Harvey Aluminum, a Corporation, Appellant, v. International Longshoremen's and Warehousemen's Union, Local 8; and International Longshoremen's and Warehousemen's Union, Appellees, 278 F.2d 63 (9th Cir. 1960)

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US Court of Appeals for the Ninth Circuit - 278 F.2d 63 (9th Cir. 1960) May 11, 1960

Rhoten, Rhoten & Speerstra, Sam Speerstra, Salem, Or., for appellant.

Gladstein, Andersen, Leonard & Sibbett, San Francisco, Cal., Pozzi & Wilson, Portland, Or., for appellee.

Before POPE and HAMLIN, Circuit Judges, and BOWEN, District Judge.


Appellant as plaintiff below brought this action against the appellees alleging in its complaint that this action "arises under the laws of the United States regulating commerce, and more particularly under § 303 of the Labor Management Relations Act, 1947 [29 U.S.C.A. § 187]." It was based upon a claim that defendants had been guilty of certain acts amounting to secondary boycott resulting in damage to plaintiff. Plaintiff demanded judgment for three million dollars, general damages, three million dollars, punitive damages, and thirty-five thousand dollars, attorneys' fees. Defendants moved to strike from the complaint the allegations and the portion of the prayer claiming punitive damages. The motion was granted and plaintiff now attempts to appeal from the order granting that motion.

We think that the order from which appeal is sought is not a final order or decision within the meaning of § 1291 of Title 28 U.S.C. Appellant seems to think that its appeal may be maintained under the authority of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528. That case is not apposite here as the order in question was but a step in the process of bringing the case to final judgment. It represents a stage of the proceeding which may be effectively reviewed and corrected if and when final judgment results. The order is purely interlocutory and not appealable. Leonard v. Socony-Vacuum Oil Co., 7 Cir., 130 F.2d 535, 537; United States v. Burnett, 9 Cir., 262 F.2d 55; Shultz v. Manufacturers & Traders Trust Company, 2 Cir., 103 F.2d 771.

The appeal is dismissed.