opinion: FEDERAL GLASS COMPANY, Appellant, v. Samuel LOSHIN, et al., Appellees.
  No. 23226.
  United States Court of Appeals, Second Circuit.
  Motion Submitted Oct. 4, 1954.
  Decided Dec. 3, 1954.
  Clark, Chief Judge, dissented.
  Irving Levine, Danbury, Conn., for the motion.
  Wiggin and Dana, New Haven, Conn., and Corbett, Mahoney & Miller, Columbus, Ohio (Thew Wright, Jr., New Haven, Conn., of counsel), for appellant.
  Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit J udges.
  L. HAND, Circuit Judge.
  The defendants move to dismiss an appeal, taken by the plaintiff from an order that denied its motion for a summary judgment in an action to enjoin the defendants (a) from copying the plaintiff’s trade name and corporate title, (b) to compel them to account for any profits, and (c) to pay damages. (The complaint included a prayer both for a permanent injunction and for an injunction pen-dente lite). The plaintiff’s motion came on to be heard after answer upon numerous affidavits filed by both parties, and upon the plaintiff’s answers to interrogatories ' put by the defendants. Judge Smith denied it in a written opinion, 126 F.Supp. 737, substantially for the reason that the plaintiff had not proved that its trade name had become widely enough known in the defendants’ market before the defendants had themselves begun business. Both parties agree that the order was interlocutory; their difference is whether it is nevertheless within the meaning of § 1292(1) of Title 28 U.S.C.A., as an order “refusing” an injunction. The decisions are not uniform. We held in Raylite Electric Corp. v. Noma Electric Corporation, 2 Cir., 170 F.2d 914, that an appeal lay from such an order, and the Fifth Circuit did the same in International Forwarding Co. v. Brewer, 181 F.2d 49. On the other hand the Third Circuit in Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160, examined the question with much learning and dismissed the appeal, and it has followed that decision in a later case, Hook v. Hook & Ackerman, Inc., 213 F.2d 122; and Mr. Moore accepts their view. We agree that, as Judge Hastie said in Mor-genstern Chemical Co. v. Schering Corp., supra [181 F.2d 161], our decision was made “without analysis of the problem”; owing to the fact that we mistakenly thought that the question did not demand analysis.
  Section 1291 provides for appeals from final judgments of all sorts, necessarily including an appeal from a final judgment denying a permanent injunction. Section 1292 allows appeals from four different kinds of interlocutory orders, of which the first is those “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” If these words be read literally, they appear to us indubitably to cover the denial of a motion for a permanent injunction, regardless of what may be the procedure or grounds of the moving party. Indeed, we do not understand that those, who deny any appeal, think otherwise; they base their interpretation upon the theory that the decision does not settle, and indeed does not even tentatively decide, anything about the merits of the claim; all it does is to hold that, upon the facts as shown, the cause must await a trial. Even were that so, it scarcely seems an adequate reason for disregarding language so unconditional as that of the section; but we do not wish to rely upon that. Under Rule 56(c), 28 U.S.C.A., to be granted a summary judgment, the moving party must show, not only that there is no “genuine issue as to any material fact,” but also that he “is entitled to a judgment as a matter of law.” If the decision is based upon these later words, it is obvious that a denial may finally settle a great deal, for usually a later judge will accept the law already laid down in the same action by an earlier judge. Moreover, to reach such a decision the “discretion of the chancellor” may be “invoked”; “equitable considerations” may be “weighed” ; or the “conclusion” may be “reached with respect to the equity of the claim that a restraint should be imposed.” But, even when the denial is because there is a “genuine issue as to any material fact,” the decision is not confined to deciding that the claim must await a trial, although that of course is one of its results. Subdivision (c) requires the judge to pass upon “the pleadings, depositions, and admissions on file, together with the affidavits” ; and subdivisions (d) and (e) not only provide that the affidavits on both sides “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”; but also that so far as may be possible all facts shall be decided even though the motion be denied. We cannot escape the belief that the decision involves much more than that it will be better to await' a trial; and this is borne out by a substantial body of decision that the question is the same as that raised by a motion to direct a verdict in an action tried to a jury. For example, in Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967, the Supreme Court said: “But at least a summary disposition of issues of damage should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”
  It is of course true that the motion is not a substitute for a trial, against the possibility of which courts — ourselves especially — have been solicitous to protest. There always remains the high hurdle over which the plaintiff must leap, who would secure such a judgment: i. e. the record, as it comes before the court, is of necessity limited to evidence that can be put into writing or contained in exhibits; and, as we have never tired of saying, what is left out may be, and frequently is, the most important part. Besides, at least in actions triable to a jury, the handicap is greater even than this; for the court must refuse to decide any issues whose answer admits of reasonable doubt. Therefore, to say, even though the denial has been because there was a “genuine issue of fact,” that nothing is decided, and that nothing can be settled, appears to us an untenable generalization. That everything is not decided is certainly no objection, else denials of preliminary injunctions would also be ex-eluded, and § 1292(1) would be altogether nullified.
  Finally, although a preliminary injunction gives the plaintiff relief until the trial, it insures him of nothing more, and he cannot arrange his affairs upon the basis of any protection after the trial. That uncertainty, which may last over a year, may be nearly as serious as the absence of any protection at all. It appears to us therefore that the considerations that presumably moved Congress in 1895 to grant appeals from interlocutory denials of preliminary injunctions— i. e. because it was unfair to leave suitors unprotected pending trial — should be deemed to apply to denials of permanent injunctions. The original omission of any mention of these is readily accounted for by the fact that it was not until 1938, when the New Rules went into effect, that it was possible to move for summary judgment in a Federal Court. Although we are impressed by the high authority of those who take the opposite view, we are not persuaded that we should change our original ruling; and the motion will be denied.
  Motion denied.
  . Moore, Federal Practice, Vol. 6, pp. 2321, 2322.
  . Fishman v. Teter, 7 Cir., 133 F.2d 222, 223; Madeirense Do Brasil S/A v. Stul-man-Emrick Lumber Co., 2 Cir., 147 F.2d 399, 405; Dewey v. Clark, 86 U.S. App.D.C. 137, 180 F.2d 766, 772; Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269, 271.
  . 28 St. at L. 666.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.