Coclin Tobacco Co. v. Brown & Williamson Tobacco Corp.
| Decision Date | 18 November 1965 |
| Docket Number | No. 177,Docket 30007.,177 |
| Citation | 353 F.2d 727 |
| Parties | COCLIN TOBACCO CO., Inc., Plaintiff-Appellant, v. BROWN & WILLIAMSON TOBACCO CORPORATION, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
P. Jay Flocken, Washington, D. C. (George D. Reycraft, Washington, D. C., and Cadwalader, Wickersham & Taft, New York City, on the brief), for plaintiff-appellant.
David Hartfield, Jr., New York City (Rayner M. Hamilton and White & Case, New York City, on the brief), for defendant-appellee.
Before MEDINA, WATERMAN and SMITH, Circuit Judges.
Having previously examined the briefs of counsel and the entire record, we heard oral argument and affirmed in open court.
The action was commenced on April 30, 1962. Thereafter the complaint was twice amended, a motion to quash the service of process on defendant British American Tobacco Company was granted after opposition and nothing was done by plaintiff or on plaintiff's behalf. The case was called on June 12, 1963 on a Special Review Calendar under General Rule 231 of the District Court for the Southern District of New York. No one appearing in opposition, the cause was dismissed for lack of prosecution, without prejudice and without costs. Although we are informed in a general way that plaintiff learned of the dismissal "in January, 1965," no steps were taken to vacate the order of dismissal until the service of the motion papers on or about July 1, 1965.
While the failure to prosecute is vaguely blamed on the firm of attorneys who commenced the action and we are told that one of them has been disbarred and another suspended from practice, it is to be noted that plaintiff was also represented by a firm of Connecticut lawyers, who received a third of the retainer paid before the action was commenced and had a further one-third contingent interest in any fee of the New York attorneys of record based on the recovery. It is revealing that the affidavit supporting the motion to vacate states:
"During the years of 1963 and 1964 I spoke with Attorney Rothstein several times by phone and he assured me that everything was going well on my case and that I should be ready for trial at a moments sic notice."
Thus, in effect, neither appellant nor its New York or Connecticut lawyers are shown to have done anything to further the prosecution of the case, despite the fact that one of the alleged causes of action alone asserts damages of $1,000,000, to be...
To continue reading
Request your trial
- United States v. Fay
-
Jensen v. Klecker
...If no notice of the amending order had been served or received, perhaps relief might be merited. See Coclin Tobacco Co. v. Brown & Williamson Tobacco Corp., 353 F.2d 727, 728 (2d Cir.1965). However, the record shows Jensen's attorney received a copy of the order. See Bennett v. Federal Depo......
-
Marsh v. Marsh
...regard, they have required the movant to show good reason for failure to take appropriate action sooner, Coclin Tobacco Co. v. Brown & Williamson Tobacco Corp., 2 Cir., 353 F.2d 727, and to show a good claim or defense. Gomes v. Williams, 10 Cir., 420 F.2d 1364. 11 Wright & Miller, Federal ......