845 F.2d 1182 (3rd Cir. 1988), 87-1552, Smith v. Oelenschlager

Docket Nº:87-1552.
Citation:845 F.2d 1182
Party Name:John SMITH, Appellant v. James OELENSCHLAGER and James F. Green.
Case Date:March 08, 1988
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1182

845 F.2d 1182 (3rd Cir. 1988)

John SMITH, Appellant


James OELENSCHLAGER and James F. Green.

No. 87-1552.

Submitted Under Third Circuit

United States Court of Appeals, Third Circuit

March 8, 1988

Rule 12(6) Feb. 3, 1988.

Rehearing Denied May 12, 1988.

Richard A. Weisbord, Weisbord & Weisbord, P.C., Philadelphia, Pa., for appellant.

Dean F. Murtagh, John P. Shusted, German, Gallagher & Murtagh, Philadelphia, Pa., for appellees.

Before SLOVITER, STAPLETON and MANSMANN, Circuit Judges.


SLOVITER, Circuit Judge.

The appellant asks us to reverse the order dismissing his motion for a new trial, arguing that the district court abused its discretion in following the literal language of a local rule. Local Rule 20(e) of the District Court for the Eastern District of Pennsylvania, provides:

Within ten (10) days after filing any post-trial motion, the movant shall either (a) order a transcript of the trial by a writing delivered to the Court Reporter Coordinator, or (b) file a verified motion showing good cause to be excused from this requirement. Unless a transcript is thus ordered, or the movant excused from obtaining a transcript, the post-trial motion must be dismissed for lack of prosecution.

E.D.Pa. R. 20(e).

Appellant John Smith was the plaintiff in a personal injury diversity action tried before a jury and United States Magistrate Richard A. Powers, III, by agreement of counsel. 1 The trial was electronically transcribed, and there was a technician operating the tape recorder but no stenographic court reporter present during the proceedings. After the jury awarded plaintiff four thousand dollars in damages, plaintiff filed a motion for a new trial alleging various trial errors and the inadequacy of the verdict.

Local Rule 20(e) mandates that an order for a transcript be delivered to the Court Reporter Coordinator within ten days of the post-trial motion. Smith's attorney failed to follow this procedure and instead

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hand-delivered a letter to Magistrate Powers, with a copy to Judge Charles R. Weiner, the district court judge assigned to this matter. The letter recited that a new trial had been moved, and continued:

Pursuant to Local Rule, we hereby wish to order a transcript of the proceedings. I do not know the identity of the official Court Reporter who presided at this trial. I am hereby requesting that this request be forwarded to the official Court Reporter....

Since I do not know if the court reporter was arranged through Judge Weiner, by whom this matter was referred to Your Honor, I am sending a copy of this letter to Judge Weiner's chambers and am also requesting that his chambers submit this request to the appropriate court reporter.

Appellant's Appendix at 28.

Neither the judge nor the magistrate forwarded the transcript request to the Court Reporter Coordinator or informed plaintiff's attorney that they would not do so. Subsequently, Judge Weiner, although recognizing that "dismissal of plaintiffs motion may be a harsh sanction," stated that "dismissal is mandated by the rule [20(e) ]" and dismissed the motion for a new trial for lack of prosecution. Appellant's App. at 23. The court stated it would reconsider its order if "plaintiff can demonstrate ... that he ordered the notes and paid the requested charges." Id.

Plaintiff moved for reconsideration but was unable to show that the transcript had actually been ordered. The motion recited the above facts and stated that plaintiff received no request from Judge Weiner's chambers or from the official court reporters to place a deposit for payment of the transcript. The district court adhered to its prior decision, stating:

Plaintiff cannot comply with Local Rule 20(e) by delivering a letter to the court requesting that the transcript be ordered and thereafter rely on the court to forward the request to the appropriate reporter. It is not the function of the courts to supervise requests for trial transcripts. Rule 20(e) specifically states the proper procedure for ordering a trial transcript.... As we noted in our Memorandum and Order of August 12, 1987, Rule 20(e), as the other Rules of Court, was promulgated to promote the efficient administration of the courts. Failure of an attorney to abide by this Rule, such as in the case sub judice, ... only causes an increase in time and effort on the part of the court.

Appellant's App. at 32-33. 2

In arguing that the district court abused its discretion, plaintiff contends that because in other situations the Federal Rules or statutes permit rerouting of misdirected papers, see, e.g., Fed.R.App.P. 4(a)(1); 28 U.S.C. Sec. 1406 (1982), the sanction of dismissal here is "totally inappropriate." Appellant's Brief at 10. The difficulty with appellant's position is that Local Rule 20(e) does not provide for rerouting, as do the rules and statutes on which he relies, and instead provides for precisely the sanction imposed by the district court.

The district courts are authorized by 28 U.S.C. Sec. 2071 (1982) to prescribe rules for the conduct of court business. "Such rules...

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