State of Maryland for the Use of Josephine Costas, et al., Plaintiffs-appellants, v. Atlantic Aviation Corporation, Defendant-appellee, 361 F.2d 873 (3d Cir. 1966)

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US Court of Appeals for the Third Circuit - 361 F.2d 873 (3d Cir. 1966) Argued May 20, 1966
Decided May 31, 1966

Theodore E. Wolcott, New York City, for appellants.

Donald A. Robinson, Newark, N. J. (Shanley & Fisher, David S. Cramp, Newark, N. J., on the brief), for appellee.

Before STALEY, Chief Judge, and McLAUGHLIN and SMITH, Circuit Judges.


The first of these two appeals is from an injunction issued by the trial judge directing plaintiffs to abstain from all further proceedings in their identical suit in the Eastern District of New York. The second appeal is from the denial of plaintiffs' cross motions "* * * to transfer this action to the United States District Court for the Eastern District of New York, and in the alternative, for an order pursuant to Rule 41(a) (2) of the Rules of Civil Procedure, for dismissal of this action, without prejudice, * * *." Ordinarily the interlocutory order denying those motions would not be reviewable. In this instance, where they are not only ancillary to the interlocutory injunction but actually a vital affirmative part of plaintiffs' total effort to have their case tried in the Eastern District of New York, they are so reviewable because of the interlocutory injunction. National Equipment Rental, Ltd. v. Fowler, 287 F.2d 43, 45 (2 Cir. 1961).

The substance of these appeals has been exhaustively examined by this Court. On all of the facts we find that the decisions of the District Judge were well within his discretion.

The judgments of the District Court will be affirmed without costs to either party as against the other.