Petition for Mandamus to the United States District Court for the District of Delaware. (D.C. Civ. No. 91-166).
Before: Stapleton, Greenberg, and Scirica, Circuit Judges.
GREENBERG, Circuit Judge.
Alfred Blasband initiated this proceeding by filing a petition with this court seeking a writ of mandamus directed to the Honorable James L. Latchum, a senior United States District Judge for the District of Delaware, and to the Justices of the Delaware Supreme Court. In resolving this case we need only summarize the unusual underlying procedural history and the operative facts leading to the filing of the petition.
This case arises in the aftermath of our opinion and mandate in Blasband v. Rales, 971 F.2d 1034 (3d Cir. 1992), which we will call Blasband. In that case, Blasband brought a shareholder derivative suit against two brothers, Steven M. Rales and Mitchell P. Rales, as well as against certain John Doe defendants and the Danaher Corporation. Blasband asserted that the Rales brothers, who were the dominating shareholders of both Easco Hand Tools, Inc. and Danaher, violated their fiduciary duties to Easco by investing proceeds of an Easco "Note Offering" in highly speculative junk bonds, as consideration for the brothers' business dealings with Drexel Burnham Lambert Incorporated. Blasband claimed to have standing to bring the action because he had been a shareholder of Easco when the notes were sold and the investments were made and became a shareholder of Danaher when Easco later was merged into Danaher.
On the defendants' motion, the district court dismissed the derivative suit on the ground that Blasband had not made an appropriate demand on Danaher's directors to take action and did not establish demand futility. Furthermore, the district court held that as a result of the merger, Blasband lacked standing to bring the action. Blasband ex rel. Danaher Corp. v. Rales, 772 F. Supp. 850 (D. Del. 1991).
Blasband appealed and we reversed. Blasband acknowledged that he had not made an appropriate demand on the directors and we agreed with the district court that Blasband had not adequately established demand futility. However, after an extensive analysis of Delaware law which the parties agreed was controlling, we concluded that "Blasband has satisfied Delaware's statutory and common law standing requirements to maintain this derivative action." 971 F.2d at 1046. Therefore, inasmuch as we "disagreed with [the district court's] Conclusion that Blasband did not have standing to pursue a derivative claim on Danaher's behalf," 971 F.2d at 1055, we remanded the matter to the district court so that Blasband could move to amend his complaint to allege demand futility and to add Easco as a party.*fn1 On September 9, 1992, the clerk issued our judgment in conformity with the opinion in lieu of formal mandate.
At that point, the district court took an unusual step. On September 16, 1992, pursuant to Article IV, § 11(9) of the Delaware Constitution and Rule 41 of the Rules of the Delaware Supreme Court, the district court signed an "Order Certifying Question of Law to the Delaware Supreme Court." The order described the procedural history of Blasband and indicated that, in the district court's view, our opinion "ignored the mandate" of Delaware General Corporation Law § 327, Del. Code Ann. tit. 8, § 327 (1983).*fn2 The order further indicated that we had misconstrued Lewis v. Anderson, 477 A.2d 1040 (Del. 1984), the seminal Delaware case concerning the contemporaneous ownership requirement in Delaware derivative actions which, in view of the merger, was a barrier Blasband had to clear to have standing. The district court emphasized what it saw as Delaware's crucial interest in correcting possible misconstruction of its corporation law by the federal courts:
If the decision of the Court of Appeals is found to be contrary to Delaware law, the Delaware Supreme Court should make that determination promptly in order to avoid future confusion from a non-binding source and to neutralize a contaminating opinion relating to Delaware corporate law.
Ultimately the district court in the order certified the following question to the Delaware Supreme Court: "Does plaintiff Blasband have standing to bring a derivative stockholders suit on behalf of Danaher Corporation under the undisputed facts of this case?" On September 22, 1992, the Delaware Supreme Court accepted the certification and entered an order providing a briefing schedule.
As might be imagined, this turn of events did not sit well with Blasband. Accordingly, when the district court certified the matter to the Supreme Court, Blasband filed a petition for a writ of mandamus with this court seeking an order compelling the district court to withdraw and vacate its order certifying the question to the Supreme Court. Blasband, however, withdrew his initial petition when the Supreme Court accepted the certification and filed a substituted petition naming the defendants in Blasband as respondents and the district court and the Justices of the Delaware Supreme Court as nominal respondents. In his substituted petition, which we will simply call the "petition," Blasband seeks both an order directing the district court to withdraw its certification of the question and an order directing the Delaware Supreme Court to withdraw and vacate its order accepting certification. Furthermore, Blasband asks that we direct that the case be reassigned to another Judge. On Blasband's motion we expedited review of the petition, ...