Horner Equipment Intern., Inc. v. Seascape Pool Center, Inc., 88-3326

• Decision Date: 25 August 1989
• Docket Number: No. 88-3326,88-3326
• Parties: HORNER EQUIPMENT INTERNATIONAL, INC., Appellee, v. SEASCAPE POOL CENTER, INC. and Robert J. Heym, Appellants.
• Court: U.S. Court of Appeals — Third Circuit

Page 89

884 F.2d 89

14 Fed.R.Serv.3d 664

HORNER EQUIPMENT INTERNATIONAL, INC., Appellee, v. SEASCAPE POOL CENTER, INC. and Robert J. Heym, Appellants.

No. 88-3326.

United States Court of Appeals, Third Circuit.

Argued April 25, 1989.

Decided Aug. 25, 1989.

Scott A. Burton (argued), Law Offices of Wilfredo A. Geigel, Christiansted, St. Croix, U.S. Virgin Islands, for appellants.

Eddy Rivera (argued), Christiansted, St. Croix, U.S. Virgin Islands, for appellee.

Before HUTCHINSON, COWEN and GARTH, Circuit Judges.

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

I.

Seascape Pool Center, Inc. (Seascape) and Robert J. Heym (Heym) appeal two orders of the District Court of the Virgin Islands, Appellate Division (appellate division). One dismissed their appeal from an order of the Territorial Court of the Virgin Islands, ¹ and the other denied their motion for reconsideration. In both orders, the appellate division stated that its action was based on Seascape and Heym's failure to pay for the territorial court trial transcript, despite repeated requests to do so.

Seascape and Heym contend the appellate division abused the discretion Federal Rule of Appellate Procedure 3(a) gives it to dismiss appeals for lack of prosecution. We are unable to tell from this record whether the appellate division exercised its discretion under Rule 3(a) or instead relied on the arguably mandatory provisions of certain directives on transcripts that the district court's former chief judge and the court clerk issued to the bar.

We conclude that these directives cannot substitute mandatory dismissal for exercise of the discretion which Rule 3(a) requires before the sanction of dismissal is imposed for failure to comply with the requirements of Federal Rule of Appellate Procedure 10(b) relating to transcripts. Therefore, we will vacate the order dismissing Seascape and Heym's appeal and remand to the appellate division for further proceedings consistent with this opinion.

II.

We have appellate jurisdiction over the appellate division's orders dismissing Seascape and Heym's appeal and denying their motion for reconsideration under 28 U.S.C.A. Sec. 1291 (West Supp.1989). Seascape and Heym had filed a timely appeal to the appellate division from the territorial court's order denying their Federal Rule of Civil Procedure 60(b) motion for reconsideration of the judgment against them. ² We review the appellate division's order dismissing Seascape and Heym's appeal from the territorial court for failure to comply with the provisions of Rule 10(b) and its order denying their motion for reconsideration for abuse of discretion.

III.

Horner began a debt collection action against Seascape in May, 1986 in the territorial court. After a bench trial, that court entered judgment for Horner on April 1, 1987. Seascape and Heym filed motions for relief from the judgment, pursuant to Federal Rule of Civil Procedure 60(b)(2), on April 27, 1987. ³ The trial court denied these motions on September 28, 1987. Seascape and Heym then filed a notice of appeal with the appellate division on October 23, 1987. The notice stated that they appealed from both "the Judgment entered against them and this Court's Order of September 23, 1987." ⁴ Joint Appendix (J.A.) at 5.

By letter dated December 1, 1987, the clerk of the district court informed Seascape and Heym that their appeal had been docketed that day. The clerk reminded them of their obligation, pursuant to Federal Rule of Appellate Procedure 3(e), ⁵ to pay a docket fee by December 8 and, pursuant to Rule 10(b), ⁶ to order the portions of the trial transcript relevant to the issues on appeal. The letter stated: "If you have not already done so, you should order the trial transcript within five (5) days of the date of this letter." Id. at 7. Thereafter, Seascape and Heym requested a trial transcript by letter dated December 7, 1987. Id. at 8. ⁷

By its order dated February 24, 1988, the appellate division dismissed the appeal for failure to timely prosecute pursuant to Rule 3(a). ⁸ Id. at 9. Seascape and Heym filed a motion for reconsideration the following day, asserting that their December 7 transcript request satisfied Rule 10(b). Id. at 10-11.

On March 18, 1988, the appellate division vacated its February 24 order and instead dismissed the appeal because the "appellants filed an untimely notice of appeal." Id. at 18. The court noted that final judgment was entered on April 1, 1987 and that notice of appeal should have been filed within thirty days of that date because the time for filing an appeal from the judgment was not tolled by their Rule 60(b) motion for reconsideration. Id. at 19. Seascape and Heym then filed a motion for reconsideration on March 24, 1988, conceding that their October 23 notice of appeal was untimely with respect to the April 1 judgment, but pointing out that they also specifically appealed from the territorial court's September 28 denial of their Rule 60(b) motion for relief from that judgment. Id. at 21-22. ⁹

Thereafter, on April 18, 1988, the appellate division vacated its March 18 order dismissing the appeal as untimely, but reinstated its February 24 order dismissing it for failure to prosecute. It also denied Seascape's motion to reconsider the first order, stating:

Upon consideration of the two motions of appellants, Seascape Pool Center, Inc. and Robert J. Heym, for reconsideration of the Court's Order of February 24, 1988 which dismissed this matter for failure to timely prosecute, and for reconsideration of the Order of March 18, 1988 which vacated the earlier Order, but again dismissed this matter, for lack of jurisdiction.

IT IS ORDERED that the Order of this Court dated March 18, 1988 be, and the same is, hereby VACATED, thereby reinstating the Order of February 24, 1988; and it is

FURTHER ORDERED the motion of appellants for reconsideration of the Order of February 24, 1988 be, and the same is, hereby DENIED because of appellants' failure to pay for certain portions of the trial transcript inspite [sic] of repeated requests from the Court to do so.

Id. at 23 (emphasis added).

Seascape and Heym filed another motion for reconsideration on April 27, 1988. Id. at 25. Attached to that motion was an affidavit of counsel dated April 27, 1988, stating that he had ordered a transcript on December 7, 1987 but had never received it, "nor any request by the District Court, either in writing or telephonically, for payment." Id. at 27. The appellate division denied this motion on May 4, 1988. The order read:

It appearing to the Court that the clerk's office repeatedly requested that counsel for appellants pay for the trial transcript and that counsel ignored these requests,

IT IS ORDERED that the motion of appellants, Seascape Pool Center, Inc. and Robert J. Heym, for reconsideration of this Court's Order, dated April 18, 1988, be, and the same is, hereby DENIED.

Id. at 29. ¹⁰ Seascape and Heym then appealed the appellate division's April 18 and May 4 orders to this Court on May 18, 1988. Id. at 1.

IV.

The record in this case is insufficient to support an order imposing the sanction of dismissal for failure to comply with the provisions of Rule 10(b) concerning an appellant's responsibilities with respect to trial transcripts. Under Rule 10(b), it is, of course, plain that Seascape and Heym had a duty to make satisfactory arrangements to pay the reporter when they ordered the transcript on December 7, 1987 and that the appellate division has discretion to impose sanctions if they did not do so. As Professor Moore states:

Under Rule 10(b), the Appellant must order the transcript from the reporter, if one is to be ordered. The order must be in writing and at the time of ordering he must make satisfactory arrangements with the reporter for paying the cost of the transcript. If he does this within 10 days after the filing of the Notice of Appeal he has done his duty with respect to the preparation of the transcript.

9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 211.07 (2d ed. 1989) [hereinafter Moore's Federal Practice ]. However, on the present record we cannot tell what arrangements they made, if any. ¹¹

Dismissal of an appeal for failure to comply with procedural rules is not favored, although Rule 3(a) does authorize it in the exercise of a sound discretion. That discretion should be sparingly used unless the party who suffers it has had an opportunity to cure the default and failed to do so. Moreover, before dismissing an appeal, we believe that a court should consider and weigh such factors as whether the defaulting party's action is willful or merely inadvertent, whether a lesser sanction can bring about compliance and the degree of prejudice the opposing party has suffered because of the default. Accord Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984) (discussing factors to be considered before district court can dismiss action under Federal Rule of Civil Procedure 37(b) for failing to comply with the rules on discovery).

This record does not show that the district court considered any of these factors, except the alleged willfulness of counsel in failing to make arrangements with the stenographer for payment after being advised to do so. Unfortunately, the record does not show any such requests and appellants' counsel has filed an affidavit disputing receipt of any specific requests from the court that he pay the stenographer.

In ordering dismissal, the chief judge of the district court may have relied on the Guidelines for Ordering Transcripts that the district court clerk issued on July 1, 1987 (July 1 guidelines). ¹² The July 1 guidelines and the district court's earlier directives on that subject may have been intended to put counsel practicing in the district court's appellate division on notice that failure to make satisfactory payment arrangements with the territorial court stenographer when ordering transcripts...