Woodham v. American Cystoscope Company of Pelham, NY
Citation | 335 F.2d 551 |
Decision Date | 03 August 1964 |
Docket Number | No. 20788.,20788. |
Parties | Quillie B. WOODHAM, Appellant, v. The AMERICAN CYSTOSCOPE COMPANY OF PELHAM, N. Y., and the XYZ Corporation, Appellees. |
Court | United 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.
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.
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:
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:
We observe, in passing, that the plaintiff's counsel could not perfect service until reinstatement of the complaint.5
The court added:
The plaintiff filed a notice of appeal July 11, 1963. The notice states that the appeal is from the order of June 12, 1963.
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:
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