UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
June 20, 1968
ROBERT M. KNUTH, ET AL.
ERIE-CRAWFORD DAIRY COOPERATIVE ASS'N., ET AL.
395 F.2d 420.
Seitz, Circuit Judge.
Opinion of the Court
SEITZ, Circuit Judge:
This is a petition for rehearing in banc on an opinion of this court dated May 3, 1968.
We decided, inter alia, that the district court erred in dismissing the class action aspects of the amended complaint. We reversed without prejudice and ordered the district court to use the procedure provided by new F.R. Civ. P. 23(c). It was felt that this procedure was more likely to produce trustworthy evidence for the district court to use in deciding whether, "numberwise at least," plaintiff could fairly and adequately protect the interest of the class. Petitioner asserts that we erred in ordering the district court to apply the provisions of 23(c) to determine whether plaintiff fulfilled the 23(a)(4) requirement that "the representative parties will fairly and adequately protect the interests of the class." Petitioner further requests that if rehearing is not granted, the question of whether the inquiry into adequacy of representation is to be made under 23(c)(2) or 23(d)(2) should be clarified. While we deny rehearing in banc, we do agree that clarification of the class action aspect of the opinion is appropriate.
At the outset we reaffirm our belief that the use of F.R. Civ. P. 23, as amended Feb. 28, 1966, eff. July 1, 1966, is entirely feasible and will work no injustice in this case. We wish to make it perfectly clear that we were not finally deciding the "class action" issue. Thus, we direct that the district court's judgment dismissing the class action aspects of this case be vacated rather than reversed.
The district court will, at the appropriate time, decide the issue as to whether the action may be maintained as a class action. Consequently, our opinion reference to 23(c) should not be taken as an implied judgment that the action is maintainable under 23(b)(3). Nor was that language intended to be understood as precluding the use of some other notice procedure (e.g., 23(d)) to assist the district court in determining whether, numberwise, the plaintiff could fairly and adequately protect the interests of the class.
The petition for rehearing will be denied.
McLAUGHLIN, Circuit Judge, votes to deny the petition for rehearing.
KALODNER, Circuit Judge, would grant the petition for rehearing.
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