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Wilderman v. Cooper & Scully

October 28, 2005 as amended December 23, 2005.

BRUCE J. WILDERMAN, D.D.S.; HEIDY D. WILDERMAN, APPELLANTS
v.
COOPER & SCULLY, P.C.



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 04-cv-00460). District Judge: Honorable Stewart Dalzell.

The opinion of the court was delivered by: Ambro, Circuit Judge

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) September 30, 2005

Before: ALITO, and AMBRO, Circuit Judges, RESTANI,*fn1 Chief Judge

OPINION

One Texas law firm sued another in a Texas court, charging tortious interference with contract. Then, erstwhile clients of the plaintiff firm-now clients of the defendant firm-filed a declaratory judgment action in Pennsylvania seeking determination of the fees they owed the plaintiff firm. This declaratory action was removed to the District Court, where it stayed the action to keep from duplicating or interfering with the Texas suit.

Appellate jurisdiction over a stay exists when it has the effect of a dismissal rather than the effect of delay. Is the District Court's stay appealable? As the stay here is but a delay, we answer no and dismiss the appeal. We also deny issuance of the writ of mandamus sought as an alternative means of bringing before us the merits of the appeal.

I. Factual Background and Procedural History

Bruce and Heidy Wilderman retained the Texas law firm Cooper & Scully to represent them in an environmental suit in Pennsylvania. Their lawyer, Scott Summy, later left Cooper & Scully to join Baron & Budd, another Texas law firm. The Wildermans left with Summy, retaining Baron & Budd to complete their Pennsylvania litigation.

Cooper & Scully sued Summy and Baron & Budd in Texas state court for damages, asserting various claims, including interference with contract, usurpation of corporate opportunity, and conversion. The Wildermans were not joined in the Texas litigation and are not parties to that suit. One of the issues in the Texas suit is how Cooper & Scully and Baron & Budd will share the attorney's fees from the Pennsylvania environmental litigation.*fn2

The Wildermans sued Cooper & Scully in Pennsylvania state court in a declaratory judgment action, seeking a judicial determination of the fees the Wildermans owed that firm. Cooper & Scully removed the suit to federal court on diversity grounds and filed a motion to dismiss or stay the Wildermans' suit.

The District Court stayed the Wildermans' suit before it so as to "not duplicate or interfere with the [Texas] proceedings," requiring Cooper & Scully to report on the status of the Texas case every 60 days. The Wildermans appeal this stay and, in the alternative, seek a writ of mandamus. Cooper & Scully filed a motion with us to dismiss the appeal for lack of jurisdiction.

II. Discussion

A. Is the Stay Entered by the District ...


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