Opinion
No. 29476.
July 20, 1970.
Harry McCall, New Orleans, La., Paul J. Bschorr, White Case, John M. Johnston, New York City, Bert Lane, Pensacola, Fla., for defendant-appellant.
Robert D. Hart, Jr., Pensacola, Fla., Joe J. Harrell, for plaintiff-appellee.
Before JONES, WISDOM and COLEMAN, Circuit Judges.
In order to protect its jurisdiction, the district court entered a preliminary injunction against the appellant enjoining it from maintaining an action which it had commenced in the district court for the Southern District of New York. It has appealed from the injunctive order.
The controlling principle has been stated many times in the opinions of this Court. From one of them we quote:
"The law has long been settled that upon review of an order granting a preliminary injunction, the function of the appellate court is to determine whether the trial court abused its discretion. We do not review the case in its entirety on its merits. [Citing cases] It is the function of the trial court to exercise its discretion in deciding upon and delicately balancing the equities of the parties involved." Tatum v. Blackstock, 5th Cir. 1963, 319 F.2d 397, 401-402.
We find no abuse of discretion by the district court in entering its injunctive order. The order is affirmed.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
The Petition for Rehearing is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is denied.
I respectfully dissent.
To my mind, since the parties and issues in the New York action were different from the parties and issues in the Florida action, the district judge in Florida exceeded his discretionary authority in issuing a preliminary injunction restraining American Fidelity Insurance Company from prosecuting its suit in New York.