Gamble v. Pope & Talbot, Inc.

• Decision Date: 20 July 1962
• Docket Number: No. 13578.,13578.
• Citation: 307 F.2d 729
• Parties: John GAMBLE v. POPE & TALBOT, INC. v. JARKA CORP. OF PHILADELPHIA. Appeal of Timothy J. MAHONEY et al.
• Court: U.S. Court of Appeals — Third Circuit

307 F.2d 729 (1962)

John GAMBLE v. POPE & TALBOT, INC. v. JARKA CORP. OF PHILADELPHIA.

Appeal of Timothy J. MAHONEY et al.

No. 13578.

United States Court of Appeals Third Circuit.

Argued November 13, 1961.

Decided July 20, 1962.

Certiorari Denied November 5, 1962.

T. E. Byrne, Jr., Philadelphia, Pa., for appellants (Krusen, Evans & Byrne, Philadelphia, Pa., on the brief).

John J. Dautrich, Philadelphia, Pa., amicus curiae (Michael H. Malin, and White & Williams, Philadelphia, Pa., on the brief).

Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and SMITH, Circuit Judges.

Certiorari Denied November 5, 1962. See 83 S.Ct. 187.

McLAUGHLIN, Circuit Judge.

On April 24, 1958, John Gamble, a longshoreman, commenced a personal injuries action in the United States District Court for the Eastern District of Pennsylvania against Pope & Talbot, Inc., a shipowner. On September 22, 1959, the latter with leave of court impleaded Jarka Corp. of Philadelphia, the stevedoring company which had employed Gamble. The case was tried in March of 1961 resulting in verdicts in favor of Gamble against Pope & Talbot with indemnity in favor of the latter against Jarka Corp. The merits of the litigation are not before us. Our problem is solely concerned with pretrial procedure.

In effect in the United States District Court for the Eastern District of Pennsylvania are two "standing orders" which provide as follows:

"PRE-TRIAL CONFERENCES IN OTHER THAN PROTRACTED CASES

"(Adopted October 23, 1958)

"1. The Clerk of the Court shall list for pre-trial all civil cases which have been answered for trial on the Jury and Non-Jury Preliminary Call lists. The filing of a pre-trial memorandum by all counsel is mandatory. * * *

* * * * * *

"3. * * * Not later than 30 days after the publishing of said civil pre-trial list, counsel for plaintiff shall file a written pre-trial memorandum with the Clerk of the Court and serve two copies on all other counsel of record.

"Within 30 days of receipt of such pre-trial memorandum, all counsel served with plaintiff\'s memorandum shall file a written pre-trial memorandum with the Clerk of the Court and serve two copies on all other counsel of record. * * *

"Plaintiff\'s pre-trial memorandum shall contain the following:

* * * * * *

"C. The names and addresses of all witnesses (except rebuttal) whom the plaintiff expects to call to testify at the time of trial. * * *

* * * * * *

"Defendant\'s counsel shall also include in his pre-trial memorandum the same material pertaining to defendant\'s case as required of plaintiff in paragraphs C, * * *.

"IMPOSITION OF SANCTIONS WITH RESPECT TO PRE-TRIAL PROCEDURES

"(Adopted February 8, 1960)

"For failure to appear at a pretrial conference, or to participate therein, or to prepare therefor, the Court, in its discretion, may make such order with respect to the imposition of fines, costs and counsel fees, as is just and proper; with respect to the continued prosecution of the cause (complaint, cross-claim or counterclaim), a dismissal may be entered, or as to the defense, the preclusion of all or any part thereof, as is likewise just and proper."

In compliance with the October 23rd standing order, counsel for the plaintiff and third-party defendant filed their pretrial memoranda with the court and served their adversaries with the required copies. The defense memorandum was not filed until the day before the pretrial conference. It was more than ten months overdue. There is no question but that counsel's lapse was unintentional. After receiving regular notice from the court clerk of the pending pretrial conference, he reviewed his file, caught the omission, and then proceeded to prepare a full memorandum.

On December 8, 1960, leave having been granted at the pretrial conference, counsel for the plaintiff filed a written motion to have the court strike the untimely memorandum. Thereafter the court filed a memorandum opinion and order denying the motion as too drastic in the circumstances but, in view of the long though unintentional delay, (1) struck the names of certain proposed witnesses appearing on the memorandum thereby precluding the defendant from calling them as witnesses at the trial; (2) imposed upon the defendant's counsel "a fine of one hundred dollars" payable to the United States; and (3) permitted the plaintiff to "submit within thirty days an appropriate order imposing upon defendant all costs, expenses and reasonable counsel fees caused by defendant's delay in filing its pre-trial memorandum." The trial was held with the results as stated.

Viewing the imposition of the fine upon him as carrying "the criminal hallmark", defendant's counsel filed a notice of appeal in compliance with the Federal Rules of Criminal Procedure (and thus well within the time requirement of the Federal Rules of Civil Procedure). He captioned the appeal in the original cause and did not name an appellee. At his request, the clerk of the court served a copy of the notice of appeal upon the United States Attorney. The latter has neither appeared nor filed a brief. Leave was granted John J. Dautrich, Esq. to appear as amicus curiae in opposition to appellant's position.

The issue is whether the district court has the power to fine counsel for a party engaged in private civil litigation for not complying with the "standing orders" of the court. Appellant does not here question the district court's action in striking the names of the proposed trial witnesses contained in the memorandum. It is also noted that plaintiff has not submitted a proposed order covering financial remuneration for defendant's delay.

The district court justified the imposition of the fine by saying that:

"In view of the time of judicial employees of the Government wasted as a result of the late filing of this memorandum, a fine shall be paid by counsel for the defendant to the United States of America (see Standing Order of February 8, 1960). Such a fine will be more substantial in subsequent cases of such long delay in filing a pre-trial memorandum, but the fact that this is the first time in the experience of the pre-trial judge that a fine has been required is being taken into consideration in this case. Also, it is suggested to opposing counsel that, in the future, their adversary should be reminded of his delinquency if defaults and other remedies are to be sought for its long continuance."

Appellant's contention is that the district court has not been given authority and possesses no inherent power to fine an attorney who has not been held in contempt nor given a hearing. We must agree.

The trial judge did not regard the attorney's default as constituting contempt of the court; he did regard it as falling within the sanction of the standing order. The contempt designation was nowhere used in the order appealed from or in the standing order. There were no formal contempt proceedings. Appellant suggests that the court's action in fining him "had to be contempt or it was nothing." Amicus urges that it was "* * * simply * * * an exercise of disciplinary authority, with no necessary criminal connotation." He further asserts that "* * * it certainly may not be assumed that Congress intended * * * by the contempt statute, 18 U.S.C.A. § 401, 62 Stat. 701 to destroy or limit the separate and distinct power of courts to discipline their attorneys in matters not constituting contempts."

However it be called the effect was to punish defendant's attorney for contempt in failing to file the defense pretrial memorandum within time. Amicus does not point to and we cannot find any authority for it. There is nothing in the Federal Rules which authorizes sanctions in the form of penalties to be imposed upon an attorney in a civil litigation.¹ To impose such a penalty for conduct not found to be contemptuous and without the procedural safeguards given by Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. violates the Fifth Amendment.

Amicus next contends that even if the Federal Rules do not give explicit authority to the district court, Rule 83 of the Federal Rules of Civil Procedure, 28 U.S. C.A., authorizing the district court "to make and amend rules governing its practice not inconsistent with these rules * * *" is an appropriate source of power. With an admiralty cause involved here both Rule 83 and its admiralty counterpart, Admiralty Rule 44, 28 U.S.C.A., are applicable. Although they are an "affirmative grant of authority", see Miner v. Atlass, 363 U.S. 641, 647, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960); cf. United States v. Hvass, 355 U.S. 570, 575, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958), still the local rule making power, while not limited to the trivial, cannot extend to basic disciplinary innovations requiring a uniform approach. Whether an attorney should be himself fined when, because of office oversight or neglect, he is late in complying with an order of the court is a substantial independent question which calls for mature consideration by the body charged with making Rule recommendations, the Supreme Court's advisory committee. See 28 U.S.C.A. § 331; Miner v. Atlass, supra, 363 U.S. at 649-650, 80 S.Ct. at 1305-1306.

Absent authority, the district court's power to penalize appellant is limited by the contempt statute, 18 U.S.C.A. § 401, and by Rule 42 of the Federal Rules of Criminal Procedure. Section 401 permits the district court to impose fines only for specified conduct enumerated therein. If the conduct does not fall within the statute, it has no such power. That problem does not arise in this appeal as there is no indication that the contempt statute was being invoked, and Rule 42 was not followed.

We stress that this is an ordinary pretrial procedure case. It is not a cause célèbre. It should be kept headed into the wind. It furnishes no need or reasonable excuse for some collateral defense of pretrial practice. The latter has long since been...