MacNeil Bros. Company v. Cohen

• Decision Date: 05 March 1959
• Docket Number: No. 5453.,5453.
• Citation: 264 F.2d 190
• Parties: MacNEIL BROS. COMPANY et al., Plaintiffs-Appellants, v. Wallace M. COHEN, Defendant-Appellee.
• Court: U.S. Court of Appeals — First Circuit

264 F.2d 190 (1959)

MacNEIL BROS. COMPANY et al., Plaintiffs-Appellants, v. Wallace M. COHEN, Defendant-Appellee.

No. 5453.

United States Court of Appeals First Circuit.

March 5, 1959.

Angus M. MacNeil, Somerville, Mass., on memorandum of appellants in opposition to motion to dismiss.

Phillip Cowin, Boston, Mass., on motion of appellee to dismiss and memorandum in support thereof.

Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.

PER CURIAM.

We have before us a motion to dismiss filed by the appellee in another case brought by Angus M. MacNeil, Esq., as co-plaintiff with various Massachusetts corporations. As we observed in MacNeil Bros. Co. v. State Realty Company of Boston, Inc., No. 5440, 1 Cir., 262 F.2d 364, 367, it seems "impossible for MacNeil to present appeals to this court unembarrassed by some procedural snarl". Certainly the present mixed-up case is no exception.

The case was started on its way by the filing on July 11, 1957, in the United States District Court for the District of Maryland, of a diversity complaint in tort for damages by MacNeil Bros. Company, eight other Massachusetts corporations, and Angus M. MacNeil individually, against Wallace M. Cohen as sole defendant. It was asserted in the complaint that during the period involved Cohen was a partner in the law firm of Fox, Orlov & Cowin and fully liable for the tortious conduct of his co-partners. MacNeil bombarded the court with various motions. One of these was a motion on behalf of the plaintiffs asking the Maryland district court to transfer the case to the United States District Court for the District of Columbia, under 28 U.S.C. § 1404(a). However, the court chose to grant a motion by appellee that the case be transferred to the District of Massachusetts. Referring to a motion to dismiss which had been filed by the appellee, but not disposing of it, Chief Judge Thomsen of the United States District Court for the District of Maryland, 158 F.Supp. 126, stated as follows:

"If the action is not dismissed, it should certainly be transferred to the District of Massachusetts under 28 U.S.C.A. § 1404(a), for the convenience of parties and witnesses and in the interests of justice. However, I cannot fairly deliver to a brother judge this prickly plant which sprouts new motions every few days without first considering the motion to dismiss.

"The complaint is confusing, especially in its allegations of various proceedings in the State Courts of Massachusetts; however, the motion to dismiss refers to these and other proceedings in the Massachusetts courts, and the parties agreed that in passing on the motion to dismiss I should consider a great many judgments, decrees and orders, copies of which were marked for identification. After reading those documents, I am satisfied that a proper ruling on the motion to dismiss requires a consideration of many questions of Massachusetts law and practice, with which this court is unfamiliar, but which would be familiar to a judge in the District Court for the District of Massachusetts. I have reluctantly concluded, therefore, that I should transfer the case to that court at this time."

When the case thus got on the docket in the District of Massachusetts on January 22, 1958, protracted proceedings followed, and finally, on October 6, 1958, the district court entered judgment dismissing the complaint. An accompanying opinion expressed the view that the original complaint, seen in its most favorable light, stated no cause of action and that an attempted amendment to the complaint had not cured the defect.

The losing plaintiffs filed, on December 1, 1958, a single notice of appeal. This document purported to take an appeal from nine separate orders or judgments of the United States District Court for the District of Massachusetts entered in the course of the proceeding. The numbering of these court orders is preserved herein as stated in the notice of appeal, but corrections have been made in the dates given and the orders have been rearranged by us in chronological sequence. The orders or judgments thus sought to be reviewed are:

(3) Opinion and order of April 23, 1958, 163 F.Supp. 106, granting appellee's motion to dismiss complaint, on the ground of failure to state a cause of action, with leave to the plaintiffs to move to amend the complaint within twenty days.

(1) "Denial" of a motion filed by the plaintiffs on June 13, 1958, for "fusion and consolidation" of the present case with a case of similar subject matter entitled MacNeil Bros. Co. v. Fox, Orlov & Cowin. We cannot find in the certified record any evidence that the district court ever acted upon this motion. This really makes no difference, for reasons we are about to indicate; and we shall assume for present purposes that the court entered an order denying the said motion.

(4) "Denial" of a motion by plaintiffs filed September 22, 1958, requesting transfer of the case to the District Court for the District of Columbia. Again, we cannot find that the district court ever disposed of this motion, but it makes no difference. An oral motion to transfer the case to the District of Columbia was, however, made, and was denied on September 29, 1958. It is interesting to note that plaintiffs did not purport to take an appeal from the order of September 29, 1958, denying this oral motion, although we assume this alone would not preclude them from assigning it as an error relied upon.

(2) Order of denial entered September 29, 1958, of a motion made on the same day seeking the entry of a default judgment.

(5) Opinion and order of October 6, 1958, denying a motion by plaintiffs filed May 11, 1958, seeking to amend the complaint, on the ground that the complaint as proposed to be amended would still be insufficient.

(9) Judgment entered October 6, 1958, dismissing the complaint.

(6) Order of October 17, 1958, denying plaintiffs' motion to vacate and to reconsider, which was filed on October 10, 1958. Assuming for present purposes that this motion was duly served on the defendant's attorney, it was a timely motion to vacate, under Rule 59, 28 U.S.C., and thus tolled the running of the statutory period for taking an appeal. So, under Rule 73(a) of the Federal Rules of Civil Procedure, the plaintiffs had thirty days from October 17, 1958, within which to file the notice of appeal from this order of denial. The notice of appeal filed December 1, 1958, was therefore untimely and insufficient to confer upon us jurisdiction to review the order refusing to vacate.

(7) Order of October 30, 1958, denying a motion filed by plaintiffs on October 27, 1958, to vacate the orders entered under (5) and (6), supra. It is obvious that this motion was not timely filed under Rule 59, since it was filed more than ten days after the judgment of October 6, 1958, dismissing the complaint. It follows that the motion did not toll the time for taking an appeal from the judgment under Rule 73(a). The district court had no power to grant the relief sought in the motion, and hence the motion must be treated as a nullity. See Jusino v. Morales & Tio, 1 Cir., 1944, 139 F.2d 946. Moreover the thirty-day period for taking an appeal from the order of denial of October 30, 1958, ended on Saturday, November 29, 1958; and the notice of appeal in this case filed Monday, December 1, 1958, was untimely even as to it. See Rule 6(a) of the Federal Rules of Civil Procedure,...