SOCIETE INTERNATIONALE, ETC. v. Brownell, 13460

• Decision Date: 11 April 1957
• Docket Number: 13527.,No. 13460,13460
• Citation: 100 US App. DC 148,243 F.2d 254
• Parties: SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET COMMERCIALES S.A., etc., Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, as Successor to the Alien Property Custodian, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

100 US App. DC 148, 243 F.2d 254 (1957)

SOCIETE INTERNATIONALE POUR PARTICIPATIONS INDUSTRIELLES ET COMMERCIALES S.A., etc., Appellant, v. Herbert BROWNELL, Jr., Attorney General of the United States, as Successor to the Alien Property Custodian, et al., Appellees.

Nos. 13460, 13527.

United States Court of Appeals District of Columbia Circuit.

Argued February 11, 1957.

Decided April 11, 1957.

Petition for Rehearing Denied May 10, 1957.

Mr. John J. Wilson, Washington, D. C., with whom Messrs. Roger J. Whiteford, Philip S. Peyser and Duane G. Derrick, Washington, D. C., were on the brief, for appellant.

Mr. David Schwartz, Attorney, Department of Justice, with whom Messrs. George B. Searls, Sidney B. Jacoby, Paul E. McGraw and Ernest S. Carsten, Attorneys, Department of Justice, were on the brief, for appellees.

Before WILBUR K. MILLER, FAHY and DANAHER, Circuit Judges.

Petition for Rehearing In Banc Denied May 10, 1957.

PER CURIAM.

We consolidated appeals from orders of the District Court which had (1) refused to give appellant (plaintiff) additional time within which to obtain and produce for inspection records of the banking house, H. Sturzenegger & Cie of Basle, Switzerland, not previously obtained and tendered to the appellees (Government) and (2) dismissed plaintiff's complaint with prejudice. Various aspects of the litigation were earlier treated by the District Court,¹ and by us.²

We provided that dismissal of the complaint with prejudice was not to become effective until six months after the receipt by the District Court of our mandate, and not then, if within that period discovery had been provided as ordered. Our mandate was received by the District Court January 24, 1956, and by July 24, 1956, plaintiff had obtained and assembled in Washington many thousands of Sturzenegger records. Plaintiff sought an extension of time from the District Court and submitted a proposed discovery plan which had been approved by the Swiss Government. It was contemplated that full discovery was to be achieved by permitting an independent investigator, a neutral, to inspect the Sturzenegger files to ascertain which of certain unknown remaining records were relevant. It was further contemplated that production of such records could be assured by letters rogatory or by copying. The District Court declined further relief, and on August 3, 1956, plaintiff's complaint was dismissed with prejudice and on August 21, 1956, plaintiff's motion to vacate the order of dismissal was denied.

That plaintiff and its counsel patiently and diligently sought to achieve compliance with the District Court's discovery order is not to be doubted. There is no question of lack of diligence, indeed plaintiff is quite right in its suggestion that delays in the disposition of the case were "inherent in its nature." Basically, however, the problem was summed up adequately by Chief Judge Laws, thus:

"At the end of more than seven years now, I just find no assurance whatever that these papers that we have ordered to be produced will be produced. I don\'t see how the plaintiff is going to be able to comply with that order so long as the Government of Switzerland continues its confiscation of the papers.

"Now, under the laws of the United States, there is no provision whatever for a neutral to decide what papers are relevant or what are

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