374 F.2d 320 (D.C. Cir. 1967), 20359, Newberry v. Cohen

Docket Nº:20359, 20412.
Citation:374 F.2d 320
Party Name:Bessie D. NEWBERRY, Petitioner, v. Nathan H. COHEN et al., Respondents. Bessie D. NEWBERRY, Appellant, v. Nathan H. COHEN et al., Appellees.
Case Date:February 06, 1967
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 320

374 F.2d 320 (D.C. Cir. 1967)

Bessie D. NEWBERRY, Petitioner,


Nathan H. COHEN et al., Respondents.

Bessie D. NEWBERRY, Appellant,


Nathan H. COHEN et al., Appellees.

Nos. 20359, 20412.

United States Court of Appeals, District of Columbia Circuit.

February 6, 1967

Argued Dec. 15, 1966.

Page 321

L. J. H. Herwig, Washington, D.C., for petitioner in No. 20, 359 and appellant in No. 20, 412.

Margaret A. Haywood, Washington, D.C., for appellee, Monarch Const. corp.

Roger M. Whelan, Washington, D.C., with whom Alfred S. Fried, Riversdale, Md., was on the brief, for appellees Lapin and Empire Realty Service, Inc.

Wm. A. Glasgow, Washington, D.C., entered an appearance for appellee Union Trust Co. of District of Columbia.

Before PRETTYMAN, Senior Circuit Judge, LEVENTHAL, Circuit Judge, and COFFIN, [*] Circuit Judge of the United States Court of Appeals for the First Circuit.

LEVENTHAL, Circuit Judge:

Although appellant's brief sets forth seven 'questions presented', some of which go to the merits of a case as yet untried, and others of which concern a case not before us, 1 we find but a single issue presented by this appeal: whether, under circumstances outlined below, the District Court erred in refusing to reinstate appellant's action which had been dismissed under its Local Rule 13. 2 We reverse and direct that the action be reinstated.

Page 322

In 1964, appellant entered into a series of agreements for the conversion of her home and garage and the installation of an 'American Towne House Front.' Claiming to have been defrauded in various ways, appellant brought an action on September 19, 1964, against six defendants, some individuals and some corporations, seeking damages for fraud and deceit. The complaint was subsequently amended to seek, in addition to money damages, rescission and cancellation of the agreements and other equitable relief. Four of the defendants answered the amended complaint in March 1965. 3 The case became ensnarled in a welter of motions and pleadings.

As appellees see it, the case is quite simple. A motion to dismiss for failure to prosecute that was filed by appellee Monarch Construction Co. (on July 16, 1965) was denied by the District Court (in October 1965). Thereafter, on April 28, 1966, after a warning notice had been transmitted to the appellant's counsel, a dismissal of appellant's case was duly noted 'in accordance with the requirements of Local Rule 13.' Quoting from the brief of appellee Monarch--

From July 1965, until March 1966, no significant action was taken by appellant, and specifically within the next preceding six months prior to April 28, 1966, no action was taken. The Clerk's 30-day notice of impending dismissal under Rule 13, Local Civil Rules, was issued in March 1966, and when, by April 28, 1966, there still had been no further action, the complaint was dismissed.

However, upon delving into the file, we see that action was taken by appellant. Subsequent to the July 1965 date referred to by appellee Monarch...

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