Opinion
Misc. No. 418.
February 14, 1955.
Finton J. Phelan, Jr., Agana, Guam, Brockman Adams, Little, LeSourd, Palmer, Scott Slemmons, Seattle, Wash., for movant.
No appearances for respondent.
Before DENMAN, Chief Judge, and BONE and POPE, Circuit Judges.
On February 11, 1955, movant forwarded to this court the above motion to obtain an order to show cause and an order staying proceedings in the cases of Siciliano v. American Pacific Dairy Products, Inc. and Pacific Enterprises, Inc. v. American Pacific Dairy Products, Inc. and Joseph Siciliano, which have been consolidated for trial in the district court of Guam on February 14, 1955. On February 12, 1955, supporting papers were received by this court.
Mandamus is sought to direct the district court to grant movant's motion for a continuance until April 15, 1955. The first of these actions was commenced on September 20, 1954, and the second began on November 4, 1954. No satisfactory excuse is shown for withholding the motion on this ground until the eve of the trial.
Prohibition is sought because it is contended that the complaints cite the wrong code section to establish jurisdiction in the court below. It is not claimed that the district court lacks jurisdiction over the subject matter or the parties. Again no excuse is offered for waiting until the eve of the trial to seek relief from this court.
Mandamus is sought to compel the district court to separate the consolidated cases on the ground that one Siciliano thereby becomes a plaintiff in one action and a defendant in the other. Movant also seeks a separate trial of the issues in the case of Pacific Enterprises, Inc. v. American Pacific Dairy Products, Inc. and Joseph Siciliano, because it appears that Siciliano is the controlling owner of Pacific Enterprises.
There is no showing of what, if any, prejudice will result to movant by such consolidation as required by Rule 42(b), Federal Rules of Civil Procedure, 28 U.S.C.A.
The motions are denied.
I agree. The petition fails to show that the requested writ would be in aid of our appellate jurisdiction. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 63 S.Ct. 938, 87 L.Ed. 1185.