Clements v. Florida East Coast Railway Company, 72-2504 Summary Calendar.

• Decision Date: 26 January 1973
• Docket Number: No. 72-2504 Summary Calendar.,72-2504 Summary Calendar.
• Citation: 473 F.2d 668
• Parties: Joseph C. CLEMENTS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

473 F.2d 668 (1973)

Joseph C. CLEMENTS, Individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. FLORIDA EAST COAST RAILWAY COMPANY, Defendant-Appellee.

No. 72-2504 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

January 26, 1973.

James W. Matthews, Miami, Fla., for plaintiffs-appellants.

Samuel S. Forman, Kenneth L. Ryskamp, Miami, Fla., for defendant-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.

PER CURIAM:

Clements sued Florida East Coast for alleged employment discrimination. The defendant moved under Fed.R.Civ.P. 41 (d) to stay the proceedings pending payment of costs assessed in an identical previous suit dismissed for Clements' failure to comply with pretrial orders. The District Court granted the motion by this order:

This cause is before the Court on defendant\'s motion to stay proceedings pending payment of costs.

Having considered the record in the cause, it is

Ordered and adjudged that said motion is granted, and if within ninety days from the date hereof the costs heretofore taxed in Case No. 70-1770-Civ-TC have not been paid by plaintiff, this cause will be dismissed without further notice to the parties.

Done and ordered at Miami, Southern District of Florida, this 15th day of December, 1971.

Although dated December 15 the order was not filed with the clerk until December 17.

On a date which appears to have been March 15, 1972, but, in any event no later than March 16, counsel for plaintiff tendered to counsel for defendant a check for the costs of the previous suit in the amount of $643.39. By letter dated March 16, counsel for defendant returned the check, the letter stating that the check had not been tendered within the time specified by the court's order and stating also that the case had been dismissed on March 14. The latter statement was erroneous, the record revealing no such dismissal. On March 20 defense counsel filed a verified motion to dismiss the case for failure to comply with the court's order of December 15. The same day plaintiff's counsel filed an affidavit that the costs had been paid to defense counsel on March 15. By an order dated March 22 but filed with the clerk on March 27, the court dismissed the cause with prejudice on the ground plaintiff had failed to pay the costs as required by the order of December 15.

On this appeal plaintiff contends that the time for complying with the court's order was extended for three days by reason of Rule 6(e),¹ Fed.R.Civ.P. We agree with defendant that 6(e) has no application, because the action required of plaintiff was not within a prescribed period after service of the order upon him. See Sonnenblick-Goldman Corp. v. Nowalk, 420 F.2d 858 (3d Cir. 1970); Allen v. Schnuckle, 253 F.2d 195 (9th Cir. 1958).

This is not, however, the end of the inquiry. If the 90-day period ran from the date of the order, December 15, the last day for compliance was March 14. If it ran from the date the order was filed with the clerk, December 17, the last day was March 16.

At least by implication the effective date of an order is the date on which it is filed with the clerk. Rule 79 (a), Fed.R.Civ.P., requires the clerk to enter chronologically the dates of all papers, including orders, filed with him, showing for each order the substance thereof. The date of entry of the order also must be shown. In this case the court...