UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: February 28, 1972.
BETHLEHEM MINES CORPORATION, APPELLEE
UNITED MINE WORKERS OF AMERICA, DISTRICT 2, ET AL., APPELLANTS. REPUBLIC STEEL CORPORATION, APPELLEE V. UNITED MINE WORKERS OF AMERICA, ET AL., APPELLANTS.
Seitz, Chief Judge, Kalodner and Gibbons, Circuit Judges. Kalodner, Circuit Judge, Concurring in Part and Dissenting in Part.
Author: Per Curiam
Opinion OF THE COURT
Appellants, United Mine Workers of America and individual union members appeal from the order of the district court denying their motion for costs, expenses and attorneys' fees. The circumstances giving rise to this appeal are factually and legally the same as those in United States Steel Corp. v. United Mine Workers, 456 F.2d 483 (3d Cir. 1972). The order of the district court will be reversed and the cases remanded to the district court for the entry of a judgment consistent with that opinion awarding the stipulated attorneys' fees and the stipulated expenses except for statutory costs on the prior appeal.
Appellee Republic Steel Corporation has moved to dismiss the appeal of appellant Trbovich. Republic contends that Trbovich is no longer a party to the action because Republic had voluntarily dismissed its complaint against him and that Trbovich was never brought within the jurisdiction of the court because he was not served with process in the original action. Trbovich was bound by the terms of the injunction order and, so bound, he appealed. No issue as to his standing was raised on the original appeal in which he was successful. The plaintiff cannot after his successful appeal deprive him of reimbursement for attorneys' fees and costs by a voluntary dismissal. The motion to dismiss his appeal will be denied and the case remanded for proceedings consistent with this opinion.
KALODNER, Circuit Judge, Concurring in Part and Dissenting in Part:
I agree with the reversal of the District Court's Order.
I also agree with the denial of the motion to dismiss the appeal of the appellant Trbovich, filed by the appellee Republic Steel Corporation.
I disagree, however, with the majority's direction to the District Court to enter a judgment in the instant proceedings, awarding the stipulated attorneys' fees and expenses, for the reason stated in my Concurring-in-Part and Dissenting-in-Part Opinion in United States Steel Corp. v. United Mine Workers of America, 456 F.2d 483 (3rd Cir. 1972).
I would reverse the District Court's Order with directions to enter a judgment awarding the defendants below the amount of the injunction bonds posted by the plaintiffs, in the event that the defendants do not choose to exercise their right to withdraw their pending Motion for allowance of the stipulated attorneys' fees and expenses.
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