Rinieri v. News Syndicate Co.

• Decision Date: 15 November 1967
• Docket Number: 31578.,No. 98,Dockets 31547,98
• Citation: 385 F.2d 818
• Parties: Antoine B. RINIERI, Appellee, v. NEWS SYNDICATE CO., Inc., Appellant. NEWS SYNDICATE CO., Inc., Petitioner, v. Antoine B. RINIERI, Respondent, and Honorable Sidney Sugarman, Chief Judge, United States District Court for the Southern District of New York, Nominal Respondent.
• Court: U.S. Court of Appeals — Second Circuit

385 F.2d 818 (1967)

Antoine B. RINIERI, Appellee, v. NEWS SYNDICATE CO., Inc., Appellant.

NEWS SYNDICATE CO., Inc., Petitioner, v. Antoine B. RINIERI, Respondent, and Honorable Sidney Sugarman, Chief Judge, United States District Court for the Southern District of New York, Nominal Respondent.

No. 98, Dockets 31547, 31578.

United States Court of Appeals Second Circuit.

Argued October 24, 1967.

Decided November 15, 1967.

C. Joseph Hallinan, Jr., New York City (Joy & Hallinan, New York City, of counsel), for appellee.

Richard J. Barnes, New York City (Townley, Updike, Carter & Rodgers, James W. Rodgers, Anson M. Keller, New York City, of counsel), for appellant.

Before FRIENDLY, KAUFMAN and ANDERSON, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The question we are called upon to decide is whether Antoine B. Rinieri should have been permitted to have his libel action against the News Syndicate Co., Inc. News reinstated almost two and a half years after it was ordered dismissed for lack of prosecution.¹ Judge Sugarman after first refusing to set aside the order of dismissal, on reargument granted Rinieri's application and ordered the cause restored to the District Court's calendar. We reverse.

A summary recital of essential dates in the chronicle of this case is in order. The allegedly defamatory article on which the suit is grounded appeared in the New York Daily News on June 20, 1962.² Rinieri's complaint was filed on June 7, 1963 — two weeks before the one-year statute of limitations expired.³ On June 24, 1963, the News served its notice to take Rinieri's deposition but, upon stipulation, the examination was postponed twice and the News' time to answer extended. Rinieri then moved for an order pursuant to Rule 30(b) of the Federal Rules of Civil Procedure directing that his deposition be taken in France; this motion was denied on November 1, 1963. In due time, on June 12, 1964, the case appeared on the District Court's civil review calendar. This calendar procedure is a device utilized by the district judges to spur counsel to move forward to trial with their cases. Judge McGohey directed that the action would be dismissed if a note of issue (placing the case on the trial calendar) was not filed within 90 days. The allotted time elapsed without compliance. Accordingly, on September 24, 1964, Judge McGohey dismissed the action, without prejudice, for lack of prosecution.

Approximately two and a half years later, on February 9, 1967, Rinieri served a notice of motion "for an order, restoring this case to the docket." As we have indicated, Judge Sugarman first denied relief on May 2, 1967, but reversed himself on May 29, 1967, and directed that the order of dismissal be set aside and the case restored to the calendar. His brief order recites no authority for his action. The defendant filed a timely notice of appeal and, in an abundance of caution, petitioned for a writ of mandamus.

I.

In order to deal with Rinieri's argument that the relief granted by Judge Sugarman was justified, it is necessary that we set forth the background in some detail. For purposes of this decision it is sufficient that we assume the facts as alleged by appellee.⁴ Rinieri claimed that he was carrying approximately $247,500 in cash when he arrived in New York by airplane from France on June 12, 1962. The money, which had consecutive serial numbers, was, he insisted, the savings and profits he had accumulated over a period of years from buying and selling art. The purpose of his visit to the United States, he said, was to attempt to purchase a Van Gogh from an undisclosed principal. The alleged seller, however, failed to keep a prearranged appointment in New York City so Rinieri left the city the day after his arrival. He then visited Charlotte and Asheville, North Carolina, and, on June 18, 1962, flew to Chicago and boarded a plane bound for Zurich, Switzerland, via Montreal, Canada. Rinieri never reached Montreal; for reasons that are not clear, the plane landed instead in New York City. Federal Customs agents were present to meet the plane. They seized the $247,500 and served Rinieri with a subpoena to appear before a grand jury the following day.

The government, as expected, had a version for the existence of this enormous amount of cash which differed from Rinieri's. Its account was that he "was picking up money from underground dope contacts in all the cities in which he stopped." In any event, Rinieri refused to disclose to the grand jury the name of the individual from whom he was to make the purchase, or to identify the individual in Switzerland with whom this substantial nest egg had been stored. As a result, he was convicted of civil contempt and his six-month sentence was upheld by this court. United States v. Rinieri, 308 F.2d 24, cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962). On December 27, 1962, following his prison term, he was deported.⁵

But, Rinieri's difficulties with the government were not over. On June 21, 1962, the Internal Revenue Service levied a jeopardy assessment in the amount of $247,820 against Rinieri and his assets.⁶ The Service maintained that the money had been earned in this country. Following his deportation, however, Rinieri commenced a successful action to recover the money seized, Rinieri v. Scanlon, 254 F.Supp. 469 (S.D.N.Y. 1966), and the money was returned to him on November 16, 1966.⁷

Before Judge Sugarman, Rinieri's basic contention for setting aside the order of dismissal was that the government's seizure of his assets rendered him financially unable to prosecute his suit. In this court, he has embellished this argument and has claimed that the notoriety which surrounded him because of the newspaper articles portraying him as an alleged international trafficker in narcotics alienated his friends — presumably helpful witnesses — and made it impossible for him to proceed effectively with his action. We will examine these contentions after determining whether we have jurisdiction to hear this appeal.

II.

Rinieri first moved to dismiss the appeal claiming that Judge Sugarman's order was not appealable. He argued that the order of September 24, 1964, dismissing the complaint, was not a "final" order since it was "without prejudice." He reasoned from this that the action could have been reinstated at any time and without recourse to Rule 60(b) which narrowly limits the relief available from a final order.⁸ At oral argument, however, appellee withdrew this ground for dismissal and we believe with good reason. Although a dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to res judicata principles, the order of dismissal, nevertheless, is a final order from which an appeal lies. See Zadig v. Aetna Ins. Co., 42 F.2d 142 (2d Cir. 1930). Cf. Blair v. Cleveland Twist Drill Co., 197 F.2d 842 (7th Cir. 1942); 6 Moore, Federal Practice ¶ 54.121.

It follows, therefore, that relief setting aside the order of dismissal and restoring the case to the docket could only have been granted pursuant to the authority of Rule 60(b). And, the law is settled that if the District Court assumes jurisdiction and power to act under that rule where neither exists, an appeal will lie from its order vacating the original order. See Cavalliotis v. Saloman, 357 F.2d 157 (2d Cir. 1966); Radack v. Norwegian America Line Agency, Inc., 318 F.2d 538 (2d Cir. 1963) (citing cases). See also Phillips v. Negley, 117 U.S. 665, 6 S.Ct. 901, 29 L.Ed. 1013 (1886).⁹ We recognize, of course, that trial judges must be allowed to exercise their sound discretion in granting or denying relief from a final judgment. Cf. Cavalliotis v. Saloman, supra. But, in vacating the order of dismissal Judge Sugarman deprived the News of the benefit of Judge McGohey's order. And, if he acted without any basis in law, disregarding the limitations placed upon the power to vacate provided in the provisions of Rule 60(b), he lacked jurisdiction to act and this order is appealable. See Radack v. Norwegian America Line Agency, Inc., supra, 318 F.2d at 543, n. 5. Cf. Phillips v. Negley, supra.¹⁰ Thus, the "question of our jurisdiction to act on appeal is necessarily included in the question of the validity of the proceeding below * * *." 117 U.S. at 672, 6 S.Ct. at 903. We therefore return to a consideration of the validity of the proceeding below.

III.

As noted, by the time Rinieri moved to reinstate his action, the order which he sought to vacate was more than two years old. The language of Rule 60(b) makes it immediately apparent that Judge Sugarman could not have acted on the ground that the order of September 24, 1964 was the result of "mistake, inadvertence, surprise or excusable neglect", Rule 60(b) (1), for that provision carries a one-year limitation period. Appellee, however, in an attempt to escape the time bar applicable to Rule 60(b) (1) now seeks to bring himself within the dragnet provision of 60(b) (6) — "any other reason justifying relief" — no specific time requirements being provided under this subdivision for an application to vacate.

But Rule 60(b) (6) is not a carte blanche to cast adrift from fixed moorings and time limitations guided only by the necessarily variant consciences of different judges. It is not to be used as a substitute for appeal when appeal would have been proper, 7 Moore, Federal Practice ¶ 60.27(i) (2d ed. 1966), and may be relied upon only in "exceptional circumstances." Ackermann v. United States, 340 U.S. 193, 202, 71 S.Ct. 209, 94 L.Ed. 1371 (1950); Klapprott v. United States, 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed.2d 266 (1949). Thus, it is settled that 60(b) (1) and 60(b) (6) are not pari passu and are mutually exclusive, and that the latter section cannot be used to break out from the rigid time restriction of the former. Wright, Federal Courts § 98 (1963); 7 Moore, Federal Practice ¶ 60.271 (2d ed. 1966). While it...