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Theophil v. Sheller-Globe Corp.

January 3, 1979

WILLIAM G. THEOPHIL, PLAINTIFF-APPELLEE,
v.
SHELLER-GLOBE CORPORATION, ET AL., DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the Eastern District of New York.

Present: HONORABLE WILFRED FEINBERG, HONORABLE WILLIAM H. MULLIGAN, HONORABLE MURRAY I. GURFEIN, Circuit Judges.

This cause came on to be heard on the transcript of record from the United States District Court for the Eastern District of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby ordered, adjudged, and decreed that the order of this court, dated July 27, 1978, granting the application of defendants-appellants for permission to appeal pursuant to 28 U.S.C. § 1292(b), is vacated. The district court did not decide the issue whether the applicable statute of limitations bars plaintiff's claim, stating

This matter should not be decided on such a skimpy record. When the parties develop the full facts with respect to the issue it will be ripe for decision.

There will be no need for this court to consider on an interlocutory appeal by defendants the other two allegedly controlling questions of law -- whether plaintiff has standing and whether his complaint states an antitrust claim -- if the district judge determines that plaintiff is barred by the statute of limitations. We, of course, express no view on the merits of that issue. But under the circumstances, we believe it preferable for the district court, after allowing appropriately limited discovery, to decide the statute of limitations issue before this court is requested to consider the questions raised by the interlocutory appeal.

19790103

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