Opinion
No. 80-1296.
May 9, 1980.
Leonard D. Vines, Moseley, Moseley Vines, St. Louis, Mo., filed the petition together with suggestions in support. No appearance was submitted.
No appearance was submitted for respondent.
Before STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.
ORDER
Petitioner seeks a writ of prohibition prohibiting the Honorable William L. Hungate, United States District Judge, from proceeding with trial of a case, No. 79-1017-C, pending in the United States District Court for the Eastern District of Missouri, wherein the district court has found jurisdiction over petitioner, allegedly a Yugoslavian concern, under Missouri's long-arm statute. Mo.Ann.Stat. § 506.500 (Vernon). The order complained of overruled petitioner's motion to dismiss the action against it for want of jurisdiction on April 9, 1980. Judge Hungate made no certification as contemplated by 28 U.S.C. § 1292(b) and, indeed, from the materials before us it does not appear that he was asked to do so.
The petition for writ of prohibition, filed April 18, 1980, obviously involves an attempt to seek interlocutory review. Given a proper record on the jurisdictional issue we might well entertain an interlocutory appeal. See and compare Hutson v. Fehr Bros., Inc., 584 F.2d 833 (8th Cir.), cert. denied, 439 U.S. 983, 99 S.Ct. 573, 58 L.Ed.2d 654 (1978). However, we should not ordinarily permit use of the extraordinary writ as a substitute for the interlocutory review procedure provided by 28 U.S.C. § 1292(b), School Dist. of Kansas City v. State of Missouri, 592 F.2d 493 (8th Cir. 1979), and we decline to do so now.
The petition is dismissed without prejudice to resort to efforts to effect an interlocutory appeal. See FRAP 5(a).