ESTELLA H. ANDREWS, PLAINTIFF-APPELLANT,
v.
SOUTHERN DISCOUNT COMPANY OF GEORGIA, DEFENDANT-APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A stay order in an action at law, which is not sought to determine equitable defenses or counterclaims, is not appealable under the collateral order doctrine or as an injunction.
Plaintiff filed a Truth-in-Lending (TIL) suit in federal court while a related action was pending in state court. The federal court stayed the TIL act…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Appealability Of Stay Orders cases and more on FLexlaw
PER CURIAM:
Plaintiff filed this Truth-in-Lending (TIL) suit in federal court while an action was pending against her in state court on the underlying debt. Defendant moved to dismiss this suit on the ground the TIL claim must be asserted as a compulsory counterclaim in the state action.
The magistrate’s report, adopted by the district court, provided:
Although the defendant alleges dismissal of plaintiff’s action is appropriate under res judicata principles because plaintiff’s TIL claims are compulsory counterclaims in state court, dismissal is in fact inappropriate where the state action is still pending. Compare Mays v. Brent, 546 F. 2d 1154 (5th Cir. 1977), cert. denied, 434 U.S. 850 [98 S.Ct. 160, 54 L.Ed.2d 118] (1977); Burgess v. Mitchell Motors, Inc., F.Supp. (N.D.Ga. No. C77-1411A, May 8, 1978, O’Kelley, J.) (res judicata principles apply only after state court renders final judgment).
However, under Georgia law, plaintiffs TIL claims are compulsory counterclaims in the state court action. Aycock v. Household Finance Corp., 142 Ga.App. 207, 235 S.E. 2d 578 (1977), cert. denied, 240 Ga. 570, 241 S.E. 2d 835 (1977). Thus, plaintiff’s counterclaims are properly before the state court. It is therefore appropriate, considering factors of judicial and litigant economy, for this court to stay the instant TIL action pending resolution of the state court proceeding. Ruby Nell Holmes v. Safeway Finance Co., Inc., (N.D.Ga. No. C77-1918A, Mar. 30, 1978, Murphy, J. adopting R&R of Mar. 2, 1978 of Forrester, M.). See also Washington v. Rothenberg, 436 F.Supp. 699 (E.D.Va.1977); Wheeler v. Adams Co., Inc., 322 F.Supp. 645, 659-60 (D.Md. 1971). But see Mitchell v. General Finance Corp., 79 F.R.D. 82 (N.D.Ga.1978).
RECOMMENDATION
For the above and foregoing reasons, this court recommends that defendant’s Motion to Dismiss be denied, and that the instant action be stayed pending resolution of defendant’s action (No. 79-6472), in the Superior Court of DeKalb County.
The district court subsequently denied a motion to dissolve the stay, and plaintiff appeals.
We dismiss the appeal on the ground the stay order is not appealable. See Jackson Brewing Co. v. Clarke, 303 F. 2d 844 (5th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962). Although the stay here is in an action at law, it was not sought to permit determination of equitable defenses or counterclaims, a requirement for appealability of a stay order. Id. at 845-46. The order also does not fall within the collateral order doctrine, established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), because a failure to review at this time will not bar plaintiff’s claim from federal adjudication, if for some reason the claim is not properly litigated in the state court. Plaintiff justifiably makes no attempt to assert the order is appealable as an injunction or as a 28 U.S.C. section 1292(b) order, no court certificate having been obtained.
APPEAL DISMISSED.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271 (U.S. 1988)…s-Manville Sales Corp., 723 F. 2d 1068, 1073 (CA3 1983) (holding that stays issued to avoid duplicative litigation are not based on equitable defenses and therefore are not appealable under § 1292(a)(1)); Andrews v. Southern Discount Co. of Georgia, 662 F. 2d 722, 724 (CA11 1981) (same); Jackson Brewing Co. v. Clarke, 303 F. 2d 844, 846 (CA5) (same), cert. denied, 371 U. S. 891 (1962). A dissenting opinion in Morgantown accused the majority of having overruled Enelow and Ettelson. See Morgantown v. Royal In…
-
Texaco, Inc. v. Cottage Hill Operating Co., 709 F.2d 452 (7th Cir. 1983)…larke, 303 F. 2d 844, 845 (5th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962) (emphasis in original); see also Microsoftware Computer Systems v. Ontel Corp., 686 F. 2d 531, 535 (7th Cir.1982); Andrews v. Southern Discount Co., 662 F. 2d 722, 724 (11th Cir.1981); Jensenius v. Texaco, Inc., 639 F. 2d 1342, 1343 (5th Cir.1981); Bear v. Hayden, Stone, Inc., 526 F. 2d 734, 735 (9th Cir.1975). See generally 9 Moore’s Federal Practice ¶ 110.20[3] (2d [*454] ed. 1982).1 This so-called Enelow…1 / 2
-
Mayacamas Corp. v. Gulfstream Aerospace Corp., 806 F.2d 928 (9th Cir. 1986)…pany v. Clarke, 303 F. 2d 844, 846 (5th Cir.), cert. denied, 371 U.S. 891, 83 S.Ct. 190, 9 L.Ed.2d 124 (1962) (stay to permit pending state action between the parties not considered an equitable defense); Andrews v. Southern Discount Co. of Georgia, 662 F. 2d 722, 724 (11th Cir.1981) (stay to permit resolution of disputed issues in state court not appealable). 2. 28 U.S.C. § 1291 The denial of a stay is not a final decision appealable under section 1291 because it does not end the litigation on the merits.…
Authorities Cited
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (U.S. 1949)
- Jackson Brewing Co. v. Clarke, 303 F.2d 844 (5th Cir. 1962)
- Todaro v. Pederson, 371 U.S. 891 (U.S. 1962)
- Jackson Brewing Co. v. Clarke, 371 U.S. 891 (U.S. 1962)
- Hardy v. Jamison, 434 U.S. 850 (U.S. 1977)
- Brinlee v. Crisp, 434 U.S. 850 (U.S. 1977)
- Mays v. Brent, 546 F.2d 1154 (5th Cir. 1977)