 1970). There, we considered whether property immediately adjacent to that to be appropriated, is actually taken because of a substantial drop in value caused by the urban renewal project. In finding there was no taking, we said:

The action of the City has resulted in no diminution of the plaintiff’s rights in its property. Its leasehold estate has remained intact. What has altered is the character of the neighborhood, not the character of the plaintiff’s leasehold interest. Actions done in the proper exercise of governmental powers which do not directly encroach upon private property, though they may impair its use or value, do not amount to a taking of such property within the meaning of the constitutional provision that private property shall not be taken for public use without just compensation. 426 F.2d at 958.

Woodland Market acknowledges the authority of the legislative body to draw its own lines around the property it wishes to condemn by eminent domain. And the crucial geographic boundary is not that around the general planning area or the project area, but around the property that the city has demonstrated that it intends to appropriate. Absent the abuse of eminent domain found in Foster, including some action by the city indicating that the particular piece of property at issue is to be appropriated, economic loss caused by urban renewal does not constitute a taking within the meaning of the fifth and fourteenth amendments.

We are unable to find any judicial support for the broad proposition advanced by appellee in his brief that there is an unconstitutional taking whenever a city in the conduct of its urban renewal program commits acts that lead to the devaluation of property. The converse of this proposition is particularly true where the city, as in this case, has neither initiated eminent domain proceedings, evidenced any intent to begin procedures, or physically invaded the property. In fact, our reading of the cases indicates that this Court in Foster possibly broke new ground when it held that abuse of the condemnation authority could constitute a taking. More typically, courts have found that although there can be no taking until the condemnation process was completed, factors such as governmental delay and inaction may be considered in setting the crucial date for valuing the property. See City of Cleveland v. Carcione, 118 Ohio App. 525, 190 N.E.2d 512 (1963) ; City of Buffalo v. J. W. Clement Company, 28 N.Y.2d 241, 321 N.Y.S.2d 345, 269 N.E. 2d 895 (1971). Also, see, generally, Recent Development, 72 Colum.L.Rev. 772 (1972). The rationale of these cases is that a de facto taking “requires a physical entry by the condemnor, or a physical ouster of the owner, or a legal interference with the physical use, possession or enjoyment of the property or legal inr terference with the owner’s power of disposition of the property.” City of Buffalo v. J. W. Clement Co., supra, 321 N.Y.S.2d at 357, 269 N.E.2d at 903.

Appellee has cited language in his brief to the effect that governmental action, without any legal proceedings, may constitute a taking. A closer examination of these cases reveals that they invariably arose in the context of either a physical invasion or physical restraint on the land — for example, repeated flooding, Pumpelly v. Green Bag Co., 80 U.S. (13 Wall.) 166, 20 L.Ed. 557 (1871) and United States v. Cress, 243 U.S. 316, 37 S.Ct. 380, 61 L.Ed. 746 (1917); invasion of the airspace, United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946), and Griggs v. Allegheny County, 369 U.S. 84, 82 S.Ct. 531, 7 L.Ed.2d 585 (1962); and restriction of access, Crawford v. Village of Delaware, 7 Ohio St. 460 (1857), and State ex rel. McKay v. Kauer, 156 Ohio St. 347, 102 N.E.2d 703 (1951). Neither of these cases nor any of the others cited by appellee supports his contention that, absent physical invasion, or any action on the part of the city to appropriate the Liberty Mortgage property, a taking has occurred because urban renewal activities of the city may have caused a decrease in property values.

The current posture of this case is an interlocutory appeal from an order denying summary judgment. We recognize the discretion of the district court in deciding motions under Rule 56 of the Federal Rules of Civil Procedure, see Williams v. Howard Johnson’s Inc. of Washington, 323 F.2d 102 (4th Cir. 1963), and we are loathe to overrule the court below when it has found that there is a genuine issue of material fact. Yet when a motion for summary judgment is filed by a defendant supported by affidavits and answers by plaintiff to interrogatories, showing that there is no genuine issue of material fact, with no counter affidavits or other materials being filed by the plaintiff, as was the case here, summary judgment should be granted. See Liberty Leasing Co. v. Hillsum Sales Corp., 380 F.2d 1013 (5th Cir. 1967) ; Surkin v. Charteris, 197 F.2d 77 (5th Cir. 1952). It is significant that although the district court denied summary judgment as to the 87 properties, it did not indicate what facts it believed were in dispute.

However, absent the extreme circumstances present in the Foster case, but lacking here, we think the true rule is that there is no de facto taking of properties which have decreased in value because of an urban renewal project unless there is a physical invasion, damage or injury, or a restraint of some type, or action by the City to appropriate such properties. Essentially this was the holding of this Court in Woodland Market Realty v. City of Cleveland, supra, and the well-reasoned opinion of New York’s highest court in City of Buffalo v. J. W. Clement Company, supra, as well as many other cases.

The order of the district court denying the City’s motion for summary judgment with respect to the 87 properties involved in this appeal is therefore reversed. The action is remanded to the district court for entry of an order granting the said motion and dismissing the action.

      . Originally the United States was also a party; however, the action against the government was dismissed by the district court early in the proceedings. That dismissal is not involved in this appeal,

      . Twenty-nine properties formally belonging to Liberty Mortgage were acquired by the Oity either through negotiation, sheriff’s sale or appropriation. None of these properties is involved in this appeal.

      . The interlocutory order was properly certified for immediate appeal. An order permitting the appeal was entered by this Court.

      . We are aware that in Madison Realty Company v. City of Detroit, 315 F.Supp. 367 (E.D.Mich.1970), a district court of this Circuit said that “[¡initiation of eminent domain proceedings is not a requisite to a finding that a ‘taking’ has in fact occurred allowing for recovery by a property owner.” 315 F.Supp. at 371. However, that case, like all others, is limited to its particular facts. The district court found in that case that the property owner had been notified by city officials that his land w’ould be acquired. Furthermore, after considerable delay, the city initiated formal eminent domain proceedings.


source: Caselaw Access Project

author: MATTHES, Senior Circuit Judge. HEANEY, Circuit Judge PER CURIAM.

license: Public Domain

text:
    EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant, v. MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
    No. 73-1714.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 18, 1974.
    Decided Feb. 25, 1974.
    Rehearing and Rehearing En Banc Denied March 21, 1974.
    Susan J. Johnson, Appellate Div., Washington, D. C., for appellant.
    Burton M. Greenberg, St. Louis, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.

       Honorable Talbot Smith, Senior District Judge, Eastern District of Michigan, sitting by designation.

   MATTHES, Senior Circuit Judge.

The Missouri Pacific Railroad Company (Company) has established certain qualifications and standards for employment in entry-level clerical positions. One of these standards provides that the Company will refuse to hire any person convicted of a criminal offense other than a minor traffic violation. Buck Green’s application to the Company for employment as a night clerk was rejected on September 29, 1970, because Green’s application disclosed that he had been convicted in 1967 of failure to report for military induction, a felony.

On December 22, 1970, the Equal Employment Opportunity Commission (EEOC or Commission) received a letter from Green complaining of the Company’s rule prohibiting employment of convicted felons. On January 11, 1971, the Commission deferred the charge to the Missouri Commission of Human Rights. Green filed a verified formal charge with the EEOC on January 20, 1971, in which he contended that the Company’s rejection of his employment application constituted religious discrimination since his failure to report for induction had been premised upon an alleged conscientious objector status. Sixty-one days after the charge had been referred to the Missouri Commission of Human Rights, the EEOC assumed jurisdiction and undertook an investigation. On August 9, 1971, Green filed a perfected charge with the Commission alleging that he had been discriminated against “because of my religious creed (Conscientious Objector) and because of my race (Negro).” With regard to the racial allegation, Green elaborated:

I must point out that in addition to any simple racial discrimination on the part of MoPac, my conviction could conceivably have stemmed from my race in that there appears to be a tendency of local boards to deny black claimants conscientious objector classifications possibly because they may not be glib in articulating their beliefs, lack of a black local board member on the black registrant’s board, racial prejudice of those existing board members, and when subsequently placed into court — prejudice on the part of the sentencing judge in his failure to recognize any concept of patriotism but his own which is often quite limited.

At the close of the EEOC investigation, the Director of the St. Louis District Office made the following findings of fact, among others:

A policy of not hiring convicted felons has the effect of disqualifying a higher percentage of Negroes than whites.
The violation for which the Charging Party was convicted would not disqualify him from performing the job for which he applied nor would that violation based on religious convictions constitute a “risk” to the Respondent.

The Company duly filed exceptions to the District Director’s findings. The Commission concluded:

There is reasonable cause to believe that Respondent is in violation of Title VII of the Civil Rights Act of 1964 [42 U.S.C. § 2000e et seq.] by refusing to hire Charging Party and others similarly situated on the basis of their race (Negro), who have conviction records which are unrelated to the nature of Respondent’s business * * by inquiring into applicant’s arrest records, for such policy has a disproportionate impact upon minorities, * * * by maintaining segregated employment classifications which exclude Negroes on the basis of race * * *.

Attempts by the Commission at conciliation with the Company were unsuccessful, and on August 11, 1972, the District Director issued to Green, pursuant to his request, a notice of right to sue within ninety days. On November 7, 1972, Green filed a class action against the Company in the United States District Court for the Eastern District of Missouri alleging racially discriminatory employment practices in violation of Title VII and 42 U.S.C. § 1981, and seeking a declaratory judgment under 28 U. S.C. §§ 2201 and 2202.

On April 5, 1973, on the basis of Green’s charge of an unlawful employment practice, the Commission also filed suit against the Company in the Eastern District of Missouri, alleging violations of Title VII, including racially discriminatory practices and policies with respect to hiring, assignments, promotion, on-the-job training, and other terms, conditions and privileges of employment.

On April 13, 1973, District Judge Webster (now Circuit Judge) limited Green’s class action to “those Negroes who have been denied employment at defendant’s General Office because of defendant’s alleged policy of refusing to hire persons arrested and convicted of a criminal offense other than a minor traffic violation.” Green’s complaint had attempted to include black employees of the Company who allegedly suffered from the maintenance of a racially segregated work force and racially segregated job classifications within the class.

On July 2, 1973, the Company filed a motion to dismiss the Commission’s suit on the ground, among others, that the court lacked subject matter jurisdiction in view of Green’s previously-filed suit involving substantially the same allegations and arising from the same charge filed with the EEOC.

The Commission, in its memorandum in opposition to the motion to dismiss, argued that the Commission’s suit raised broader issues than those raised in the private suit.

The district court, Judge Wangelin, granted the motion, holding:

To dismiss the instant action would not deprive the plaintiff a remedy as 42 U.S.C. § 2000e-5(f) (1) provides for the Commission’s intervention in a civil action brought by the aggrieved party.
The Court can find no purpose in proceeding with two independent lawsuits which arise from the same fact situation, present identical issues and only differ as to the prayer for re-, lief. Therefore, this Court will dismiss the instant action without prejudice and the plaintiff may make application to intervene in Cause No. 72 C 702(4).

The Commission has appealed from the order of dismissal.

This case, and others recently decided by the District Court for the Eastern District of Missouri, focus upon the proper scope of the Commission’s enforcement powers under the newly-enacted Equal Employment Opportunity Act of 1972 (otherwise referred to as the 1972 Amendments to Title VII of the Civil Rights Act of 1964) (effective March 24, 1972). More specifically, we must decide whether the prior filing and prosecution of a private suit by the charging party pursuant to a “right to sue” notice preclude the later filing of an action by the Commission grounded upon the charging party’s complaint and seeking to enlarge and broaden the issues.

For reasons stated below, we affirm the dismissal of this action.

Section 706(f)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(1), as amended by the Equal Employment Opportunity Act of 1972, provides in pertinent part:

If within thirty days after a charge is filed with the Commission or within thirty days after expiration of any period of reference under subsection (c) or (d) of this section, the Commission has been unable to secure from the respondent a conciliation agreement acceptable to the Commission, the Commission may bring a civil action * * *. The person or persons aggrieved shall have the right to intervene in a civil action brought by the Commission * * *. If a charge filed with the Commission pursuant to subsection (b) of this section is dismissed by the Commission, or if within one hundred and eighty days from the filing of such charge or the expiration of any period of reference under subsection (c) or (d) of this section, whichever is later, the Commission has not filed a civil action under this section * * *, or the Commission has not entered into a conciliation agreement to which the person aggrieved is a party, the Commission * * * shall so notify the person aggrieved and within ninety days after the giving of such notice a civil action may be brought against the respondent named in the charge * * * by the person claiming to be aggrieved * * *. Upon timely application, the court may, in its discretion, permit the Commission * * * to intervene in such civil action upon certification that the case is of general public importance.

In general, the procedure may be summarized as follows:

1. A charge must be filed within 180 days after the occurrence of an alleged unlawful employment practice.

2. If the Commission finds reasonable cause to believe that the charge is true, and conciliation attempts prove unsuccessful, the Commission may bring suit against the respondent within 180 days of the filing of the charge. The charging party shall have the right to intervene in the Commission’s suit.

3. If the Commission fails to file an action within 180 days, it shall notify the charging party.

4. Within 90 days after receipt of notice, the charging party may bring a civil action against the respondent. Should a private action be brought, the Commission may intervene, in the discretion of the court, upon certification that the case is of general public importance.

The scheme of the statute itself, as thus described, negates the Commission’s double-barreled approach. Once either the Commission or the charging party has filed suit, § 2000e-5(f) (1) speaks only in terms of intervention— the absolute right of the charging party to intervene if the Commission elects to file suit within 180 days; the permissive right of intervention on the part of the Commission in the private action. The statute cannot be read to warrant duplicitous lawsuits when both actions find their genesis in one unlawful employment practice charge.

Moreover, although “the legislative history of Title VII is in such a confused state that it is of minimal value,” Sanchez v. Standard Brands, Inc., 431 F.2d 455, 460 (5th Cir. 1970), the record does reveal that Congress was concerned about duplicitous suits. The original House and Senate bills which led to the adoption of the 1972 amendments authorized the Commission to prosecute violators of Title VII through cease and desist orders. When the Act was passed by both Houses, court enforcement provisions had been substituted for the cease and desist powers. The House report discusses the interrelationship between the originally-proposed cease and desist powers of the Commission and the private right of action as follows:

The committee was concerned about the interrelationship between the newly created cease and desist enforcement powers of the Commission and the existing right of public action. It concluded that duplication of proceedings should be avoided. The bill, therefore, contains a provision for termination of Commission jurisdiction once a private action has been filed (except for the power of the Commission to intervene in the private actions). It contains as well a provision for termination of the right of private action once the Commission issues a complaint or enters into a conciliation or settlement agreement which is satisfactory to the Commission and to the person aggrieved.

H.R.Rep.No.92-238, 92d Cong., 2d Sess., 1972 U.S.Code Cong. & Admin.News at 2148.

Finally, we observe that in EEOC v. Cleveland Mills Co., 364 F.Snpp. 1235, 1238 (W.D.N.C.1973), the Commission apparently agreed with our view that the statute does not contemplate duplicitous suits:

The Commission admits that it has no power to institute an action during the ninety day period in which the aggrieved party has the exclusive right to sue. However, it contends that tbe power to institute action reverts to the Commission after the expiration of the ninety day period if the aggrieved [party] has not filed suit.

(Emphasis supplied.)

Thus we conclude that, once the charging party has filed suit pursuant to a “right to sue” notice, the Commission is relegated to its right of permissive intervention. We are fully confident that Judge Nangle, before whom the Green case is now pending, in the exercise of his sound discretion, will permit intervention and enlargement of the scope of the action by the Commission if necessary to the rendering of full and complete justice.

The judgment of dismissal is affirmed.

HEANEY, Circuit Judge

(concurring) .

I would go a step further than the majority and direct, rather than suggest, that the scope of the Green case be broadened to include those issues raised by the Commission. In my judgment, our opinions in Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970), and Reed v. Arlington Hotel Company, Inc., 476 F.2d 721 (8th Cir. 1973), require this result. I would take this course not because I expect the District Court to reject the suggestion of the majority but rather because the precedential value of its decision would be enhanced were we to require what our prior cases dictate.

In Parham, we said:

* * * [A] single charge of employment discrimination under Title VII found by the EEOC to rest upon reasonable grounds may serve to launch a full-scale inquiry into the alleged unlawful motivation in employment practices. * * * (Citation omitted.)

Parham v. Southwestern Bell Telephone Co., supra at 425 of 433 F.2d.

We applied the same reasoning in Reed:

* * * In Parham, we allowed an individual who claimed that he had not been hired because of racial discrimination to bring a class action, attacking employment discrimination generally. It requires no extension of Parham to give a discharged employee the same privilege. As a black and a former employee, the plaintiff was subject to the same racially discriminatory policies as other members of the class. “The very nature of a Title VII violation rests upon discrimination against a class characteristic, * * (Citation omitted.)

Reed v. Arlington Hotel Company, Inc., supra at 723 of 476 F.2d.

If, as we held in the two above cited cases, an individual — through a class action — may attack employment discrimination generally, the Commission charged with the broader responsibility of eliminating discriminatory employment practices, must also be allowed to bring the broader issues before the court.

ON PETITION FOR REHEARING

PER CURIAM.

In its petition for rehearing, the Commission apparently interprets our opinion as implicitly holding that the Corn-mission is without power, regardless of the circumstances, to bring an independent suit more than 180 days after the filing of the charge upon which the suit is based. A careful study of our opinion will disclose that we neither considered nor decided this question. Our opinion is necessarily confined to the rather narrow issue of whether the Commission is entitled to bring an independent action after the charging party has already filed suit pursuant to the statute.

Subject to the above clarification, the petition for rehearing by the panel is denied.

      . In Crump v. Wagner Electric Corp., 369 F.Supp. 637 (E.D.Mo.1973), Chief Judge Meredith dismissed a suit brought by the charging party after the Commission had filed suit, noting that the private party could obtain relief by intervention in the Commission action.
      In EEOC v. Cronin 370 F.Supp. 579 (E. D.Mo.1973), Judge John K. Regan, pre-sentecl with the identical issue before us, dismissed the Commission’s action without prejudice to its right to file an application to intervene in the pending private action. Accord, EEOC v. Union Oil Co. of California, 369 F.Supp. 579 (N.D.Ala.1974).

      . On March 24, 1974, the power of the Attorney General to bring pattern or practice suits will be transferred to the Commission, thereby strengthening its enforcement arse-ual. Civil Bights Act of 1964 § 707, 42 U. S.C. § 2000e-6, as amended by the Equal Opportunity Act of 1972.


author: FAIRCHILD, Circuit Judge.

text:
    UNION CENTRAL LIFE INS. CO., INC., Plaintiff, v. HAMILTON STEEL PRODUCTS, INC., et al., Defendants. Tom WEBB et al., Defendants-Appellants, v. Agnes O’BRIEN et al., DefendantsAppellees.
    No. 72-1219.
    United States Court of Appeals, Seventh Circuit.
    Argued April 6, 1973.
    Decided March 11, 1974.

      Gilbert Feldman, Chicago, 111., for appellant.
    Patrick W. Dunne, George Kaye, Chicago, 111., for appellee.
    Before FAIRCHILD, STEVENS, and SPRECHER, Circuit Judges.
   FAIRCHILD, Circuit Judge.

This is an appeal from orders awarding fees to two attorneys in an inter-pleader action to determine rights in a fund. Each attorney appeared for named defendants who were, respectively, sued as representatives of a class of claimed beneficiaries of the fund. The fees were ordered paid out of the fund. The appeal has been taken by other named defendants who also purport to represent some or all of the beneficiaries.

Much of the relevant history of the case appears in opinions on earlier appeals in the same case, 374 F.2d 820 (7th Cir. 1967), and 448 F.2d 501 (7th Cir. 1971); and in a related ease, United Steelworkers of America, A.F.L.-C.I.O. v. Hamilton Steel Products, Inc., 404 F.2d 878 (7th Cir., 1968).

Hamilton Steel Products, Inc., on the verge of bankruptcy, terminated employment of its factory employees in late 1964, and failed to make the payment required December 15, 1964 on an annuity policy maintained as a means of funding its pension plan. Union Central Life Ins. Co., the insurer, brought this interpleader action September 2, 1965 to determine the rights in funds deposited with it by Hamilton.

Hamilton and the bankruptcy trustee were defendants. Other named defendants were sued in their own behalf and as representatives of others in several classes. Class B included a number of Hamilton elnployees in whom certain Prior Benefits under the policy had already been vested, payable upon termination of employment. Ultimately all members of Class B were named defendants. Class C included all factory employees of Hamilton as of December 15, 1964; Class D, all who had been terminated on certain dates shortly before December 15. The pension plan had been the product of collective bargaining with the Steelworkers union. Officers of the local and a district representative were named as defendants in their own behalf and as representatives of union members and officers as a class. All members of Class B were members of Class C, and, all members of Classes B, C, and D were members of the union or at least employees in the unit for which the union was the collective bargaining representative.

On September 20, 1965, attorney Kaye, one of the attorneys whose fees are at issue, entered an appearance for 18 (later 20) of the 32 Class B defendants, and three days later for the named defendants representing Class C. On September 27, 1965, attorneys Cornfield and Feldman (who are attorneys for the union) entered an appearance for the named union officer defendants. No one then appeared for the defendants representing Class D.

There seems to have been universal agreement that the members of Class B were entitled to receive the payment of Prior Benefits. On April 28, 1966 the district court ordered payment to those members of Class B for whom Kaye had appeared. Kaye had an agreement with some, apparently 20, of the members of Class B that he would be paid a fee equal to 20% of the aggregate recovery provided it exceeded $25,000. At one point he indicated he would be willing to accept a fee of 10% of the entire Class B fund, apparently on the supposition that Class B recovery would be about $45,000 and 10% thereof would be almost as much as 20% of $25,000.

The union attorneys, in the name of the union, asserted that the limitation of the award to those members of Class B represented by Kaye was discriminatory, and moved that the decree be vacated or amended. A resulting contest over the union’s role in the enforcement of the rights in the fund of those included in the bargaining unit led to the union’s unsuccessful attempts to intervene in its own name in this action, Union Central Life Ins. Co. v. Hamilton Steel Products, Inc., 374 F.2d 820 (7th Cir., 1967), and to commence a separate action for declaratory judgment. United Steelworkers v. Hamilton Steel Products, Inc., 404 F.2d 878 (7th Cir., 1968). In any event, the district court ultimately, June 9, 1967 (over opposition of Mr. Kaye) amended its first decree so as to require payment of Prior Benefits to all members of Class B, and these amounts were later paid. The record does not disclose further reference to attorney Kaye’s agreement with some of the members of the group for a contingent fee for his services as to Class B.

On March 21, 1969, attorney Dunne, whose fees are also presently at issue, appeared for the defendants named as representatives of Class D.

Originally the trustee in bankruptcy had claimed all the fund remaining after payment of Prior Benefits to Class B. On October 1, 1969, however, without any submission of that issue to the court for decision, he modified his position and apparently conceded that 27 (later 25) members of Class C who had completed 15 years of service for Hamilton by December 15, 1964 had rights in the fund even though they had not attained the age requirement of 65 years. He asserted the right to any excess remaining after satisfying the rights of the 15 year group. The union officer defendants agreed that the 15 year group should have prior claim, but contended that any excess should go to the benefit of the other employees. It developed that if the fund were to be applied first to fulfill the anticipated pension rights of the 15 year employees, there would be a deficit rather than a surplus.

It seems, at least by hindsight, that the 15 year group should have been treated as a separate class or sub-class, at least from that time forward. We shall refer to this group as Subclass C-l and the remainder of Class C as Subclass C-2. The difficulty of simultaneous representation of Subclass C-l and Subclass C-2 was later recognized by this court. “Both the union representatives and the Trustee have capably and strenuously, however, advanced the interest of [Subclass C-l], without which we might well have been of the opinion that their interests had not been fairly represented.” 448 F.2d at 504.

On February 27, 1970, the district court entered judgment awarding the then balance of the fund, $119,339.02 to Subclass C-l, divided ratably according to the difference between the present actuarial value of anticipated monthly benefits and the prior benefits already received. Kaye and Dunne filed appeals on behalf of their clients, although, of course, Kaye’s clients were nominally the representatives of Subclass C-l as well as C-2. This court reversed the award of the entire balance to Subclass C-l, and remanded for recalculation of benefits in which all members of Classes C and D would share. Appellants were allowed to recover costs on appeal from the fund.

On remand the parties were able to agree on a formula for calculation of ratable shares in the fund (with a minimum payment of $50 to any individual), except that the union officer defendants opposed the award of attorney fees to Kaye and Dunne and subtracting such amount from the entire fund before computing the respective shares. The district court, without adverting to the objections, allowed Kaye fees of $32,210.50 and unreimbursed expense of $154.00, allowed Dunne fees of $8,000.00, and expense of $31.50, and subtracted these amounts from the fund before computing the shares of the beneficiaries. The fund had increased by the accrual of interest.

The result of the appeal and the impact of the fees may be summarized as follows:

The total fees awarded to both attorneys amounted to 31% of the fund, and the share of each beneficiary was thus reduced by that percentage. (Apparently those in Subclasses C-l and C-2 who were also in Class B received their Prior Benefits without reduction for attorneys’ fees, so far as the record discloses.) The fee awarded to Kaye was equivalent to approximately 45% of the total share of Subclass C-2, and the fee awarded to Dunne was more than three times the total share of Class D.

There are several general principles which must be applied in determining the propriety and amount of allowance of attorneys’ fees out of a fund or against an adversary.

There may be an allowance of expenses to a plaintiff who “has successfully maintained a suit, usually on behalf of a class, that benefits a group of others in the same manner as himself.” Mills v. Electric Auto-Lite, 396 U.S. 375, 392, 90 S.Ct. 616, 625, 24 L.Ed.2d 593 (1970). Anno.: Attorneys’ Fees in Class Actions, 38 ALR3d 1386. A party who has produced or preserved a common fund for the benefit of a group may be reimbursed for expenses of litigation. Mills, p. 392, 90 S.Ct. 616. Anno.: Right of Counsel Fees in Federal Court, 8 L.Ed.2d 894, 905.

“In the sound and cautiously exercised discretion of the court, and not as a matter of right, attorneys’ fees and other expenses reasonably and necessarily incurred by all necessary parties to litigation may be allowed and properly charged to the trust estate where such litigation, with respect to substantial and material issues, is necessary in order to resolve the meaning and legal effect of ambiguous language .used by the settlor in the trust instrument, if an adjudication thereof is essential to a proper administration of the trust, and if, without unnecessary expense or delay, the litigation is conducted in good faith for the primary benefit of the trust as a whole.” In re Atwood’s Trust, 227 Minn. 495, 35 N.W.2d 736, 740 (1949).

“Though the right to charge counsel fees as costs out of the fund or estate in controversy, in a proper case, is well established, it is recognized that the practice of allowing such fees is subject to great abuse and should be exercised with the most jealous caution in regard to the rights of litigants to avoid bringing the administration of justice into reproach.” 20 Am.Jur.2d, Costs, § 83.

The amount of benefit to those whose interests are to be charged is one of a number of appropriate considerations. 20 Am.Jur.2d, Costs, § 78. Anno.: 38 ALR3d 1386, 1404.

The fund in this case was created and brought into court for determination of rights by the interpleader plaintiff, Union Central. Although the action was pending for a long period, there were no issues of fact to be tried. All necessary facts appear to have been provided from the records of Hamilton, and all computations appear to have been made by representatives of Union Central. Initially, the trustee of the bankrupt estate claimed the fund, but he ultimately surrendered that position without any consideration or decision by the court of his claim. There is nothing in the record to suggest that his change of position was accomplished by attorneys Kaye or Dunne. Accordingly the charge of attorneys’ fees against the fund can not be justified on the theory that the attorneys’ efforts created the fund or preserved it for the employee-beneficiaries.

Mr. Kaye represented certain claimants throughout the life of the action, Mr. Dunne only at a later interval. The presence of representatives may arguably have been necessary under the theory of Atwood’s Trust, supra,. Although this might justify an allowance of some amount of attorneys’ fees out of the fund, particularly if the share of the fund accruing to the respective classes of beneficiaries was insufficient, the value of the contribution made by the respective services must be closely scrutinized. Attorneys for the union officer defendants were present at all times, and there is no reason to doubt the good faith of their interest in a fair and equitable distribution of the fund among employees as beneficiaries, nor of their desire to see the distribution accomplished with as little expense to the employee beneficiaries as possible. Since the preference of the union attorneys for arbitration was determined to be legally unsound, the efforts of counsel who resisted the position of the union officer defendants in the district court and on appeal must be recognized as valuable, but counsel for Union Central and the trustee, as well as Mr. Kaye, provided those services.

Mr. Kaye and Mr. Dunne both sought to have the benefit of the fund spread beyond Subclass C-l. They succeeded in this court on the 1971 appeal. Except, however, for conflict between Subclass C-2 and Class D, they had a common interest and their efforts were duplicative. In prevailing, Kaye obtained a share for Subclass C-2, amounting to $76,628.59 and Dunne a share for Class D, amounting to $2,626.22, taken away in both instances from Subclass C-l, to which the district court had awarded the entire fund.

We must and do conclude from the record that the services rendered by Kaye and Dunne on the 1971 appeal and in the district court immediately preceding, were in great measure duplicative of each other, that the district court erred in failing to consider the objection to fees raised by counsel for the union officer defendants, and that the allowances made were excessive.

The petition for fees for the services of Mr. Dunne included 205.45 hours, the allowance of $8,000 being for 200 hours at $40 per hour. 65.55 hours were charged from his first conference in the matter (January 1, 1969) to February 27, 1970, when the district court entered judgment in favor of Subclass C-l; 135.90 hours were charged during the pendency of the appeal; and 4.50 hours thereafter. A fee of three times the share recovered for Class D can not, in our opinion, be justified.

The petition for fees submitted by Mr. Kaye sought $32,219.50. In view of the very meticulous inclusion of many time charges for telephone conversations with pensioners and other attorneys, we think that a “catchall” item of 38 hours “Miscellaneous unrecorded calls from pensioners and attorneys at % hr. per mo. for 76 mos.” (for which $1520 was charged) must be eliminated. We have also eliminated an item of 24 hours, spread over four days, for “Preparing petition”, which must have been, from the dates, the petition for fees, and for which $960 was charged. It consisted of 17 pages of itemized services charged, presumably taken from records, a one page petition, and copies of three invoices, and of a bar association suggested minimum fee schedule.

From September 14, 1965 to April 28, 1966, at the time of the decree in favor of Class B members represented by him, he charged for 47.20 hours. From then until May 26, 1967, when the mandate was issued after the first appeal, he charged for 139.35 hours. From then until February 27, 1970, the date of the district court judgment in favor of Subclass C — 1, he charged for 173.80 hours. From then until November 1, 1971, the date of the mandate on the 1971 appeal, he charged for 149.60 hours, and thereafter he charged for 10.25 hours.

Our examination of the record leaves us with the firm impression that the time charges were over generous. Mr. Kaye did not confine himself to the $40 per hour fee claimed by and awarded to Mr. Dunne, but charged higher rates for court appearances and certain types of conferences and the like. The total of all the hours claimed, after eliminating the item for miscellaneous phone calls and the item for preparing the petition for fees, was 520.20. At the $40 hourly rate used by Dunne, this would have amounted to $20,808, rather than the amount claimed.

We note the character of the fund involved as earned benefits of factory employees of a bankrupt employer, and we observe the admonition that charges of attorneys’ fees against any fund should be scrutinized “with the most jealous caution.”

Concluding as we do, that the awards were clearly excessive, we reach the question whether the new allowance should be made in the district court, with the advantage of further hearing, or by this court, with the advantage of recent study of the record. Since the support for the claim for fees is entirely documentary, and since a large share of the services were performed in this court, we have decided to make the decisions here.

We conclude that Attorney Kaye, who appeared throughout the pendency of the action, including two appeals, is awarded $10,000 as his total fee, with $2,000 thereof charged ratably against the individual shares of all members of Class C and $8,000 ratably against the individual shares of the members of Subclass C-2. Since the fee originally awarded has been paid to him, the difference must be refunded, with interest at the legal rate. Attorney Dunne, who appeared later in the action and in the 1971 appeal, for the representatives of Class D, which Class recovered a share of $2626.22, is awarded $2,500 as his total fee. Since $820.48 has already been taken out of the total share of Class D, and since the amounts paid to the members of that Class were in all but two cases the $50 minimum, the distribution to Class D is not to be changed. The $1,679.-52 balance of his allowed fee is to be charged ratably against the individual shares of all members of Class C. Refund of the difference with interest will also be required from him.

A new determination of the amounts of the individual shares of members of Class C is to be made in the light of the adjusted charges for attorneys’ fees, and the amounts refunded are to be distributed to the members of Class C accordingly.

The clerk of this court is directed to enter judgment reversing the judgment appealed from insofar as it awarded attorneys’ fees, and remanding the cause with directions to require refunds and make distributions consistent with this opinion.


author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Keith WALKER, d/b/a Homefinder’s, Plaintiff, Appellant, v. PROVIDENCE JOURNAL COMPANY et al., Defendants, Appellees.
    No. 73-1308.
    United States Court of Appeals, First Circuit.
    Argued Dec. 5, 1973.
    Decided Feb. 27, 1974.
    Rehearing Denied March 14, 1974.

      Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., Max D. Stern, Stern & Shapiro, Boston, Mass., and Anthony F. Pennacchia, Providence, R. I., were on brief, for appellant.
    Knight Edwards, Providence, R. I., with whom Edward F. Hindle, Jonathan E. Cole, Edwards & Angelí, Michael DeFanti, Hinckley, Allen, Salisbury & Parsons, Providence, R. I., Richard J. Israel, Atty. Gen., and Dorothy A. Carr, Special Asst. Atty. Gen., were on briefs, for appellees.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.

      . Walker had not made any refunds to the policyholders before his sudden departure from Rhode Island and may have left other debts. These facts may explain both Campbell’s and Homefinders’ reluctance to become formally identified either with the Rhode Island franchise or this litigation.

   LEVIN H. CAMPBELL, Circuit Judge.

Homefinders of America, Inc. (Home-finders), a corporation with a primary place of business in Denver, Colorado, is engaged in the business of licensing or franchising independent businessmen in various states and Canada to use the Homefinders trademark and its distinctive method of providing information about housing vacancies. Keith Walker, the plaintiff, was the franchisee for Rhode Island.

Walker brought suit in the district court on March 5, 1973, alleging that the Providence Journal Co. (Journal), publisher of the only statewide morning and evening newspapers (which held at least two-thirds of all newspaper readership in the state) had violated the antitrust laws, 15 U.S.C. §§ 1 and 2, by attempting to fix the price Walker could charge for his service, by refusing to deal with him, and by attempting to monopolize the market in rental information services by eliminating competitors to the classified advertising section of the papers. Walker sought preliminary and permanent injunctive relief and treble damages. This appeal is from the court’s denial, after hearing, of a preliminary injunction upon the ground that there was no proper plaintiff before the court. We affirm, but for different reasons.

Walker commenced business in Rhode Island during 1972. Following the Homefinders format he sold for $20 a “policy” entitling its holder to use for a period of one year the services of Home-finders operations throughout the United States. A policy holder was granted access to listings of vacancies classified according to the requirements of different clients; the listings were in cata-logues permitting selection by location, price range, landlords’ willingness to take children, pets, etc. The office would supply this listing information upon telephoned or personal inquiry.

Walker culled many but not all his listings from classified newspaper ads. In turn Walker advertised his service in newspapers, primarily those of the Journal. Walker and the Journal signed a one-year classified advertising contract, which provided for a number of such ads daily. These ads were alleged to be crucial to the business in two ways: they attracted customers to buy Home-finders’ policies, and they attracted owners to list their vacancies with Homefin-ders.

After Walker began advertising in the papers several agencies received complaints about Walker’s service and forwarded them to the Journal. The Journal cancelled the advertising contract, but shortly thereafter reinstated it and the advertising continued until January 31, 1973. On February 1, 1973, the Journal wrote to Walker that it would take no more ads; it simultaneously cancelled the advertising contracts of two other firms in Rhode Island then providing rental listing services for which they charged prospective tenants. The letter of cancellation recited that the new policy was for the benefit of both the Journal and its readers. Attempts to negotiate a new format for the ads proved futile, although Walker allegedly offered to cast the ads in any nondeceptive form acceptable to the Journal and accurately describing the service rendered. Plaintiff claims that the Journal refused such offers.

The hearing on Walker’s prayer for preliminary injunction was had on May 10 and 11, 1973. Although his counsel appeared, Walker himself did not attend. Counsel revealed that, approximately two weeks prior to the date of the hearing (although about three months after the Journal had stopped running Walker’s ads and two months after the complaint had been filed), Walker had closed his doors and left the state. His franchise with Homefinders had thereupon, under its terms, been cancelled. Counsel stated that the litigation would go forward in the interest of a Mr. Glist, the president and principal stockholder of Homefinders, and of another stockholder. Later during the hearing, through statements of counsel and testimony of Glist himself, it was developed that Homefinders, after discovering Walker’s default, had named Charles R. Campbell, the Boston licensee, to operate the Rhode Island franchise temporarily. Campbell, however, had soon withdrawn, having found the cost of servicing existing policies to exceed any income that could be attracted without newspaper advertising, and having also found that without advertising it was difficult to attract the landlord listings necessary to furnish service to policyholders. Glist testified to Homefinders’ continuing desire to operate or license-a Rhode Island franchise whenever it became possible to advertise.

At the hearing plaintiff’s counsel took the position that Walker was no longer a party. But he insisted that F.R.Civ.P. 25(c) provided for a “substitution” of parties, and that Walker’s interest in an injunction had been “transferred” to Homefinders. When the hearing ended it was unclear whether Homefinders or Glist meant to intervene formally.

Twenty days after the hearing, but three months before the district court rendered its decision, plaintiff’s counsel filed two affidavits. One was from Walker, then residing with his wife’s family in Arizona, asserting his intention to continue as plaintiff and a desire to return to run the Rhode Island franchise, but only if financially able. The other was from Homefinders, stating that it had notified Walker that the Rhode Island franchise rights would be granted to him when and if “the franchise commences to operate again”, and stating an intention to retain Walker’s attorneys to litigate this case. Home-finders did not, however, move to be substituted or to join as a plaintiff (nor was joinder ordered by the court). In an amended complaint filed with leave in June, 1973, Walker carried on as the sole plaintiff.

The district court on September 6, 1973, dismissed the prayer for preliminary relief against the Journal after an opinion which ended with the somewhat enigmatic statement that there is “no proper plaintiff before the court in this action.” Although that ground, standing alone, might suggest that the entire action should be dismissed, the ruling related solely to Walker’s standing to seek a preliminary injunction. There is no indication that the court meant to foreclose Walker’s claim for damages or even, to the extent different facts might later be developed, his prayer for a permanent injunction. And because a more complete picture may yet be developed, our own present opinion, relating solely to the record as it now stands, should not be read to preclude the district court from reaching other conclusions concerning the interests and intentions of Walker (and Homefinders) should an expanded record warrant them.

But for present purposes, and on the existing record, we disagree with the district court’s conclusion, as we understand it, that preliminary relief had to be denied for want of a showing that there was a proper plaintiff. Although we think there are other reasons to deny preliminary relief, it should not have been denied on the ground stated.

An antitrust defendant does not necessarily avoid injunctive relief because it succeeds in driving a proper plaintiff out of business before the court has time to rule on a request for an injunction. Even though he is not currently conducting business in the market allegedly encumbered with the illegal conduct, an aggrieved party may retain a sufficient interest to seek and obtain injunctive relief against a violation of the antitrust laws. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969), on remand 418 F.2d 21 (7th Cir. 1970), rev’d on other grounds 401 U.S. 321, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971). He “need only demonstrate a significant threat of injury from an impending violation of the antitrust laws or from a contemporary violation likely to continue or recur.” Id. at 130, 89 S.Ct. at 1580. In Bus Employees v. Missouri, 374 U.S. 74, 78 (1963), it was held that even though the acts complained of no longer had a direct injurious effect, plaintiff could still seek an injunction where the dispute remained unresolved and there was “not merely the speculative possibility of . some future . dispute, but the presence of an existing unresolved dispute . . . . ”

It is true that the genuineness of Walker’s desire to return to the market from which the Journal’s conduct allegedly drove him is questionable. As for Walker, the alleged injury may be complete rather than continuing, thus rendering a preliminary injunction inappropriate as to him. While Walker asserted by affidavit a qualified intention to return to Rhode Island, we cannot say the district court was found to believe him.

Homefinders, however, remains subject to current injury from the alleged antitrust violation. As a transferee of Walker’s interest in the Rhode Island market, its position undergirds Walker’s. See F.R.Civ.P. 25(c). When the original complaint was filed Walker was still transacting business; although during the pendency of the action the Walker franchise “terminated” and was not “assigned” to Homefinders, Home-finders, as franchisor, automatically reacquired the rights it had ceded to Walker. It came again to possess the right to place or operate a franchise in Rhode Island. Homefinders, furthermore, was obligated, through its remaining franchisees, to service the policies. When the agreement was terminated, Walker was required to turn all his books and records over to Homefinders and Homefinders was entitled to use a $20,000 reserve fund, established by the agreement, to service Walker’s policies, and to charge Walker for any additional sums expended in so doing. Finally, once Homefinders succeeded to the right to conduct or relicense the Homefinders operation in Rhode Island, it also found itself saddled with the same burden borne by Walker — the inability to advertise the business in the Journal.

Rule 25(c) provides that in ease of any transfer of interest the action may be continued by the original party unless the court upon motion directs substitution or joinder. Homefinders should have moved for joinder, but its mere failure to do so was not fatal. See 3B Moore’s Federal Practice j[ 25.08. Homefinders has made known its interest in carrying forward the litigation. We would feel differently had the district court on reasonable terms ordered Homefinders to join, and had Homefinders declined. The court could have forced Homefinders either to join or forfeit any further claim of interest in the litigation. But it did not do so and, under Rule 25(c), Homefinders must be counted in determining whether there is a “proper plaintiff before the court.”

Walker and Homefinders together possess the totality of rights, duties and expectations concerning the operation of a Homefinders business in Rhode Island. These present interests, combined with the alleged past injuries, provided adequate standing to seek the issuance of injunctive relief should it otherwise have been appropriate.

While there was thus a showing of standing and interest sufficient to seek a preliminary injunction against the alleged antitrust violations, it does not follow that the district court erred in withholding relief, nor that we should direct that an injunction be entered. A plaintiff urging us to adopt such a course, notwithstanding the district court’s failure to reach its legal claims, has to show that, on the record as developed in the district court, it is virtually certain to prevail. Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113 (1st Cir.), cert. denied 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). It has not made such a showing.

Plaintiffs urge that the Journal has violated both §§ 1 and 2 of the Sherman Act. The § 1 claim fails because the record in this case does not disclose the presence of a “combination or conspiracy”; it appears, instead, that the Journal has acted on its own. Since a corporation cannot conspire with its own employees, Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd., 416 F.2d 71, 82-84 (9th Cir. 1969), cert. denied 396 U.S. 1062, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970), plaintiff must search elsewhere for a plurality of actors pursuing a “joint [and] collaborative” policy. United States v. General Motors Corp., 384 U.S. 127, 145, 86 S.Ct. 1321, 16 L.Ed.2d 415 (1966). The only other named defendants in this case have, so far as the record discloses, done no more than forward to the Journal complaints about Walker’s service. They have not embarked with the Journal upon a joint course of conduct. Nor is Walker helped by his imaginative theory that the Journal collaborated with Walker because, when the Journal refused to accept Walker’s ads, Walker ceased advertising. Although the conspiracy requirement of § 1 may have faded enough over the years to include even conspiracies with unwilling cocon-spirators, see Albrecht v. The Herald Co., 390 U.S. 145, 88 S.Ct. 869, 19 L.Ed. 2d 998 (1968), and conspiracies with customers, United States v. Parke, Davis & Co., 362 U.S. 29, 80 S.Ct. 503, 4 L.Ed. 2d 505 (1960), the doctrine is not yet so chimerical that the refusal of one party to deal or agree further with another can be construed as an agreement.

This leaves only the § 2 theory that the Journal was attempting to monopolize the Rhode Island market in “informational services.” This market presumably refers to the market for information about housing vacancies; we say presumably because plaintiffs have made no attempt to define the market, and have made no proof that the Journal has anything approaching a monopoly in it. Such careful definitions and proof are indispensable in antitrust actions. It may be that, utilizing the theory of. United States v. Otter Tail Power Co., 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973), plaintiffs will be able to demonstrate that the Journal has used an alleged monopoly in the newspaper or advertising markets to attempt to establish a monopoly in the market for vacancy information. Cf. Lorain Journal Co. v. United States, 342 U.S. 143, 72 S.Ct. 181, 96 L.Ed. 162 (1951). But we cannot say that plaintiff demonstrated on the record before the district court such a likelihood of success on the merits as would have required the issuance of a preliminary injunction.

Order denying preliminary injunction affirmed.

      . The paper allegedly attempted to fix a price of zero by conditioning advertising on Walker’s agreement to accept no payment from prospective tenants.

      . These agencies, and their directors, have also been named as defendants. They include the Better Business Bureau, the Rhode Island Consumer’s Council, and the Rhode Island State Department of Business Regulations. The Consumers’ Council was dismissed by stipulation because it possessed sovereign immunity; a motion to dismiss filed by Edwin P. Palumbo, director of the Council, has been denied.

      . One of the other firms changed its form of operation and began to collect a fee from landlords rather than prospective tenants; its advertisements have been reinstated.

      . There was no specific indication that new complaints about Walker’s service had led directly to the cancellation. Plaintiff claimed at oral argument that only five among Rhode Island’s approximately 6,000 policyholders are known to Homefinders to have complained. It has been intimated that termination might be related to the criminal prosecution initiated against Walker alleging that he acted as a real estate broker without a license. A similar prosecution in Maryland was dismissed. Real Estate Commission v. Phares, 268 Md. 344, 302 A.2d 1 (1973).

      . Our case of Mendez v. Bowie, 118 F.2d 435 (1st Cir.), cert. denied sub nom. Rios v. Bowie, 314 U.S. 639, 62 S.Ct. 76, 86 L.Ed. 513 (1941), is not to tbe contrary. Plaintiff sought an injunction against and damages for trespass to land, but sold the land after commencement of the suit. We held that the action for damages, but not for an injunction, survived the sale. However, plaintiff in Mendez sold his entire interest in the land; Walker and Homefinders filed affidavits indicating at least a conditional desire by Walker to resume the Rhode Island franchise and Homefinders’ willingness that he do so. Moreover, plaintiff’s sale did not deprive the buyer of standing to seek an injunction ; we pointed out that it was “apparent . . . that the purchaser of [the land] does not wish to become involved in this litigation . . ..” Homefinders, by way of contrast, does want to participate and actively supports the relief sought. Homefinders and, more marginally, Walker have a continuing interest in the injunctive claim, whereas only the buyer had such an interest in Mendez.

      . The fact that Homefinders has, instead of using these options, left the policyholders to shift for themselves without either service or refunds might militate against the grant of equitable relief, but it would not undermine Homefinders’ standing to seek it.

      . Homefinders’ desire to enter the market is' not so “speculative” that injunctive relief becomes inappropriate. Homefinders, through its franchisee, has already been a participant in the market and is therfore even more closely connected to it than was the plaintiff in Zenith, supra. Cases cited by the Journal such as Holiday Inns of America, Inc. v. B & B Corp., 409 F.2d 614 (3d Cir. 1969), are inapposite; they are trademark cases rather than antitrust, and involve plaintiffs with no past or current connection with the subject market. See Id. at 618 n. 13.

      . Under Rule 21 the court on its own initiative could have ordered the joinder of Home-finders. It should do so. Homefinders ought not to be permitted to occupy its present ambiguous role as a kind of nonlitigant litigant. 3A Moore’s Federal Practice ¶¶ 21.04 [1] & [2] ; Hackner v. Guaranty Trust Co., 117 F.2d 95 (2d Cir.), cert. denied 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520 (1941).


author: BRIGHT, Circuit Judge.

text:
    Frank L. PETERMAN, Plaintiff-Petitioner, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, and Hon. W. C. Stuart, Judge U. S. District Court for the Southern District of Iowa, Defendants-Respondents.
    No. 74-1006.
    United States Court of Appeals, Eighth Circuit.
    Submitted Feb. 12, 1974.
    Decided March 15, 1974.
    As Amended on Denial of Rehearing March 27, 1974.
    Certiorari Denied June 10, 1974.
    See 94 S.Ct. 3072.
    Lloyd E. Humphreys, and W. Howard Smith, Cedar Rapids, Iowa, for plaintiff-petitioner.
    Bennett A. Webster, Des Moines, Iowa, for defendants-respondents.
    Before GIBSON, HEANEY and BRIGHT, Circuit Judges.
   BRIGHT, Circuit Judge.

Plaintiff-petitioner, Frank Peterman, recovered a judgment of $35,000 in a civil action for bodily injuries against the defendant, Chicago, Rock Island & Pacific Railroad Company (Railroad). He brings this proceeding seeking an original writ of mandamus or certiorari from this court to annul the action of the trial judge in granting defendant a new trial. Because the record demonstrates that the trial court acted without jurisdiction in entering the new trial order, we grant the writ of mandamus.

The petition presented to us alleges that the trial court “had no power, authority, or jurisdiction to enter an order granting a new trial.” If established as true, this allegation furnishes a proper predicate for our review of the new trial order. A new trial order issued within the jurisdiction of the trial court is neither reviewable by appeal, see generally Richardson v. Communications Workers of America, 469 F.2d 333 (8th Cir. 1972), cert. denied, 414 U.S. 818, 94 S.Ct. 38, 38 L.Ed.2d 50 (1973), nor ordinarily by a mandamus proceeding, see General Motors Corporation v. Lord, 488 F.2d 1096 (8th Cir. 1973). A new trial order, nevertheless, is reviewable where it is shown that the trial court has acted outside its jurisdiction. Such review may be through appeal, see, e. g., Chicago and North Western Ry. v. Britten, 301 F.2d 400 (8th Cir. 1962); certiorari, see Demeretz v. Daniels Motor Freight, Inc., 307 F.2d 469 (3rd Cir. 1962); or mandamus, see General Motors Corporation v. Lord, supra. Accordingly, we examine the proceedings leading to the issuance of the new trial order in light of powers granted to district judges by the Federal Rules of Civil Procedure to vacate a jury verdict and order a new trial in a civil action.

Peterman’s action in the federal district court sought damages against the Railroad for bodily injuries and property damages which he sustained on July 5, 1969, in a highway-railroad crossing accident. A jury returned a special verdict finding Peterman and the Railroad each guilty of “negligence which was the proximate cause of the collision,” but finding further that the Railroad had the “last clear chance” to avoid the accident. Under instructions, the jury also returned a general verdict for the plaintiff assessing damages in the sum of $35,000. The trial court entered judgment on the verdict on July 19, 1973. Within 10 days thereafter the Railroad filed a motion for judgment n. O. v. pursuant to Fed.R.Civ.P. 50(b). As grounds for judgment in its favor the Railroad contended that no basis existed in the evidence upon which to submit to the jury the last clear chance issue and that since the jury in its special verdict found plaintiff guilty of negligence as the proximate cause of the collision, the Railroad was entitled to a judgment of dismissal consistent with its motion for a directed verdict made at the close of all the evidence. In its motion for directed verdict, the Railroad alleged also that the giving of the last clear chance instruction constituted error because the evidence showed there was insufficient time and distance for the defendant to avoid the accident after realizing plaintiff’s peril, but no claim was made that the instruction was erroneous in its form or content. Moreover, the Railroad did not file a motion for a new trial under Fed.R.Civ.P. 59, or seek a new trial as an alternate form of relief to judgment n. O. v., as is authorized by Fed.R.Civ.P. 50(b).

During the post-judgment hearing upon the n. O. v. motion held on September 11, 1973, more than 10 days after the verdict, the court, sua sponte, questioned whether the last clear chance instructions — which served to relieve plaintiff from the adverse consequences of his own contributory negligence-— were erroneous in form. Thereafter, in its order dated October 9, 1973, the trial court declined to grant judgment n. o. v., holding that under the evidence a jury could have found that the train engineer saw the plaintiff in a position of danger in sufficient time to have applied the brakes and slowed the train, thus avoiding the accident.

The trial court in granting a new trial reasoned as follows:

The viability of the last clear chance doctrine under the new statute was clearly established by the Iowa Supreme Court in Ackerman v. James (1972), 200 N.W.2d 818. This ease also treated last clear chance as an application of the law of proximate cause rather than an exception to the rule of contributory negligence.
“It would follow that if a trier of facts finds plaintiff’s negligence was a proximate cause of his injury, he cannot recover.” Ackerman v. James, supra at 830.
It is therefore apparent that instructions 21 and 22 contain erroneous statements of the law and that under the correct law the general verdict is contrary to the jury’s answer to interrogatory number 2.
The Court is of the opinion that these instructions and the interrogatories were confusing to the jury. It would not be fair or in the interest of justice to grant a judgment NOY because of the conflict between the general verdict and the special interrogatory in view of the erroneous instructions given. More properly the jury should have been told that plaintiff could recover even if he had been negligent if defendant’s negligence intervened between his negligence and the collision and became the sole proximate cause thereof. The interrogatories should have separately inquired whether plaintiff was negligent, and, if so, whether his negligence was a proximate cause of the collision.

The special verdict and the instructions, in part, are reproduced in the margin. 3****8

The sole issue before us is whether the district court possessed the authority to grant a new trial under the circumstances. We hold that in the absence of a motion for new trial made by the defendant within 10 days under Fed.R.Civ.P. 59(b), or in the absence of an order issued by the court within 10 days under Fed.R.Civ.P. 59(d), the trial court lacked any power to sua sponte grant a new trial because of any alleged error in the instructions to the jury.

Fed.R.Civ.P. 59(b) requires that a party serve a motion for new trial “not later than 10 days after entry of judgment.” Fed.R.Civ.P. 59(d) provides that “not later than 10 days after entry of judgment” the trial court “may order a new trial for any reason for which it might have granted a new trial on motion of a party.” Under Fed.R.Civ.P. 59(d), as interpreted by the courts, the power of the trial court, if acting on its own initiative, is restricted to the granting of a new trial within 10 days after entry of the judgment. Lapiczak v. Zaist, 451 F.2d 79 (2d Cir. 1971); Chicago and North Western Ry. Co. v. Britten, 301 F.2d 400 (8th Cir. 1962); Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961) ; Demeretz v. Daniels Motor Freight, Inc., 307 F.2d 469 (3d Cir. 1962) ; Kanatser v. Chrysler Corp., 199 F.2d 610 (10th Cir. 1952), cert. denied, 344 U.S. 921, 73 S.Ct. 388, 97 L.Ed. 710 (1953); Freid v. McGrath, 76 U.S.App. D.C. 388, 133 F.2d 350 (1942); Jackson v. Wilson Trucking Corp., 100 U.S.App. D.C. 106, 243 F.2d 212 (1957); see National Farmers Union Auto. & Cas. Co. v. Wood, 207 F.2d 659 (10th Cir. 1953).

Except for Lapiczak, the foregoing cases arose prior to the 1966 amendment to Fed.R.Civ.P. 59(d), which amendment specifically authorizes a district court, after giving the parties notice and opportunity to be heard on the matter, to “grant a motion for a new trial, timely served, for a reason not stated in the motion.” The 1966 amendment does not change the rule to be applied here for that amendment constitutes a change in the law granting authority to the trial judge to grant a new trial outside the limitation period for reasons initiated by the court, but only in the event a party has already served a motion for new trial. Lapiczak v. Zaist, supra. As explained in 6A Moore’s Federal Practice 59.01. [1] (1973), referring to the Notes of the Advisory Committee on Rules:

Effective July 1, 1966, subdivision (d) was amended to empower the court to grant a motion for a new trial, timely served, by an order made more than 10 days after the entry of judgment, based upon a ground not stated in the motion, as well as grant a new trial on its own initiative within the 10-day period.

It is respondent’s theory, however, that its filing of a motion for judgment n. o. v. under Fed.R.Civ.P. 50(b) empowered the court to grant plaintiff a new trial, even though the court found that the movant-railroad was not entitled to judgment in its favor. If a motion for judgment n. o. v. had been sustained, of course, Fed.R. Civ.P. 50(b) explicitly permits the court to “reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” As the Supreme Court has said in. Cone v. West Virginia Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 755, 91 L.Ed. 849 (1947):

Rule 50(b) contains no language which absolutely requires a trial court to enter judgment notwithstanding the verdict even though that court is persuaded that it erred in failing to direct a verdict for the losing party. The rule provides that the trial court “may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed.” This “either-or” language means what it seems to mean, namely, that there are circumstances which might lead the trial court to believe that a new trial rather than a final termination of the trial stage of the controversy would better serve the ends of justice. In short, the rule does not compel a trial judge to enter a judgment notwithstanding the verdict instead-of ordering a new trial; it permits him to exercise a discretion to choose between the two alternatives.

But by its very terms, Fed.R.Civ.P. 50(b) does not apply where, as here, the court denies the motion for judgment n. o. v. See Jackson v. Wilson Trucking Corp., 100 U.S.App.D.C. 106, 243 F.2d 212 (1957).

Nevertheless, respondent continues, some courts and commentators have suggested that under Fed.R.Civ.P. 50(b), the trial court should be permitted to grant a new trial if the weight of the evidence is against the verdict although the evidence is sufficient to warrant denial of a judgment n. o. v. Judge (now Chief Justice) Burger writing in dissent in Jackson v. Wilson Trucking Corp. expressed the view that a trial judge’s discretion to grant a new trial in response to a timely motion for judgment n. o. v. ought not to be limited to cases where judgment n. o. v. could have been granted. He observed:

In cases where a judgment n. o. v. is sought, it is almost a universal experience of practicing lawyers that 10 days will have elapsed from date of judgment before the court has an opportunity to decide whether or not final judgment should be entered in accordance with the motion. If, upon consideration of the motion briefs and oral argument, the trial court then concludes the evidence is legally sufficient, although contrary to the verdict, it is powerless, under the rule now announced, to grant a new trial, even though it is convinced that is the logical and practical relief. I cannot believe that such rigidities were contemplated by the Federal Rules * * *. [243 F.2d at 220-221.]

Professor Moore supports this viewpoint, commenting:

For in that circumstance, the party opposing the motion would have been on adequate notice of a challenge to the sufficiency of the evidence. Certainly in this situation it would not be improper to deem a motion for new trial on the ground that the verdict was contrary to the great weight of the evidence to be included within the motion for judgment n. o. v. [5A Moore’s Federal Practice % 50.11 (1971).]

See Note, 71 Harv.L.Rev. 552 (1958); Note, 33 Notre Dame Law. 126 (1957); Note, 5 U.C.L.A.L.Rev. 954 (1957); cf. Slaughter v. Philadelphia National Bank, 290 F.Supp. 234 (E.D.Pa.1968), rev’d on other grounds, 417 F.2d 21 (3d Cir. 1969).

But even if accepted as correct, the rationale suggested by Moore and the Jackson dissent — -which rests upon the trial court weighing the evidence— does not support an affirmance here. A new trial was granted in the ease at bar for a legal error in instructing the jury on the last clear chance doctrine. The respondent-Railroad cites no case or other authority as justifying the trial court’s exercise of discretion in granting a new trial outside the 10-day limitation for such an error when the trial court has found the evidence itself sufficient to support the jury verdict.

We find it quite apparent from the record submitted to us on appeal that the post-trial controversy between the parties centered on the question whether the evidence justified submitting the last clear chance doctrine to the jury. The respondent-Railroad squarely presented that question as one of law to the trial court. The trial court decided that issue of law against the Railroad. Upon entry of the order denying judgment n. o. v., without any new trial order, such issue could have been expeditiously submitted for our review. The intervention of a new trial order, however, prevents and delays a final resolution of the lawsuit. In another case the author of this opinion said that federal eourts and litigants therein ought not to bear the burden of repetitive trials unless absolutely necessary. General Motors Corp. v. Lord, 488 F.2d at 1100-1101 (Bright, J., concurring). That admonition applies more forcefully here than in Lord — for here, neither litigant requested a new trial nor questioned the form and content of the instructions on last clear chance during the trial.

The writ of mandamus shall be issued vacating the new trial order and reinstating the judgment on the verdict.

      . Courts have permitted review of a new trial order by mandamus for a clear abuse of discretion by the trial court. Grace Lines, Inc. v. Motley, 439 F.2d 1028 (2d Cir. 1971) ; of. General Motors Corporation v. Lord, 488 F.2d 1096 (8th Cir. 1973). The issue here relates to jurisdiction of the trial court, not to the exercise of its discretion.

      . The interrogatories contained in the special verdict returned by the jury read :
      1. Was the defendant railroad company guilty of negligence which was the proximate cause of the collision and resulting injuries and damages?
      Yes x
      No _
      2. Was the plaintiff guilty of negligence which was a proximate cause of the collision and resulting injuries and damages ?
      Yes x
      No _
      3. If the answer to the second interrogatory is yes, did the defendant railroad have the Last Clear Chance to avoid the collision?
      Yes x
      No _____
      The court instructed on Last Clear Chance, in part, as follows :
      INSTRUCTION NO. 21 Even if you have found the plaintiff, Prank L. Peterman, guilty of negligence which was a proximate cause of the collision he might still recover under the doctrine of last clear chance.
      * * * *
      In order for the plaintiff to recover from the defendant under this doctrine of last clear chance, the plaintiff must prove by a preponderance of the evidence all of the following propositions: (1) that at the time of and just prior to the collision, plaintiff’s converted school bus was in a position of peril and danger by reason of his bus being driven onto the tracks in front of the oncoming train; (2) that defendant saw or had actual knowledge of plaintiff’s presence at the crossing ahead; (3) that defendant knew and realized, in the situation in which it saw him, that plaintiff was in a position of peril or danger of being injured by defendant’s train, or that defendant should have so known and realized in the exercise of ordinary care and prudence; (4) that after realizing plaintiff’s peril or after such realization should have come to him in the exercise of ordinary care and prudence, there was time and defendant would have been able to have avoided the collision and plaintiff’s injuries through the exercise of ordinary care; and (5) that thereafter defendant failed to use ordinary and reasonable care to stop or slow down its train and avoid the accident, and as a result thereof the collision and plaintiff’s injuries occurred.
      If you find that the plaintiff, Frank L. Peterman, has established all of the above propositions, numbered one through five inclusively, by a preponderance of the evidence, then you should find for the plaintiff under the doctrine of last clear chance. However, if the plaintiff has not established all of the above numbered propositions then you should find for the defendant railroad under this theory.
      INSTRUCTION NO. 22 The law as to the elements of plaintiff’s claim and defendant’s affirmative defense has been set forth in prior instructions. The following questions are set forth merely to aid the jury in considering the various matters in a logical order, not to restate the law. You shall consider :
      First: Was the defendant railroad negligent?
      If your answer to that question is “no”, you will return a verdict for the defendant on the plaintiff’s claim against it. But if your answer is “yes”, you then have a second issue to determine, namely:
      Second: Was the negligence of the defendant the proximate cause of any injury to the plaintiff?
      If your answer to that question is “no”, you will return a verdict for defendant on plaintiff’s claim against it. But if your answer is “yes”, then you must find the answer to a third question, namely:
      Third: Was the plaintiff, Frank B. Pe-terman, negligent?
      If you find the plaintiff was not negligent, having found in plaintiff’s favor in answer to the first two questions, you should determine the amount of plaintiff’s damages and return a verdict in plaintiff’s favor for that amount. On the other hand, if you find the plaintiff was negligent, you must then find the answer to a fourth question, namely:
      Fourth: Was the negligence of the plaintiff a proximate cause of any injuries he may have sustained?
      If you find the answer is “no”, having found in plaintiff’s favor in answer to the first two questions, you will determine the amount of plaintiff’s damages and return a verdict for plaintiff in that amount. On the other hand, if you find the answer is “yes”, you have a fifth issue to determine, namely:
      Fifth: Did the defendant railroad have the last clear chance to avoid the collision with plaintiff as defined in Instruction No. 21?
      If your answer to this question is “yes”, you will proceed to determine the amount of plaintiff’s damages and return a verdict for plaintiff in that amount. If on the other hand, your answer is “no”, you should return a verdict for defendant railroad.

      . The question of the sufficiency of the evidence to submit the last clear chance doctrine to the jury is not before us and we express no opinion on such issue.