Opinion · Court of Appeals for the Second Circuit

G. K. W., Inc. v. Philco Corp.

G. K. W., Inc. v. Philco Corp., 276 F.2d 928 (2d Cir. 1960)

Type: Opinion
Court: Court of Appeals for the Second Circuit
Jurisdiction: Federal
Date: 1960-04-04
Topic: general

PER CURIAM. In these two antitrust and price-discrimination actions, the district court has entered orders of dismissal for failure to prosecute, which, however, in one case have left the action standing as to one partnership plaintiff and both defendants, and in the other case as to one partnership plaintiff and one defendant. In neither case did the court enter the determination and direction for entry of judgment requisite for finality under the express language of F.R. 54(b). Without that the judgments are not appealable. See 3 Barron & Holtzoff, Federal Practice and Procedure § 1193.2 and note 56.9 (Wright Ed.); 6 Moore’s Federal Practice 245, 246, and note 7 (2d Ed.1953); cf.

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UpLaw has not yet analyzed G. K. W., Inc. v. Philco Corp.. The absence of a flag is not a finding that it is good law.

Cited by: 2 opinions

G.K.W., INC. v. PHILCO CORPORATION,276 F.2d 928(2nd Cir. 1960)

G.K.W., INC., and Abe Friedel, Plaintiffs-Appellants, v. PHILCO

CORPORATION et al., Defendants-Appellees. Benjamin KATZOFF et al.,

Plaintiffs-Appellants, v. ADMIRAL CORPORATION et al.,

Defendants-Appellees.

Nos. 227, 228, Docket 25969, 25970.

United States Court of Appeals, Second Circuit.

Argued March 10, 1960.

Decided April 4, 1960

Page 929

J. Robert Ellner, of Swiger, Chambers, Kelley Harragan, New York City (Robert E. Nickerson, of Ivey, Barnum, O'Mara Nickerson, Greenwich, Conn., on the brief), for plaintiffs-appellants.

A. Vernon Carnahan, of Donovan, Leisure, Newton Irvine, New York City (James M. Ellis, of Donovan, Leisure, Newton Irvine, New York City, on the brief), for defendants-appellees Philco Corporation and Philco Distributors, Inc.

William D. Friedmann, of O'Brien, Driscoll Raftery, New York City (George A. Raftery, of O'Brien, Driscoll Raftery, New York City, on the brief), for defendants-appellees Admiral Corporation and Admiral Corporation New York Distributing Division, Inc.

Before CLARK, WATERMAN, and LEWIS,^fn*Circuit Judges.

PER CURIAM.

In these two antitrust and price-discrimination actions, the district court has entered orders of dismissal for failure to prosecute, which, however, in one case have left the action standing as to one partnership plaintiff and both defendants, and in the other case as to one partnership plaintiff and one defendant. In neither case did the court enter the determination and direction for entry of judgment requisite for finality under the express language of F.R. 54(b). Without that the judgments are not appealable. See 3 Barron Holtzoff, Federal Practice and Procedure § 1193.2 and note 56.9 (Wright Ed.); 6 Moore's Federal Practice 245, 246, and note 7 (2d Ed. 1953); cf. Goldlawr v. Heiman, 2 Cir.,273 F.2d 729. The appeals are therefore dismissed.

Of the Tenth Circuit, sitting by designation. ↩