AC Samford, Inc. v. United States

• Decision Date: 13 December 1963
• Docket Number: Civ. A. No. 772.
• Citation: 226 F. Supp. 72
• Parties: A. C. SAMFORD, INC., Plaintiff, v. The UNITED STATES of America and Blythe, Thompson & Street Co., Defendants.
• Court: U.S. District Court — Middle District of Georgia

226 F. Supp. 72

A. C. SAMFORD, INC., Plaintiff, v. The UNITED STATES of America and Blythe, Thompson & Street Co., Defendants.

Civ. A. No. 772.

United States District Court M. D. Georgia, Albany Division.

December 13, 1963.

Smith, Swift, Currie, McGhee & Hancock, Atlanta, Ga., for plaintiff.

Floyd M. Buford, U. S. Atty., for defendant, United States.

McCleneghan, Miller & Creasy, Charlotte, N. C., and Farkas, Landau & Davis, Albany, Ga., for defendant, Blythe, Thompson & Street Co.

ELLIOTT, District Judge.

The Plaintiff in this case, A. C. Samford, Inc., is a Georgia corporation with its principal place of business in the Albany Division, Middle District of Georgia, qualified to do business in South Carolina. The corporate defendant, Blythe, Thompson & Street Co., is a joint venture company composed of Blythe Brothers Company, Inc., F. N. Thompson, Inc., and McDevitt & Street Company. Each of these three corporations who constitute the joint venture company are North Carolina corporations having their principal places of business in Charlotte, North Carolina. Each of them have qualified to do business in the State of South Carolina and in the State of Georgia and have agents authorized to receive process in those states.

This is an action for damages based on a claim of tort under the laws of the State of South Carolina, the United States of America being joined under the provisions of the Tort Claims Act. The complaint alleges generally that the Plaintiff entered into a contract with the United States of America to construct a 200-unit Capehart Housing Project at the United States Naval Ammunition Depot, Charleston, South Carolina, the United States acting through the Bureau of Yards and Docks, Department of the Navy. The corporate Defendants also had a contract with the Government to construct certain other facilities nearby and the Plaintiff alleges that the Government was negligent in failing to provide an access road to the project being constructed by the Plaintiff under the terms of the construction contract which the Plaintiff had with the Government and also under the terms of the contract which the corporate Defendants had with the Government, the theory of the complaint being that the corporate Defendants and the Government were negligent in the circumstances, causing damage to the Plaintiff in the amount of $300,000.00. All of the operative facts having a bearing on the controversy took place at or near the sites of construction in or near Charleston, South Carolina.

The complaint was filed in the Albany Division of this Court on June 28, 1963 and was served on F. N. Thompson, Inc., on July 3, 1963, on Blythe Brothers Company, Inc., on July 3, 1963 and on McDevitt & Street Company on July 9, 1963. The summons attached to each copy of the complaint which was served upon each of the corporate Defendants provided that answers to the complaint were due "within sixty days after service of this summons". The copies of the complaint were promptly forwarded by the agents of the corporate Defendants upon whom service had been perfected to Mr. F. A. McCleneghan, Charlotte, North Carolina, the attorney for each of the companies involved in the joint venture, he observing upon receipt of the papers that answer was required within sixty days after service. The corporate Defendants relied upon Mr. McCleneghan to file such answers and take such other steps as might be deemed appropriate in their defense and Mr. McCleneghan relied on the provisions contained in the summons. Realizing that the United States of America was also a party Defendant, Mr. McCleneghan communicated with the United States Attorney in this District with regard to conferring with him in the preparation of the answers and was advised that there would be some delay in the filing of the Government's answer because of the necessity of obtaining a report on the facts from the Department of Justice. It was understood between them that they would hold a conference after the report had been received, looking toward the preparation of answers. In the meantime Mr. McCleneghan communicated with persons in the legal section at the Navy Yard in Charleston, South Carolina, to determine that the necessary report was being prepared for the Department of Justice, this communication being had on July 23, and then on July 24 Mr. McCleneghan associated local counsel in Albany, Georgia to collaborate in the handling of the defense of the matter. The United States Attorney who was handling the matter for the Government was required to be absent from his office in connection with some temporary military duty for a period of about two weeks, and on the day of his return to his office Mr. McCleneghan was again in touch with him concerning the filing of answers, this communication having occurred on August 26, 1963. At that time the United States Attorney advised Mr. McCleneghan that he had just received the report from the Department of Justice and that he intended to ask counsel for the Plaintiff to consent to an extension of time in which the Government might file its answer. Upon being advised of this Mr. McCleneghan suggested to the United States Attorney that he also obtain an extension for the corporate Defendants as well, so that there would be time to have a conference in connection with the filing of the answers before either Defendant filed. When the United States Attorney communicated with Plaintiff's counsel he learned that the Plaintiff's counsel intended to take the position that the corporate Defendants were in default and he relayed this information to Mr. McCleneghan, who thereupon got in touch with counsel for the Plaintiff by telephone, calling his attention to the fact that the summons attached to the complaint called for answers within sixty days. On the next day, August 27, 1963 Plaintiff's counsel filed a request to enter default. Without waiting for further conference with the United States Attorney, counsel for the corporate Defendants then proceeded without further delay to file their answer, this being filed on August 29, 1963, the United States in the meantime having been granted an extension of time within which to file its answer.

When the proceedings in this Court had reached that stage, Blythe, Thompson & Street Co. filed two motions, the first being a motion that the Plaintiff's request for entry of default be denied and that Blythe, Thompson & Street Co. be allowed to appear and answer, and the second being a motion for a change of venue from the Middle District of Georgia to the Eastern District of South Carolina on certain grounds stated in the motion. The other Defendant, the United States of America, has not filed a formal motion for change of venue to the Eastern District of South Carolina, but the United States Attorney who appears on behalf of the Government has by letter directed to this Court which constitutes part of the file in this case stated that, "The Government is in full accord with the motion now pending before the Court for a change of the venue of this case to the United States District Court for the Eastern District of South Carolina, Charleston Division." Counsel for Plaintiff and counsel for the corporate Defendants have filed affidavits and briefs in support of their respective positions with regard to each of the two pending motions, and the Court being fully advised in the circumstances, makes the following rulings with respect thereto.

THE MOTION TO DISALLOW THE REQUEST FOR ENTRY OF DEFAULT AND FOR LEAVE TO APPEAR AND ANSWER

The pertinent Rules of Civil Procedure which apply in a consideration of this motion are:

Rule 4(b), which requires that the summons shall state "* * * the time within which these rules require the defendant to appear and defend, and shall notify him that in case of his failure to do so judgment by default will be rendered against him for the relief demanded in the complaint."

Rule 12(a), which provides that "A defendant shall serve his answer within 20 days after the service of the summons and complaint upon him * * *."

Rule 55(c), which provides that "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60 (b)."

Rule 60(b), which provides that "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; * * * or (6) any other reason justifying relief from the operation of the judgment."

The first question which suggests itself in these circumstances is whether the summons which was issued and served upon these corporate Defendants was valid. It was not issued in the manner required by the provisions of Rule 4(b) because it recites a date for filing an answer other than that prescribed by Rule 12(a). There have been cases in which the courts have held that when a summons is made returnable at a time more distant from the date of service than the time prescribed by the statute, the summons confers no jurisdiction. In other instances the courts have held that this is merely an irregular summons and is subject to amendment. There is authority that a writ returnable at a time not authorized by law is void, and therefore, not amendable, but this question seems to have been rendered academic at this point in this case because the corporate Defendants have actually responded to the summons and have filed their answer, and this would seem to have cured any defect which might be claimed in the process.

The next question which should be considered is whether the Defendants were actually in default when they filed their answer on August 29, 1963. The process directed that an answer be filed within sixty days of date of service. The answer was filed before the expiration of that time. True, the...