Bernays v. Frederic Leyland & Co.

• Decision Date: 27 May 1915
• Docket Number: 3.
• Citation: Bernays v. Frederic Leyland & Co., 228 F. 913 (D. Mass. 1915)
• Parties: BERNAYS v. FREDERIC LEYLAND & CO., Limited.
• Court: U.S. District Court — District of Massachusetts

228 F. 913

BERNAYS v. FREDERIC LEYLAND & CO., Limited.

No. 3.

United States District Court, D. Massachusetts.

May 27, 1915

Tyler Corneau & Eames, of Boston, Mass., for plaintiff.

Frederic Cunningham, of Boston, Mass., for defendant.

MORTON District Judge.

This case was within the provisions of the docket-clearing order entered by this court on March 16, 1915. The plaintiff moves that it be excepted from the operation thereof and be retained on the docket. The defendant contends that it ought to be dismissed under said order, and has also filed a separate motion to dismiss for lack of prosecution and because no good cause has been shown to exempt it from the order referred to. The matter has been heard on statements by counsel and on affidavits filed by the parties. The following facts either are not in dispute or are established.

It is an action at law to recover damages for the alleged failure of the defendant, a common carrier by sea operating steamships between Boston and Liverpool, to receive and transport seasonably and promptly certain grain, in accordance with a contract alleged to have been entered into between it and the plaintiff on April 30, 1897. The case was originally brought in the Supreme Judicial Court of Massachusetts by a writ dated June 14, 1898. It was removed to the United States Circuit Court for this district in March, 1899, and has been pending ever since. The defendant's answer was filed in June, 1899. On February 12, 1900, an auditor was appointed by consent of parties. Since that date no action has been taken, except the present motion by the plaintiff to save it from dismissal, and that by the defendant to have it dismissed as above stated. There were no hearings before the auditor.

It thus appears that for over 15 years no action has been taken in this case, except that it has been continued from term to term by the clerk as a routine matter. During that time the leading counsel for the defendant has died, and so has the leading counsel for the plaintiff. There is no specific evidence that any of the defendant's witnesses have died, or that its ability to maintain its defense has been impaired; but it is contended, correctly I think, that that must necessarily be so, and that the knowledge of such witnesses, as upon investigation prove to be still available for the defendant upon the points in dispute, must have become less definite and complete because of the long delay. No reason is given for the failure to prosecute the case more diligently, except that it was overlooked by counsel. The plaintiff's own neglect in failing to follow up his case stands wholly unexplained.

The...