Supreme Court of the United States, 1966

Switzerland Cheese Assn., Inc. v. E. Horne's Market, Inc.

Supreme Court of the United States · Decided November 7, 1966 · Douglas, Harlan, Chappell, Inc, Frankel, Stewart

385 U.S. 23; 87 S. Ct. 193; 17 L. Ed. 2d 23; 1966 U.S. LEXIS 2941; 10 Fed. R. Serv. 2d 1391 (United States Reports)

Counsel

David Toren argued the cause for petitioners. With him on the briefs were John J. McGlew and Aljred E. Page., Harold E. Cole argued the cause and filed a brief for respondent.

Cases that cite this one

311 later published cases cite this decision. The 24 that cite it most often are listed here.

Hershey Foods Corporation v. Hershey Creamery Company, Hershey Creamery Company, Counter-Claimant v. Hershey Foods Corporation, Counter-Defendant (3d Cir. 1991)
Cromaglass Corporation, Williamsport, Pa. (A Pennsylvania Corporation) v. Carl Ferm (3d Cir. 1974)
Abercrombie & Fitch Company v. Hunting World, Incorporated (2d Cir. 1972)
LeVanger v. HIGHLAND ESTATES PROPERTIES OWNERS ASSOCIATION (Utah Ct. App. 2003)
Commodity Futures Trading Commission v. Preferred Capital Investment Company, George W. Gramer (5th Cir. 1982)
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. INTERNATIONAL LONGSHOREMEN’S ASSOCIATION Et Al., Defendants-Appellees (5th Cir. 1975)
Blount Brothers Construction Company v. Joseph Troitino, Doing Business as Troitino Construction Company (D.C. Cir. 1967)
Elizabeth Nye Woodard, Miles Cogley Nye, Jr., and the Kendall Company v. Sage Products, Inc. (Fed. Cir. 1987)
Raymond J. Donovan, Secretary of Labor v. Loran W. Robbins, and Allen M. Dorfman (7th Cir. 1985)
Goldstein v. Cox (Supreme Court of the United States 1970)
In re Lorillard Tobacco Company (9th Cir. 2004)
Metex Corporation v. Acs Industries (3d Cir. 1984)
March Madness Athletic Ass'n, LLC v. Netfire, Inc. (District Court, N.D. Texas 2003)
Carson v. American Brands, Inc. (4th Cir. 1979)
Jo-Ann Evans GARDNER, Appellant, v. WESTINGHOUSE BROADCASTING COMPANY (3d Cir. 1977)
Salazar Ex Rel. Salazar v. District of Columbia (D.C. Cir. 2012)
Metex Corp. v. ACS Industries, Inc. (3d Cir. 1984)
Lewis v. Bloomsburg Mills, Inc. (4th Cir. 1979)
Julie Iacono v. Bret B. Hicken (Utah Ct. App. 2011)
United Keetoowah Band of Cherokee v. United States (10th Cir. 2007)
Citizens Concerned About Our Children v. School Board of Broward County (11th Cir. 1999)
National Asbestos Workers Medical Fund v. Philip Morris, Inc. (District Court, E.D. New York 1999)
Jones v. Feiger, Collison & Killmer (Colo. App. 1995)
John W. Whalen v. Unit Rig, Inc., a Delaware Corporation Terex Corporation, a Delaware Corporation Mrl Acquisition Corporation, a Delaware Corporation (10th Cir. 1992)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

Mr. Justice Douglas

delivered the opinion of the Court.

Petitioners brought this suit for trademark infringement and unfair competition under the trademark laws. 60 Stat. 427, 15 U. S. C. 1051 et seq. They sought a preliminary injunction during the pendency of the action, a permanent injunction, and damages. After issue was joined, petitioners moved for a summary judgment granting a permanent injunction and awarding damages against respondent. The District Court could not say that there was “no genuine issue as to any material fact” *24 within the meaning of Rule 56 of the Federal Rules of Civil Procedure which governs summary judgments and accordingly denied the motion. Petitioners appealed, claiming that order to be an “interlocutory” one “refusing” an injunction within the meaning of § 1292 (a)(1) of the Judicial Code, 28 U. S. C. § 1292 (a)(1). 1

The Court of Appeals held that the order denying the motion for a summary judgment was not an “interlocutory” one within the meaning of § 1292 (a)(1) and dismissed the appeal for want of jurisdiction. 351 F. 2d 552. We granted certiorari because of a conflict between that decision and those from the Second Circuit. See, e. g., Federal Glass Co. v. Loshin, 217 F. 2d 936. 2

Unlike some state procedures, federal law expresses the policy against piecemeal appeals. See Baltimore Contractors, Inc. v. Bodinger, 348 U. S. 176. Hence we approach this statute somewhat gingerly lest a floodgate be opened that brings into the exception many pretrial orders. It is earnestly argued, however, that, although this order denied a permanent injunction, it was nonetheless “interlocutory” within the meaning of § 1292 (a)(1) because the motion for summary judgment did service for a motion for a preliminary injunction (see Federal Glass Co. v. Loshin, supra, at 938) and that therefore “interlocutory” must also include a denial of a permanent injunction.

*25 We take the other view not because “interlocutory” or preliminary may not at times embrace denials of permanent injunctions, but for the reason that the denial of a motion for a summary judgment because of unresolved issues of fact does not settle or even tentatively decide anything about the merits of the claim. It is strictly a pretrial order that decides only one thing — that the case should go to trial. Orders that in no way touch on the merits of the claim but only relate to pretrial procedures are not in our view “interlocutory” within the meaning of § 1292 (a)(1). We see no other way to protect the integrity of the congressional policy against piecemeal appeals. 3

Affirmed.

Mr. Justice Harlan would affirm the judgment below on the basis of the reasoning set forth in Judge Waterman’s opinion for the Second Circuit in Chappell & Co., Inc. v. Frankel, 367 F. 2d 197. Mr. Justice Stewart concurs in the result.

That section provides:

“(a) The courts of appeals shall have jurisdiction of appeals from:

“(1) Interlocutory orders of the district courts of the United States ... or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.”

Subsequent to the grant of certiorari in this case, the Second Circuit, en banc, reversed its position and held that such an order is not appealable. Chappell & Co., Inc. v. Frankel, 367 F. 2d 197.

As Judge Charles E. Clark said, in dissent, in Peter Pan Fabrics, Inc. v. Dixon Textile Corp., 280 F. 2d 800, at 805-806:

“A district judge’s orders advancing a case to trial ought not to be critically examined and re-examined by the cumbersome method of appeal before he has approached the stage of adjudication. . . . I believe this an intolerable burden for us, an improper and uncertain interference with trial court discretion, and a confusing invitation to indiscriminate appeals in the future — all contrary to settled federal law against piecemeal appeals.”

Case-law data current through December 31, 2025. Source: CourtListener bulk data.