Crosby v. Bradstreet Company

• Citation: 312 F.2d 483
• Decision Date: 17 January 1963
• Docket Number: Docket 27606.,No. 60,60
• Parties: S. Stewart CROSBY, Plaintiff-Appellant, Appellant, v. The BRADSTREET COMPANY, Defendant-Appellee, and L. Lloyd Crosby, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

312 F.2d 483 (1963)

S. Stewart CROSBY, Plaintiff-Appellant, Appellant, v. The BRADSTREET COMPANY, Defendant-Appellee, and L. Lloyd Crosby, Appellee.

No. 60, Docket 27606.

United States Court of Appeals Second Circuit.

Argued October 23, 1962.

Decided January 17, 1963.

Copal Mintz, New York City, for plaintiff-appellant.

Chester Bordeau, New York City (White & Case, New York City, on the brief), for defendant-appellee.

Jay Leo Rothschild, New York City, for appellee.

Before LUMBARD, Chief Judge, and MOORE and HAYS, Circuit Judges.

LUMBARD, Chief Judge.

Stanford Crosby¹ appeals from the denial by the United States District Court for the Southern District of New York, of a motion under Rule 60(b) of the Federal Rules of Civil Procedure to relieve him from an order entered on stipulation on July 8, 1933. The district judge was of the opinion that the equities required denial of the application as he was convinced "that the harm which will befall L. Lloyd Crosby if the relief sought is granted by far outweighs the benefits that may accrue therefrom to the plaintiff Stanford Crosby." We reverse.

Stanford Crosby and his brother, L. Lloyd Crosby, were indicted by a federal grand jury in 1928 for mail fraud (now 18 U.S.C. § 1341). At trial in 1930, Stanford Crosby was acquitted, but the jury disagreed as to Lloyd Crosby. Lloyd Crosby then pleaded guilty and was given a suspended sentence.

In 1932 The Bradstreet Company, now Dun & Bradstreet, published a credit report which stated that Stanford and Lloyd Crosby had been found guilty of fraud. At that time the two brothers were in business together. In the same year, Stanford Crosby commenced a libel action in the New York Supreme Court against The Bradstreet Company based on the published credit report, which action was removed to the United States District Court. The specific nature of the allegedly libelous statement and the relief sought is unknown as the complaint is unavailable. We do know, however, that Stanford Crosby was the sole plaintiff and Lloyd Crosby and others with whom the brothers were in business, were not parties to the action. On June 28, 1933 Stanford Crosby and Dun & Bradstreet entered into a stipulation wherein the action was settled. The defendant agreed to pay $300 and to "refrain from issuing or publishing any report, comment or statement either in writing or otherwise concerning Stanford * * * Crosby, the plaintiff herein, L. Lloyd Crosby and others * * * or concerning the business activities of any of the foregoing persons * * *; whether present, past or future." On July 8, 1933 the district court signed an order on that stipulation which was filed on July 10.

Since 1933 plaintiff and his brother have severed business relations and they are now in competing businesses in the Pittsburgh area. Stanford Crosby desires a termination of the 1933 order, under Rule 60(b) (5) and (6) of the Federal Rules of Civil Procedure,² claiming that the absence of a listing by the well-known Dun & Bradstreet credit information company makes it difficult for him to get credit. Lloyd Crosby, on the other hand, alleges that Stanford Crosby's purpose is to destroy his business. The defendant, Dun & Bradstreet, opposes termination of the order unless its right to make reference to Lloyd Crosby in its statement about Stanford Crosby is protected.

In memorandum orders dated April 10, 1962, the district court denied plaintiff's motion. On May 11, 1962, 31 days later, in an ex parte proceeding, plaintiff received permission in the district court to file a notice of appeal out of time.³ At the argument before this court, appellee Lloyd Crosby challenged our jurisdiction over the appeal. In an order filed November 14, 1962, we held that, under Rule 6 of the Federal Rules of Civil Procedure, it was "beyond the power of the district court to extend the time of the appellant to file its notice of appeal by ex parte order dated May 11, 1962, if the 30-day period had already expired." However, no file date was stamped on the order and we thought it quite possible that the orders had in fact not been entered by the clerk of the district court until April 11. Accordingly, under Rule 75(h), Federal Rules of Civil Procedure, we directed "that the district court determine the correct date of the entry of the orders dated April 10, and that a supplemental record including these findings be certified and transmitted to this court." The district court has certified that the orders were deposited for filing and entry on April 11, 1962, and accordingly it is clear that the notice of appeal was filed within thirty days. We proceed to the merits.

The 1933 order was extremely broad in its terms. It restrained ...