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Ash v. Cort

decided: February 26, 1975.

RICHARD A. ASH, ON BEHALF OF HIMSELF, AND ON BEHALF OF BETHLEHEM STEEL CORPORATION, PLAINTIFF-APPELLANT,
v.
STEWART S. CORT, LEWIS W. FOY, EDWARD D. BICKFORD, BERNARD D. BROEKER, ALBERT M. REED, C. THOMPSON STOTT, IVOR D. SIMS, CROWDUS BAKER, JESS H. DAVIS, THOMAS S. GATES, ROBERT B. HOBBS AND GEORGE P. JENKINS, ALL BEING DIRECTORS OF BETHLEHEM STEEL CORPORATION, DEFENDANTS-APPELLEES, AND BETHLEHEM STEEL CORPORATION, NOMINAL APPELLEE



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.

Van Dusen, Gibbons and Hunter, Circuit Judges.

Author: Hunter

Opinion OF THE COURT

HUNTER, Circuit Judge:

In this case we must decide whether a district court order denying a motion to perpetuate testimony pending appeal under F.R.C.P. 27(b) is a final order, appealable under 28 U.S.C. § 1291.*fn1 We conclude that it is a final order. Having jurisdiction to review the order, we must next decide whether denial of the motion to perpetuate testimony was an abuse of discretion in this case. We find no abuse of discretion and, therefore, affirm the district court's denial of the Rule 27(b) motion.

I

Plaintiff-appellant is a shareholder in Bethlehem Steel Corporation who seeks derivative damages in favor of the corporation against the directors for allegedly illegal political contributions and injunctive relief prohibiting future contributions allegedly violative of 18 U.S.C. § 610.*fn2

This is the third time this case has come before us. In a per curiam opinion filed in 1973, this court affirmed the district court's denial of plaintiff's motion for preliminary injunction.*fn3 Ash v. Cort, 471 F.2d 811 (3d Cir., 1973). The district court subsequently granted defendant appellee's motion for summary judgment on grounds that no cause of action had been stated. This court reversed in an opinion by Chief Judge Seitz. 496 F.2d 416 (3d Cir., 1974).

On July 20, 1974 defendant filed a petition for a writ of certiorari in the Supreme Court seeking to review this court's 1974 holding that a cause of action had been stated. The writ was granted on November 11, 1974, sub nom. Cort v. Ash, 419 U.S. 992, 95 S. Ct. 302, 42 L. Ed. 2d 264, 43 U.S.L.W. 3273 (1974).*fn4

On June 13, 1974 plaintiff filed the instant Rule 27(b) motion in the district court. The motion was denied and the present appeal followed.*fn5

Plaintiff-appellant asserts that denial of its Rule 27(b) motion was an abuse of discretion. Defendant-appellees move to dismiss the appeal on grounds that there has been no final appealable order. In the alternative, they allege that the denial was not an abuse of discretion.

II

Appealability

Rule 27(a) provides for perpetuation of testimony prior to trial, Rule 27(b) in turn deals with perpetuation of testimony pending appeal.*fn6 The scope of discovery allowed under Rule 27 is much narrower than that available under the ...


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