LP Steuart, Inc. v. Matthews, 17504.

• Decision Date: 16 January 1964
• Docket Number: No. 17504.,17504.
• Citation: 329 F.2d 234
• Parties: L. P. STEUART, INC., Appellant, v. Joseph H. MATTHEWS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

329 F.2d 234 (1964)

L. P. STEUART, INC., Appellant, v. Joseph H. MATTHEWS, Appellee.

No. 17504.

United States Court of Appeals District of Columbia Circuit.

Argued October 31, 1963.

Decided January 16, 1964.

Petition for Rehearing Denied March 9, 1964.

Mr. Joseph S. McCarthy, Washington, D. C., with whom Mr. Joseph P. Clancy, Washington, D. C., was on the brief, for appellant.

Mr. Joseph D. Bulman, Silver Springs, Md., with whom Messrs. Sidney M. Goldstein, Arthur S. Feld and Roscoe A. Faretta, Washington, D. C., were on the brief, for appellee.

Before EDGERTON and PRETTYMAN, Senior Circuit Judges, and WILBUR K. MILLER, Circuit Judge.

Petition for Rehearing En Banc Denied March 9, 1964.

EDGERTON, Senior Circuit Judge.

Appellee Matthews was injured on February 7, 1957, by a car driven by an employee of appellant L. P. Steuart, Inc. On February 5, 1960, two days before the statute of limitations would have barred his claim, Matthews filed suit. On October 19, 1960, the complaint was dismissed without prejudice, after notice to his then counsel, for failure to prosecute. Two years later, on October 22, 1962, the plaintiff by new counsel moved to reinstate the suit. The District Court granted the motion and the defendant appeals.

In support of appellee's motion to reinstate, his former counsel made affidavit that he had been "beset with personal problems" which involved a serious illness of his wife and the recent deaths of his parents. Appellee made affidavit that he and others in his behalf made "numerous inquiries of" his former counsel who "refused to answer such inquiries" and assured appellee "from time to time" that "the case was proceeding and that settlement of it would be made `soon'." There is no suggestion that there was any foundation for counsel's reassuring statements. In March, 1962, appellee learned, but only by personally checking with the Clerk of the District Court, that his case had been dismissed for failure to prosecute. His former counsel then told him "that steps would be taken to reinstate the case" but took no action, and again refused to answer inquiries.

Rule 60(b) of the Federal Rules of Civil Procedure provides: "On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order or proceeding for * * (1) mistake, inadvertence, surprise, or excusable neglect * * * or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken."

Appellant says appellee's motion to reinstate was barred by the one-year time limit in clause (1) concerning excusable neglect. But the District Court did not act on the theory of excusable neglect. On the contrary, it expressly applied the "`catch-all' rule" 60(b) (6). Counsel's neglect was not excusable and the court, by clear implication, so found. The judge said he felt "that in this particular case the client, plaintiff, a person unfamiliar with court procedures, should not be penalized by the action of his counsel, who admittedly did not attend to the matter when he received notice of the contemplated dismissal." On the part of Matthews himself there was no neglect. Cf. United States v. Karahalias, 205 F.2d 331, on rehearing 334 (2d Cir. 1953). Clause (1) of Rule 60(b) is not and clause (6) is broad enough to permit relief when as in this case personal problems of counsel cause him grossly to neglect a diligent client's case and mislead the client. Clause (6) "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Klapprott v. United States, 335 U.S. 601, 614-615, 69 S.Ct. 384, 93 L.Ed. 266 (1949). In re Estate of Cremidas, 14 F.R.D. 15 (D.Alaska 1953). In concluding that reinstatement was appropriate to accomplish justice in this case, the District Court did not abuse its discretion.

Affirmed.

WILBUR K. MILLER, Circuit Judge (dissenting):

In this case the alleged tort occurred February 7, 1957, but the complaint was not filed until February 5, 1960, just as the three-year period of limitation was about to run. Then followed another period of inactivity on the part of appellee, because of which his complaint was dismissed October 19, 1960, as of the previous August 26. Appellee's counsel who had filed the suit admitted that he received notice of the dismissal, but appellee claims he had no personal knowledge of it until "on or about March 1962." Even then he took no action until October 22, 1962, when through different counsel he filed the motion to reinstate with which we are now concerned. Purportedly acting under Civil Rule 60(b),¹ the trial judge granted the motion to reinstate which was made more than two years after the suit was dismissed for want of prosecution.

The first question is one of timeliness: (a) if the motion was made and granted for "excusable neglect" as permitted by subsection (1) of the Rule, the motion was untimely and reinstatement pursuant to it was error, as such a motion may not be made more than one year after the entry of the order from which relief is sought; (b) on the other hand, if the motion was made and granted under subsection (6), that is, for any reason other than excusable neglect or some other ground listed in subsections (1), (2) and (3), the motion was not timely and reinstatement pursuant to it was error, because the motion was not made within a reasonable time after the entry of the dismissal from which relief was sought, as Rule 60(b) requires. I do not believe that a motion made more than two years later can be said to have been made within a reasonable time, when the circumstances of this case are considered. In fact, as this motion was not made until more than six months after the appellee admits that he personally learned of his counsel's inexcusable neglect, it seems clear to me that the motion was not made within a reasonable time thereafter.

To be sure, the trial judge said he was acting under subsection (6) but I suggest his recitation to that effect is not conclusive. Applying the wrong label to a package does not change the nature of its contents: for example, flour in a sack labelled "corn meal" is flour, nevertheless. So it is here. If the trial judge really acted under subsection (1) pursuant to a motion which was indubitably untimely under that subsection, he did not change that fact by saying he acted under subsection (6).

The order of dismissal was entered because of the "lack of due diligence on the part of the then counsel for plaintiff," as the trial judge found. This was, of course, neglect on the part of appellee's counsel, — the majority opinion characterizes it as gross neglect. The only question on the tardy motion to reinstate — laying aside for the moment the question of limitation — was whether the neglect was excusable and therefore a ground for relief under subsection (1). Obviously it was not, for lack of due diligence is inexcusable and the trial court did not hold otherwise. Certainly, gross neglect, as the majority call it, is inexcusable.

Apparently recognizing that the lack of due diligence on the part of appellee's counsel could not be called excusable neglect, the trial judge concluded that the inexcusable neglect of his counsel which caused the dismissal should not be charged against appellee himself; and held that in this instance, contrary to the general rule, the appellee was not bound by the action of his counsel. If that were true, the only possible result would be that the lack of due diligence which was inexcusable neglect on the part of counsel became excusable neglect on the part of appellee himself. But that would not permit reinstatement under subsection (1) because the motion therefor was...