Woodham v. American Cystoscope Company of Pelham, NY

Citation335 F.2d 551
Decision Date03 August 1964
Docket NumberNo. 20788.,20788.
PartiesQuillie B. WOODHAM, Appellant, v. The AMERICAN CYSTOSCOPE COMPANY OF PELHAM, N. Y., and the XYZ Corporation, Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Jack Crenshaw, Sanford D. Weiss, Montgomery, Ala., for appellant.

Harry L. Greene, Burt DeRieux, Atlanta, Ga., for appellees.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and CARSWELL, District Judge.

WISDOM, Circuit Judge.

The question this appeal presents is whether dismissal of the complaint was a proper sanction for failure of the plaintiff's counsel to comply with a certain local rule of the district court.

The District Court for the Northern District of Georgia, under the authority of F.R.Civ.P. 83,1 promulgated certain rules to govern its practice. The pertinent local rules do not conflict with the Federal Rules of Civil Procedure; at least, they do not conflict directly with the Federal Rules. On their face, the local rules seem reasonable; at least, they are reasonable in their application to lawyers admitted to practice in the district. The district judge to whom the case was assigned is an able, experienced judge with a reputation for fairmindedness. The plaintiff's attorney is a lawyer of acknowledged high standing in Alabama and in the Fifth Circuit. In spite of all this, the local rules turned out to be a series of traps for the free-of-fault plaintiff. Her lawyer, who had not been admitted to practice in the Northern District of Georgia, was unaware of the district court's ground rules. Because of the failure of the plaintiff's lawyer to comply with the local rules, the district court dismissed the complaint. We reverse.

I.

The plaintiff alleges that she was painfully and severely injured March 14, 1962, when a defective catheter, manufactured by the defendant, The American Cystoscope Company, broke inside her person during an operation. March 13, 1964, the last day before the claim would have prescribed, the plaintiff, a resident of Alabama, sued the defendant, a New York Corporation, in the United States District Court for the Northern District of Georgia. The complaint states that the corporation was "doing business in the State of Georgia by and through its agent, servant, and employee, James E. Blankenship."

The first stumble in the case occurred when the United States Marshal served the complaint not upon the agent, Blankenship, but upon his wife. The defendant's counsel filed a "Motion to Quash the Service of the Summons." The motion was well taken, as the plaintiff's counsel has consistently conceded.

The defendant coupled its motion to quash with a "Motion to Dismiss the Complaint Pursuant to Rule 12(b)" for lack of jurisdiction. As required by Local Rule 21(a),2 the defendant filed with its motion a brief of authorities and supporting affidavits. Local Rule 21 (a) also requires the plaintiff's counsel to file, within ten days, a response accompanied by a reply brief and counteraffidavits. Unfortunately for the plaintiff, her Alabama counsel had no knowledge of this rule. Nor did he know that Local Rule 1 required that he be admitted to practice in the district court and that he associate local counsel.3 Since the motion raised an issue of fact, the plaintiff's counsel took no action, expecting that in due course he would be notified of the date of a hearing on the merits of the motion and that he would be granted leave to take depositions. To his surprise, without further ado, the district court dismissed the complaint. The court's order of April 26, in full, reads:

"No response to defendant\'s motion to quash service of process and dismiss the complaint has been filed by plaintiff in accordance with Local Rule No. 21 (a).
"Therefore, defendant\'s motion to quash and dismiss is granted and the complaint is hereby dismissed."

As soon as the plaintiff's attorney learned of this action, he tried, unsuccessfully, to be admitted to practice in the district court. Then he associated an Atlanta attorney. May 1, 1963, the plaintiff's attorneys filed, jointly, a motion entitled, "Motion to Set Aside Order Dismissing the Case." This pleading recites, in part: "Plaintiff's attorneys, being unfamiliar with the rules of this Court, filed no responsive pleading after service of defendant's Motion to Quash, awaiting notice from the court as to the date set for the hearing thereon as is the practice in our local Federal Court." The motion concedes that the service was improper and requests that Blankenship, the defendant's agent, be served. May 24 the plaintiff filed an amendment to the Motion, adding the affidavit of the plaintiff's first counsel. June 12, 1963, the district court denied the motion. In its order, the court referred to the violation of another local rule, Rule 20(a)4 as the "primary" reason for denying the motion:

"This Court is denying the motion to set aside said Order of Dismissal, primarily because of the continued violation by plaintiff\'s counsel of Local Rule 20(a) of this Court, which requires counsel to perfect service on defendants within sixty (60) days from the date of filing. This action was filed March 13, 1963 and now almost ninety (90) days after that date service has not been perfected upon American Cystoscope Makers, Inc. (erroneously named by plaintiff as The American Cystoscope Company of Pelham, N. Y.)."

We observe, in passing, that the plaintiff's counsel could not perfect service until reinstatement of the complaint.5

The court added:

"One reason advanced by plaintiff\'s counsel as to why no response was filed by plaintiff\'s counsel to the motion to dismiss is that plaintiff\'s counsel was not familiar with Local Rule of this Court, being Rule 21(a) requiring responses to such motions, and also briefs to be filed within ten (10) days. Failure of plaintiff\'s counsel to know of such Rule evidently arises from the violation by plaintiff\'s counsel of still another Rule of this Court, to-wit, that local counsel should be joined in the complaint. The complaint filed March 13, 1963, has named in it no attorney admitted to practice at the Bar of this Court, nor any local attorney so admitted. Not until May 13, 1963, sixty (60) days after the filing was any local counsel named of record by the plaintiff.
"It thus appears that two defendants were named, as to one, plaintiff not knowing the proper jurisdiction for suit,6 and as to the other, naming an agent for service upon whom service has never been perfected; that a proper motion to dismiss with brief and affidavits were filed, but no counter-affidavits and brief were filed in response thereto; that although the Rules of this Court require service to be perfected within sixty (60) days after the filing, no service has now been perfected at a date almost ninety (90) days after said filing. For all these reasons this Court does not consider that plaintiff is in a position to move this Court to overlook the various violations of the Rules of this Court, and said case still stands DISMISSED."

The plaintiff filed a notice of appeal July 11, 1963. The notice states that the appeal is from the order of June 12, 1963.

II.

The appellee contends that the order of June 12, denying the motion to set aside the dismissal and reinstate the case, is not an appealable order.

In relevant part, F.R.Civ.P. 60(b) provides:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect. * * *"

If the plaintiff's motion is within the ambit of Rule 60(b), the denial of the motion is a final, appealable judgment. In re Marachowsky Stores Co., 7 Cir. 1951, 188 F.2d 686, cert. den'd, 342 U.S. 822, 72 S.Ct. 41, 96 L.Ed. 622; Greenspahn v. Joseph E. Seagram & Sons, 2 Cir. 1951, 186 F.2d 616; and Cromelin v. Markwalter, 5 Cir. 1950, 181 F.2d 948. Undoubtedly, the plaintiff's unhappy plight was a product of "mistake, inadvertence, surprise, or perhaps excusable neglect". In determining whether to visit the sins of the attorney on the innocent party, however, the trial judge has wide latitude in the exercise of sound, judicial discretion. We need not struggle with that standard here, because we conclude that the plaintiff's motion should be considered as a motion for reconsideration under Rule 59.7

Rule 59(e) deals with motions for a new trial and to alter judgments. Even before the rule was amended in 1946 by the addition of subsection (e), courts treated subsection (a) (2) as broad enough to include motions for reconsideration of orders finally disposing of actions before trial. Jusino v. Morales & Tio, 1 Cir. 1944, 139 F.2d 946. Since 1946, a motion for reconsideration, such as the motion for reinstatement here, clearly falls within subsection (e). Gainey v. Brotherhood of Railway & Steamship Clerks, etc., 3 Cir. 1962, 303 F.2d 716.

Orders dismissing motions under Rule 59 are not appealable. However, under F.R.Civ.P. 73,8 such motions toll the thirty day time limit for appeals from final judgments. Here the motion to reinstate was filed May 1, well within the ten day limit, and the time for appeal began to run only after the denial of the motion on June 12, 1963. As Judge Hastie said in Gainey:

"Since the addition of subsection (e) the courts which have considered the problem seem to have experienced no difficulty in concluding that a motion for rehearing or reconsideration made within ten days after the entry of an appealable order is within the coverage of Rule 59 and, therefore, under Rule 73 terminates the running of an appeal time. Yates v. Behrend, 108 U.S.App.D.C. 56, 1960, 280 F.2d 64; Salmon v. City of Stuart, Florida, 5 Cir. 1952, 194 F.2d 1004. And see Notes of Advisory Committee on Rules, 28 U.S.C.A., Federal Rules of Civil Procedure, Rule 59. We ourselves have recently indicated that such is the case, although a somewhat
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