Opinion · Court of Appeals for the Fifth Circuit

Scott Paper Company and International Paper Company v. Gulf Coast Pulpwood Association, Inc., Etc.

491 F.2d 119

Type: Opinion
Court: Court of Appeals for the Fifth Circuit
Jurisdiction: Federal
Date: 1974-03-18
Topic: general

PER CURIAM: The parties have briefed and argued this appeal, in general, as if it were from a final judgment on the merits. This was caused by an order of the District Court, possibly an inadvertence, which denied “motions for temporary and permanent injunctions”. The fact nevertheless remains that the record is bereft of any order, before or after the commencement of the hearing, directing a trial of the ease on the merits, consolidated with the hearing of the application for a preliminary injunction, Rule 65(a)(2), Federal Rules of Civil Procedure. Consequently, only the action on the preliminary injunction is presently reviewable. We are of the view that there was no abuse of discretion in the denial of the preliminary injunction.

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Cited by: 4 opinions

SCOTT PAPER CO. v. GULF COAST PULPWOOD ASS'N,491 F.2d 119(5th Cir. 1974)

SCOTT PAPER COMPANY AND INTERNATIONAL PAPER COMPANY, PLAINTIFFS-APPELLANTS,

v. GULF COAST PULPWOOD ASSOCIATION, INC., ET AL., ETC.,

DEFENDANTS-APPELLEES.

No. 73-3262.

United States Court of Appeals, Fifth Circuit.

March 18, 1974.

Frank McRight, Kirk C. Shaw, Mobile, Ala., for Scott Paper.

R. F. Adams, Brock B. Gordon, Mobile, Ala., for Int'l Paper.

John J. Coleman, Jr., Samuel H. Franklin, Birmingham, Ala., for MacMillan Bloedel Inc., amicus curiae.

Harry H. Riddick, Joseph M. Allen, Jr., Mobile, Ala., for J. B. Jones Timber Co., and others, amicus curiae.

James U. Blacksher, Mobile, Ala., John G. Ratcliff, Hattiesburg, Miss., William H. Allison, Jr., Louisville, Ky., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before COLEMAN, AINSWORTH and GEE, Circuit Judges.

PER CURIAM:

[1] The parties have briefed and argued this appeal, in general, as if it were from a final judgment on the merits. This was caused by an order of the District Court, possibly an inadvertence, which denied "motions for temporary and permanent injunctions". The fact nevertheless remains that the record is bereft of any order, before or after the commencement of the hearing, directing a trial of the case on the merits, consolidated with the hearing of the application for a preliminary injunction, Rule65(a)(2), Federal Rules of Civil Procedure. Consequently, only the action on the preliminary injunction is presently reviewable.

[2] We are of the view that there was no abuse of discretion in the denial of the preliminary injunction. Pending the development of a full and complete record in a trial, and a final judgment, we abstain from a discussion of the merits. We do note, however, that the trial, if and when held, should be limited to the named defendants.

[3] In view of the thorough exposition of the law of preliminary injunctions recently written by Judge Thornberry, there is no necessity to resurvey that ground, see Canal Authority of State of Florida v. Callaway, 5 Cir., 1974,489 F.2d 567. Neither the District Court nor counsel had the benefit ofCanal Authorityin handling this case below.

[4] We therefore affirm the denial of the preliminary injunction and remand to the District Court for further proceedings.

[5] Affirmed and remanded.Page 120