McCloud River R. Co. v. Sabine River Forest Products, Inc., 83-4470

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before CLARK, Chief Judge, JOLLY, and DAVIS; CLARK
• Citation: 735 F.2d 879
• Parties: McCLOUD RIVER RAILROAD COMPANY, Plaintiff-Appellee, v. SABINE RIVER FOREST PRODUCTS, INC., Defendant-Appellant.
• Docket Number: No. 83-4470,83-4470
• Decision Date: 09 July 1984

Page 879

735 F.2d 879 39 Fed.R.Serv.2d 675 McCLOUD RIVER RAILROAD COMPANY, Plaintiff-Appellee,
v.
SABINE RIVER FOREST PRODUCTS, INC., Defendant-Appellant. No. 83-4470. United States Court of Appeals,
Fifth Circuit. July 9, 1984.

Page 880

Randolph E. Toms, President, Sabine River Forest Products, pro se, Bolen & Erwin, Gregory S. Erwin, Alexandria, La., for defendant-appellant.

Thompson, Sparks, Cudd & Dean, Wood T. Sparks, Monroe, La., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, JOLLY, and DAVIS, Circuit Judges.

CLARK, Chief Judge:

The district court granted summary judgment for McCloud River Railroad Company on its claim against Sabine River Forest Products to recover unpaid freight charges. The court also dismissed with prejudice Sabine's counterclaim for damages because of its failure to prosecute. On appeal, Sabine contends that the district court did not follow the procedural requisites of Fed.R.Civ.P. 56(c) for granting summary judgment. Specifically, Sabine maintains that the district court improperly considered an affidavit that had not been filed ten days before summary judgment and had not been served in executed form with the motion and that the court erred by granting summary judgment within ten days after service of the motion. Sabine also argues that the court abused its discretion by dismissing the counterclaim with prejudice.

We affirm the summary judgment because Sabine waived its right to object on appeal to consideration of the affidavit and because the court actually entered summary judgment fourteen days after the motion was filed. We vacate the dismissal with prejudice because the record does not indicate that the court considered imposing any less severe sanctions for Sabine's dilatory actions.

I

In July 1980, Sabine, a Louisiana corporation, purchased equipment from McCloud, a California corporation. The equipment was transported by rail to Louisiana. Sabine maintains that the equipment arrived a month late and in damaged condition. McCloud disputes this. The freight charges, which are not disputed, were $30,356.76, of which Sabine has admittedly paid $10,833.49, leaving an unpaid balance of $19,523.27.

McCloud filed suit in diversity on April 17, 1981, to recover the unpaid balance. Sabine answered and filed a counterclaim, asserting that the alleged delay and damage to the equipment caused it to suffer damages totalling $31,523.27. In addition, Sabine contends the original freight rate quoted by McCloud was $5,633.52 less than the amount actually charged and should be reduced by that amount if required to pay the balance.

Over the next two years the district court scheduled four pre-trial conferences for this cause and set six trial dates. The first two pre-trial conferences were cancelled at the joint request of counsel for McCloud and Sabine. The cancellations required setting new trial dates. The third pre-trial conference was held on August 8, 1982, but the scheduled trial date was continued by the court because of a preferential setting. The district court cancelled the fourth scheduled pre-trial conference since one had already been conducted. The fourth trial date remained scheduled for May 16, 1983.

In an April 22, 1983, order, the district court permitted Sabine's counsel to withdraw and allowed Sabine thirty days in which to retain new counsel. The trial date was rescheduled from May 16 to July 12. On April 28, Sabine's former counsel informed Sabine's president, Randolph Toms, of the court's April 22 order. On May 24, the district court rescheduled the trial from July 12 to July 7 and informed Sabine of the change.

By an order dated June 22, the district court requested that Sabine inform the court before June 28 whether it would prosecute its counterclaim on July 7. On

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the same day, June 22, McCloud filed a motion for summary judgment. Accompanying the motion was a copy of an unexecuted affidavit of G.R. Holmquist, McCloud's director of marketing and pricing. Generally, the two-page affidavit restated facts to which Sabine had stipulated in the pre-trial order. The shipping orders for the equipment sold to Sabine were attached and referred to in the affidavit. In a letter accompanying the motion, McCloud's counsel stated that the original affidavit had been sent to Holmquist in California for execution and would be submitted to the court upon receipt.

On June 28, the court notified the parties that McCloud's June 22 motion for summary judgment would be decided on the basis of the record unless oral argument was considered necessary. The court also stated that the schedule for filing briefs on the motion was controlled by local rule 10(f), which provides:

If the respondent opposes a motion, he shall file his response, including opposing affidavits (if the motion is one for summary judgment pursuant to Rule 56(c) of the Federal Rules of Civil Procedure), brief, and such supporting documents as are then available, within ten days after service of the motion. Briefs shall contain a concise statement of reasons in opposition to the motion, and a citation of authorities upon which the respondent relies. For good cause appearing therefore, a respondent may be required to file his response and supporting documents, including briefs, within such shorter period of time as the Court may specify, or may be given additional time as provided in subsection (h) of this rule, to file the response, including documents and brief.

McCloud forwarded the executed Holmquist affidavit to the court on June 28.

The following day, June 29, the court issued two orders. In its first order, the court dismissed with prejudice Sabine's counterclaim because of failure to prosecute. The court noted that Sabine had failed to abide by its April 22 order to secure new counsel within thirty days and its...