Darlington v. Studebaker-Packard Corporation

• Decision Date: 02 January 1959
• Docket Number: No. 12387.,12387.
• Citation: 261 F.2d 903
• Parties: Jay E. DARLINGTON, Plaintiff-Appellant, v. STUDEBAKER-PACKARD CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

261 F.2d 903 (1959)

Jay E. DARLINGTON, Plaintiff-Appellant, v. STUDEBAKER-PACKARD CORPORATION, Defendant-Appellee.

No. 12387.

United States Court of Appeals Seventh Circuit.

January 2, 1959.

Jay E. Darlington, Owen W. Crumpacker, Hammond, Ind., for appellant.

Wayne B. Easton, South Bend, Ind., for appellee.

Before MAJOR, SCHNACKENBERG and HASTINGS, Circuit Judges.

HASTINGS, Circuit Judge.

On December 31, 1952, Jay E. Darlington, plaintiff-appellant, as assignee of a certain design patent, filed an action against the predecessor of Studebaker-Packard Corporation,¹ defendant-appellee, in the United States District Court for the Northern District of Indiana, South Bend Division, charging infringement of such patent with a prayer for an accounting of profits and damages arising therefrom. Since the chronology of subsequent steps taken in the case below leading to this appeal is important, we list those steps in proper sequence:

(1) On February 20, 1953, defendant filed its answer of admission and denial.

(2) On September 1, 1953, a clerk's entry recited that the case was placed on the trial call calendar for the October 1953 term, "and no request for trial was received."

(3) On March 4, 1955, an order was entered substituting the defendant's successor, Studebaker-Packard Corporation, as defendant, followed by entries on June 9 and 23, 1955, substituting new defense counsel.

(4) On January 20, 1956, defendant filed 20 interrogatories and 101 requests for admissions, directed to plaintiff, who, on April 23, 1956, filed his answers and responses thereto.

(5) On May 2, 1957, the following notice was sent to the parties by the Clerk:

"You are hereby notified that this cause will be dismissed on Thursday, June 6, 1957, pursuant to Rule 11 of this court, unless prior thereto, for good cause shown, the court orders otherwise.

"/s/ Kenneth Lackey, Clerk."

(It is undisputed that Darlington's counsel received this notice and that no response was made thereto.)

(6) On June 6, 1957, the action was dismissed under the following order:

"Pursuant to notice given under Rule 11 of the Rules of this Court, cause dismissed for failure to prosecute at the costs of the plaintiff.

"/s/ W. Lynn Parkinson, Judge."

(7) On June 11, 1957, defendant filed its bill of costs and verification thereof.

(8) On June 21, 1957, plaintiff filed has verified "Motion to Vacate Dismissal."

(9) On March 14, 1958, oral argument on the motion to vacate the dismissal was heard by Judge Robert A. Grant (successor to Judge Parkinson on the district bench) and time was given to file briefs.

(10) On April 14, 1958, plaintiff filed his motion for Judge Grant to disqualify himself from ruling on the pending motion and from acting further in the case because of alleged prior employment of him by defendant in other matters.

(11) On April 23, 1958, defendant filed its brief in opposition to both of plaintiff's pending motions, admitting that its predecessor defendant had paid Judge Grant a retainer of $400 per month "to handle certain legal matters having no connection whatsoever with the present case continuously from July 1950 to the end of 1954."

(12) On May 8, 1958, Judge Grant overruled plaintiff's motion that he should disqualify himself under the following order:

"Plaintiff\'s Motion For the Judge to Disqualify Himself is hereby overruled, as the present occupant of this bench:

"(1) Has no interest in this present action;

"(2) has not been of counsel as to this action and has not been a material witness therein;

"(3) has not been and is not now, to his knowledge and in his opinion, so connected with any party in this matter, or any attorney therein, as to render it improper for the present occupant of this bench to preside in this matter."

(13) On May 9, 1958, an order was entered denying plaintiff's motion to vacate the order of dismissal.

Plaintiff now appeals from the orders of May 8 and 9, 1958, alleging error by the district court in the denial of each of his motions for disqualification and to vacate.

Although defendant has not filed a motion to dismiss this appeal, it challenges our jurisdiction to hear the appeal on the ground that it is not from any final decision of the district court pursuant to 28 U.S.C.A. § 1291. However, plaintiff's motion to vacate the order of dismissal was filed pursuant to Rule 60 (b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., on the ground of mistake, inadvertence, or excusable neglect and for other reasons claimed to justify relief from the dismissal. It is well established that such a motion is addressed to the sound legal discretion of the trial court and courts of appeal have frequently reviewed the exercise of such discretion, holding that the ruling on the motion will not be disturbed upon appeal except for an abuse of this discretion. Parker v. Checker Taxi Company, Inc., 7 Cir., 1956, 238 F.2d 241; Jones v. Jones, 7 Cir., 1954, 217 F.2d 239; Cole v. Fairview Development, Inc., 9 Cir., 1955, 226 F.2d 175; Stafford v. Russell, 9 Cir., 1955, 220 F.2d 853; Weilbacher v. J. H. Winchester & Co., Inc., 2 Cir., 1952, 197 F.2d 303; Cromelin v. Markwalter, 5 Cir., 1950, 181 F.2d 948. Cases cited by defendant are inapplicable for the reason that they do not involve Rule 60(b).

Rule 11 of the district court, under which this action was dismissed, appears in the September 1, 1955 Edition of the rules of that court as follows:

"Dismissal of Civil Cases Because of Lack of Prosecution. Civil cases in which no action has been taken for a period of one year may be dismissed for want of prosecution with judgment for costs after thirty days notice given by the clerk to the attorneys of record unless, for good cause shown, the court orders otherwise."

Plaintiff asserts that this local Rule 11 is invalid for the reason that it is "inconsistent" with Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S. C.A., and is therefore violative of Rule 83, F.R.C.P. Rule 41(b) provides, among other things, for the dismissal of an action on motion of the defendant for failure of the plaintiff to prosecute. Rule 83 provides for the adoption by the district court of rules governing its practice "not inconsistent" with the federal rules, and that in "all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules." Plaintiff's contention is without merit. Local Rule 11 merely provides for the dismissal of an action for want of prosecution by the court on its own motion, and we find no inconsistency therein with Rule 41(b). Furthermore, it is within the court's inherent power to so dismiss an action without authority of statute or rule. Hicks v. Bekins Moving & Storage Co., 9 Cir., 1940, 115 F.2d 406, 408, 409. We hold local Rule 11 to be valid.

Plaintiff's next contention is that if local Rule 11 is valid, it was nevertheless an abuse of discretion on the part of the district court to refuse to vacate the dismissal under the fact situation set out in his motion. We have examined this motion and it shows in substance that plaintiff has been a practicing attorney in Hammond, Indiana; that continuously since January 3, 1957, he has been under a continuous and heavy burden of trial work which could not be avoided or delayed, naming a case in each of three federal district courts in Chicago, Illinois, in Miami, Florida and in Puerto Rico; that due to this situation and the burden of other litigation he overlooked the requirement of taking action in this...