of this Court should follow a prior ruling of a brother judge in the same action. This principle, however, does not apply in the event of a substantial change in the situation in the case of an application for discretionary relief. An application for a stay may properly be denied at one stage of a litigation and yet, at a later stage, the situation may so change that a stay might be appropriate. While this Court would follow the prior ruling, if there were no change in the situation, it would not necessarily be bound by the prior ruling if there were a substantial alteration in the posture of the case when the present motion was made. Therefore, it is necessary to analyze the exact posture of the case at the time the prior motion was made and its posture at this time in order to determine whether there is a substantial difference in the situation, making it proper to grant a stay at this time in spite of the fact it has been previously denied.
Originally, on December 9, 1958, the motion for a stay, such as is asked here, was granted by Judge Tamm. He apparently felt that a stay was appropriate in view of the fact that the New York Court had first obtained jurisdiction of the controversy. At that time, it should be noted, however, the settlement agreement that has been heretofore mentioned had not been entered into and, for all that appeared, the New York action would have had to be tried in due course. The plaintiffs then applied to the United States Court of Appeals for the District of Columbia Circuit for leave to file a petition for a writ of mandamus against Judge Tamm, in effect, seeking an appellate review of the order made by Judge Tamm in which he granted the stay. On February 26, 1959, the Court of Appeals allowed the petition for leave to file an application for a writ of mandamus. Its decision was in a rather unusual form. No opinion was written. In form, the decision was a simple order but it was preceded by a long series of recitals that perhaps might be deemed to be findings of fact, conclusions of law or reasons for making the order or a combination of two or all three.
At the time when the order of the Court of Appeals came down, the settlement agreement had been entered into. Among the recitals contained in the order of the Court of Appeals is a statement that an examination of the document, that is, the stipulation of settlement, discloses a purported settlement of only one aspect of the transaction complained of in this suit in the District of Columbia. The Court of Appeals stated, after ordering that the petition for leave to file a petition for writ of mandamus be allowed, that 'the Court assumed that the District Court, after consideration of the recitals in the order will, of its own motion, vacate its stay and proceed to a reconsideration of the matter upon the papers presented in the Court of Appeals and such additional materials as the parties may choose to lay before it, including developments subsequent to said order of December 5, 1958.'
When the matter was remanded to this Court, Judge Tamm certified it to Judge McLaughlin who was then sitting in Motions Court and the matter came on for hearing before Judge McLaughlin. A transcript of the hearing before Judge McLaughlin indicates that Judge McLaughlin construed the recitals in the order as findings of fact and among such findings was one to the effect that the proposed settlement related to only one aspect of the transactions complained of in this suit. This was a reasonable inference to be drawn from the phraseology of the recitals. Accordingly, Judge McLaughlin denied the motion for a stay, principally because the proposed settlement in the New York action did not cover both of the transactions involved in the litigation. It should be observed that Judge McLaughlin's ruling was made on March 20, which was the very same day on which the referee in New York held his second and final hearing. It is reasonable to assume that the last mentioned fact was not before Judge McLaughlin.
Judge McLaughlin, as permitted by the recently enacted statute, 28 U.S.C.A. § 1292, authorized an interlocutory appeal from his order. On April 9, 1959, however, the Court of Appeals denied the application for the interlocutory appeal. In the order denying the application for appeal, it added the following significant provision:
'Nothing in this order or in this Court's order of February 26, 1959, shall be deemed to adjudicate or determine the question whether the 'Stipulation of Settlement' referred to in said order of this Court dated February 26, 1959, does or did include any or all of the transactions involved in said case.'
The defendants then filed the present motion for a stay, which is now before the Court. It was filed on April 13, 1959. The situation here presented is entirely different from that which confronted Judge McLaughlin, in two respects. First, Judge McLaughlin inferred, as he had a right to do from the order of the Court of Appeals, that the Court of Appeals had adjudicated that the stipulation of settlement did not cover the entire controversy. The Court of Appeals, subsequently to Judge McLaughlin's decision, formally indicated, however, that the prior order should not be construed as such an adjudication or determination, and it left the question open. The second change in the situation, and a very significant one, is that the hearing before the referee on the merits of the proposed settlement has already been held and concluded and the referee's report is about to be filed. These facts were not before Judge McLaughlin and drastically change the situation upon which the Court has to determine the present application.
In the light of the considerations here discussed, the motion for a stay of all proceedings in this action is granted until the final disposition of the proceeding in the New York Court for the approval of the proposed settlement of the causes of action there involved, with leave to the plaintiffs to move to vacate the stay if the proceeding in the New York Court is not prosecuted with due diligence.
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