A. J. Burrell v. Kaiser Aluminum and Chemical Company

408 F.2d 339

A. J. BURRELL et al., Plaintiffs-Appellants,
v.
KAISER ALUMINUM AND CHEMICAL COMPANY et al., Defendants-Appellees.

No. 26893.

United States Court of Appeals Fifth Circuit.

February 12, 1969.

Murphy Bell, Baton Rouge, La., Jack Greenberg, James M. Nabrit, III, Robert Belton, Gabrielle A. Kirk, New York City, for appellants. Albert J. Rosenthal, New York City, of counsel.

Frank W. Middleton, Jr., Baton Rouge, La., Robert P. Tiernan, Oakland, Cal., C. Paul Barker, Jerry L. Gardner, Jr., New Orleans, La., Herbert S. Thatcher, Washington, D. C., Taylor, Porter, Brooks, Fuller & Phillips, Baton Rouge, La., for defendant-appellee, Kaiser Aluminum & Chemical Corp.

Before BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.

PER CURIAM:

1

Judicial pre-calendar screening under our new Rules 17-20 revealed that the District Court dismissed this case1 on the ground that "Dent v. St. Louis-San Francisco Railway Co., D.C., 265 F. Supp. 56 (1967) is controlling here."

2

Because Dent has been categorically overruled, Dent v. St. Louis-San Francisco Railway Co., 5 Cir., 1969, 406 F.2d 399, we have concluded that summary disposition of this appeal without oral argument is appropriate. Accordingly, the Clerk has been directed, pursuant to new Rule 18, to transfer this case to the summary calendar and notify the parties thereof.2

3

It follows, as in Dent, supra, the judgment must be reversed and remanded for further consistent proceedings.

4

Reversed and remanded.

APPENDIX

5

RULES OF THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RULE 17 DOCKET CONTROL

6

In the interest of docket control, the chief judge may from time to time, in his discretion, appoint a panel or panels to review pending cases for appropriate assignment or disposition under Rules 18, 19 or 20 or any other rule of this court.

RULE 18 SUMMARY CALENDAR

7

(a) Whenever the court, sua sponte or on suggestion of a party concludes that a case is of such character as not to justify oral argument, the case may be placed on the summary calendar.

8

(b) A separate summary calendar will be maintained for those cases to be considered without oral argument. Cases will be placed on the summary calendar by the clerk, pursuant to directions from the court.

9

(c) Notice in writing shall be given to the parties or their counsel of the transfer of the case to the summary calendar.

RULE 19 MOTION TO DISMISS OR AFFIRM

10

Within fifteen days after the appeal has been docketed in this court, the appellee may file a motion to dismiss or a motion to affirm. Where appropriate, a motion to affirm may be united in the alternative with a motion to dismiss. The fifteen day provision may be waived by the court on proper showing of reasonable excuse for delay in filing a motion to dismiss or affirm, upon such terms and conditions as the court may prescribe, or such waiver may be granted sua sponte on the part of the court.

11

(a) The court will receive a motion to dismiss any appeal on the ground that the appeal is not within the jurisdiction of this court.

12

(b) The court will receive a motion to affirm the judgment sought to be reviewed on the ground that it is manifest that the questions on which the decision of the cause depends are so unsubstantial as not to need further argument.

13

The motion to dismiss or affirm shall be filed with the clerk in conformity with Rule 27 of the Federal Rules of Appellate Procedure.

14

The appellant shall have ten days from the date of receipt of the motion to dismiss or affirm within which to file a response opposing the motion. Such response may be typewritten and four copies, with proof of service, shall be filed with the clerk. Upon the filing of such response, or the expiration of the time allowed therefor, or express waiver of the right to file, the record on appeal, motion and response shall be distributed by the clerk to the court for its consideration.

15

After consideration of the papers distributed pursuant to the foregoing paragraph the court will enter an appropriate order.

16

The time for filing briefs pursuant to Rule 31 of the Federal Rules of Appellate Procedure shall not be tolled or extended by the filing of a motion to dismiss or affirm.

RULE 20 FRIVOLOUS AND UNMERITORIOUS APPEALS

17

If upon the hearing of any interlocutory motion or as a result of a review under Rule 17, it shall appear to the court that the appeal is frivolous and entirely without merit, the appeal will be dismissed without the notice contemplated in Rules 18 and 19.

Notes:

1

Burrell v. Kaiser Aluminum and Chemical Corp., E.D.La., 1968, 287 F. Supp. 289, 290

2

In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. All four of these new rules are reproduced in the Appendix to this opinion. For a general discussion of the need for and propriety of summary review of certain appeals, see Groendyke Transport, Inc. v. Davis, 5 Cir., 1969, 406 F.2d 1158

For cases heretofore placed on the summary calendar see Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165; United States v. One Olivetti Elec. 10-Key Adding Machine, 5 Cir., 1969, 406 F.2d 1167; United States v. One 6.5 mm. Mannlicher-Carcano Military Rifle, 5 Cir., 1969, 406 F.2d 1170; NLRB v. Great A. & P. Tea Co., 5 Cir., 1969, 406 F.2d 1173; Thompson v. White, 5 Cir., 1969, 406 F.2d 1176; Diffenderfer v. Homer, 5 Cir., 1969, 408 F.2d 1344; Meadows v. Cohen, 5 Cir., 1969, 409 F.2d 750; Byrd v. Smith, 5 Cir., 1969, 407 F.2d 363; Hall v. United States, 5 Cir., 1969, 407 F.2d 1320; Montos v. Smith, 5 Cir., 1969, 406 F.2d 1243.