Foman v. Davis, No. 41

CourtUnited States Supreme Court
Writing for the CourtGOLDBERG
Citation9 L.Ed.2d 222,371 U.S. 178,83 S.Ct. 227
Decision Date03 December 1962
Docket NumberNo. 41
PartiesLenore FOMAN, Petitioner, v. Elvira A. DAVIS

371 U.S. 178
83 S.Ct. 227
9 L.Ed.2d 222
Lenore FOMAN, Petitioner,

v.

Elvira A. DAVIS.

No. 41.
Argued Nov. 14, 1962.
Decided Dec. 3, 1962.

Page 179

Milton Bordwin, Boston, Mass., for petitioner.

Roland E. Shaine, Boston, Mass., for respondent.

Mr. Justice GOLDBERG delivered the opinion of the Court.

Petitioner filed a complaint in the District Court alleging that, in exchange for petitioner's promise to care for and support her mother, petitioner's father had agreed not to make a will, thereby assuring petitioner of an intestate share of the father's estate; it was further alleged that petitioner had fully performed her obligations under the oral agreement, but that contrary thereto the father had devised his property to respondent, his second wife and executrix. Petitioner sought recovery of what would have been her intestate share of the father's estate. Respondent moved to dismiss the complaint on the ground that the oral agreement was unenforceable under the applicable state statute of frauds. Accepting respondent's contention, the District Court entered judgment on December 19, 1960, dismissing petitioner's complaint for failure to state a claim upon which relief might be granted. On December 20, 1960, petitioner filed motions to vacate the judgment and to amend the complaint to assert a right of recovery in quantum meruit for performance of the obligations which were the consideration for the assertedly unenforceable oral contract. On January 17, 1961, petitioner filed a notice of appeal from the judgment of December 19, 1960. On January 23, 1961, the District Court denied petitioner's motions to vacate the judgment and to amend the complaint. On January 26, 1961, petitioner filed a notice of appeal from denial of the motions.

On appeal, the parties briefed and argued the merits of dismissal of the complaint and denial of petitioner's

Page 180

motions by the District Court. Notwithstanding, the Court of Appeals of its own accord dismissed the appeal insofar as taken from the District Court judgment of December 19, 1960, and affirmed the orders of the District Court entered January 23, 1961. 1 Cir., 292 F.2d 85. This Court granted certiorari. 368 U.S. 951, 82 S.Ct. 396, 7 L.Ed.2d 385.

The Court of Appeals reasoned that in the absence of a specific designation of the provision of the Federal Rules of Civil Procedure, 28 U.S.C.A. under which the December 20, 1960, motion to vacate was filed, the motion would be treated as filed pursuan to Rule 59(e), rather than under Rule 60(b);1 since, under Rule 73 (a),2 a motion under Rule 59 suspends the running of time within which an appeal may be perfected, the first notice of appeal was treated as premature in view of the then pending motion to vacate and of no effect. The Court of Appeals held the second notice of appeal, filed January 26, 1961, ineffective to review the December 19, 1960, judgment dismissing the complaint because the notice failed to specify that the appeal was being taken from that judgment as well

Page 181

from the orders denying the motions. Considering the second notice...

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22072 practice notes
  • Am. W. Bank Members, L.C. v. State, No. 20120456.
    • United States
    • Supreme Court of Utah
    • October 24, 2014
    ...for cases where the plaintiff has had multiple opportunities to amend and has continually failed to state a claim. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (holding that leave to amend should generally be freely given, unless the plaintiff “repeated[ly] fail[s] ......
  • Black Radio Network, Inc. v. Nynex Corp., No. 96 CIV. 4138(DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 14, 1999
    ..."to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); MacDraw, Inc. v. CIT Group Equip. Fin. Co., 157 F.3d 956, 962 (2d The decision to grant leave to a......
  • Elat v. Ngoubene, Civil Case No. PWG–11–2931.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 21, 2014
    ...229 F.R.D. 501, 504 (D.Md.2005) (same). Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that ......
  • Tucker v. Specialized Loan Servicing, LLC, Case No. PWG–14–813.
    • United States
    • U.S. District Court — District of Maryland
    • February 3, 2015
    ...FOR PENDING MOTIONSA. Motion to Amend Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). When, as here, a plaintiff moves to amend for a second time but before the Court issues a scheduling o......
  • Request a trial to view additional results
22092 cases
  • Am. W. Bank Members, L.C. v. State, No. 20120456.
    • United States
    • Supreme Court of Utah
    • October 24, 2014
    ...for cases where the plaintiff has had multiple opportunities to amend and has continually failed to state a claim. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (holding that leave to amend should generally be freely given, unless the plaintiff “repeated[ly] fail[s] ......
  • Black Radio Network, Inc. v. Nynex Corp., No. 96 CIV. 4138(DC).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 14, 1999
    ..."to facilitate a proper decision on the merits." Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); MacDraw, Inc. v. CIT Group Equip. Fin. Co., 157 F.3d 956, 962 (2d The decision to grant leave to a......
  • Elat v. Ngoubene, Civil Case No. PWG–11–2931.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • January 21, 2014
    ...229 F.R.D. 501, 504 (D.Md.2005) (same). Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). Rule 15(a)(2) typically provides the standard for whether to grant a motion for leave to amend that ......
  • Tucker v. Specialized Loan Servicing, LLC, Case No. PWG–14–813.
    • United States
    • U.S. District Court — District of Maryland
    • February 3, 2015
    ...FOR PENDING MOTIONSA. Motion to Amend Whether to grant a motion for leave to amend is within this Court's discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). When, as here, a plaintiff moves to amend for a second time but before the Court issues a scheduling o......
  • Request a trial to view additional results
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