LAY, Chief Judge.
Pickands Mather & Co. sought leave in the district court to file a third-party complaint against former co-defendants based on a claim for contribution under Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d 1179 (8th Cir. 1979) (under certain circumstances an antitrust defendant may be permitted to obtain contribution from its co-conspirators). The United States Magistrate denied Pickands Mather's motion on the grounds that the litigation would be complicated and delayed by the reintroduction of defendants who had previously settled their differences with the plaintiffs. The magistrate reasoned that in doing so the benefits of the settlement could be negated. The district court agreed and the third-party complaint was dismissed without prejudice. Pickands Mather appealed to this court, and the State of Minnesota filed a motion to dismiss the appeal for lack of a final order.
The district court's order denying Pickands Mather leave to file its third-party complaint is not an appealable order
In In Re Cessna Distributorship Antitrust Litigation, 532 F.2d 64 (8th Cir. 1976), this court held that the district court's denial of leave to defendants to file cross-claims was an appealable order under the collateral order exception to the final judgment rule.
We deem it significant that subsequent to our Cessna decision the Supreme Court in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), has further emphasized the limited application of the Cohen doctrine. This more recent decision confirms our earlier doubts as to the appealability of discretionary orders affecting the joinder of parties and claims to pending litigation.
In Coopers & Lybrand, the Court held nonappealable a district court's order denying class certification because (1) the district court could subsequently revise the order, (2) the class determination involved considerations enmeshed in the merits of the plaintiff's cause of action, and (3) effective review after final judgment was available. 437 U.S. at 469, 98 S.Ct. at 2458.
The Court in Coopers & Lybrand indicated that review of the district court's order denying class certification involved considerations enmeshed in the merits of the main action. 337 U.S. at 469, 98 S.Ct. at 2458. While we recognize that review of the district court's exercise of discretion in denying the third-party claims would not reach or affect the merits of the main action, we also are cognizant that a favorable disposition on the merits of the main action, we also are cognizant that a favorable disposition on the merits of the main action for Pickands Mather would moot its claim for contribution from the proposed third-party defendants it attempts to implead. Pickands Mather's successful assertion of a defense to the main action would render the participation of the third-parties fruitless and unnecessary. This in itself is strong reason for denying jurisdiction over this appeal. Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341, 1343 (7th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 565, 30 L.Ed.2d 553 (1971).
The ordinary nonappealability of orders granting or denying joinder of parties, consolidation or severance suggests the nonappealability of the matter before us. See NAACP v. Michot, 480 F.2d 547 (5th Cir. 1973) (denial of consolidation was not an appealable order; alternative holding); Levine v. American Export Industries, Inc., 473 F.2d 1008 (2d Cir. 1973) (order granting consolidation was not appealable); Fowler v. Merry, 468 F.2d 242 (10th Cir. 1972) (order denying leave to file an amended complaint joining an additional party was nonappealable); Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341 (7th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 565, 30 L.Ed.2d 553 (1971) (while implying that an order dismissing a third party complaint without prejudice was not an appealable collateral order, the court seems to have reached the merits of the appeal; id. at 1346); Hartford Fire Insurance Co. v. Herrald, 434 F.2d 638 (9th Cir. 1970) (order denying plaintiff's motion to join a party defendant was not an appealable collateral order); Nolfi v. Chrysler Corp., 324 F.2d 373 (3d Cir. 1963) (denial of consolidation was nonappealable). But see Katz v. Realty Equities Corp. of New York, 521 F.2d 1354 (2d Cir. 1975) and Garber v. Randell, 477 F.2d 711 (2d Cir. 1973).
We note the probable value of appellate review for Pickands Mather is slight because it is unlikely that we would find an abuse of discretion by the district court in its attempts to keep a lawsuit manageable and progressing towards trial. See, e. g., Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (review of district court's exercise of discretion in certifying an order for review under rule 54(b)); In Re Cessna Distributorship Antitrust Litigation, 532 F.2d 64, 68 (8th Cir. 1976); Katz v. Realty Equities Corp. of New York, 521 F.2d 1354, 1362 (2d Cir. 1975); Allegheny Airlines, Inc. v. LeMay, 448 F.2d 1341 (7th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 565, 30 L.Ed.2d 553 (1971). Additionally, the risk of error by the district court is small because arguments were presented on the motion and the reasons for denial fully set out.
The burden of time and money on the parties, the district court and this court which would be imposed by automatic review of such interlocutory orders weighs heavily against appealability. We find the concerns expressed in Borden Co. v. Sylk, 410 F.2d 843 (3d Cir. 1969), particularly appropriate:
Id. at 846.
We hold that this court has no jurisdiction to entertain an appeal from an order of the district court denying a party leave to file a third-party complaint. The underlying basis for this decision is that the Cohen exception to the final judgment rule of 28 U.S.C. § 1291 was not intended as a vehicle for the review of a trial court's discretionary attempts to keep a case manageable and progressing to trial. Professor Moore argues that "[a] significant aspect of the Cohen rule — and one that should limit its application — is that it arose from a remarkable case, one that raised very substantial questions...." 9 Moore's Federal Practice ¶ 110.10, at 130 (2d ed. 1980). An alleged abuse of discretion by the district court in denying leave to join third-parties does not present a "serious and unsettled" question of law of the same magnitude as did Cohen. To extend the Cohen rule to this area is to invite frustration and delay. 9 Moore's Federal Practice ¶ 110.13, at 184 (2d ed. 1980).
The appeal is dismissed for want of jurisdiction.
The district court's dismissal without prejudice of Pickands Mather's third party claims distinguishes its order from the appealable orders in other antitrust contribution cases where final judgments had been rendered on the claims by the district court. See Professional Beauty Supply, Inc. v. National Beauty Supply, Inc., 594 F.2d 1179, 1181 (8th Cir. 1979); Wilson P. Abraham Constr. Corp. v. Texas Indus., Inc., 604 F.2d 897, 899 (5th Cir. 1979); Olson Farms, Inc. v. Safeway Stores, Inc., [1979-2] Trade Cas. (CCH) ¶ 62,995 (10th Cir. 1979).