Miller v. Shell Oil Co.
| Decision Date | 20 May 1965 |
| Docket Number | No. 8023.,8023. |
| Citation | 345 F.2d 891 |
| Parties | Duncan MILLER, Appellant, v. SHELL OIL CO., Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
No appearance for appellant but brief filed pro se.
Fred C. Hannahs, Santa Fe, N. M. (Seth, Montgomery, Federici & Andrews and William R. Federici, Santa Fe, N. M., on the brief), for appellee.
Before PICKETT, BREITENSTEIN and HILL, Circuit Judges.
Appellant, Miller, commenced this action in the District Court of New Mexico against appellee, Shell Oil Company, by the filing of a complaint pro se. The record reflects that he has not had the benefit of counsel in either the trial court or in this court. The first count of the complaint is inartfully drawn but attempts to allege in substance; Diversity of citizenship between the parties; presence of the required amount in controversy; and the existence of a conspiracy by which Shell sought to deprive Miller of his property without due process of law. In the second count of the complaint, Miller makes reference to an action in the Superior Court of Los Angeles, California, and apparently sought to incorporate into this cause of action by reference allegations he had made in this other case.
Appellee has filed in this court its Motion To Dismiss Appeal on the grounds that the order appealed from was not a final order. We must examine the record in order to dispose of the Motion.
The complaint, in two counts, was filed on June 26, 1964. Shell filed a motion on September 9, 1964, for dismissal of the complaint on four grounds. On October 12, 1964, Miller filed what he denominated a "Reply To Defendant's Motions". From appellee's brief, we learn that a hearing was had on that same day upon Shell's motion and the court sustained the motion but did not enter an order of dismissal until October 30, 1964. It further appears that Miller, on October 29, 1964, filed with the Clerk, what he called "Motion For Reconsideration Statement". The order entered by the court on October 30 dismissed the complaint with prejudice on the fourth ground of Shell's motion, which was upon a plea of res judicata. The record, at this point, becomes somewhat confusing. On November 4, 1964, the Clerk's office notified all parties that Miller's "Motion For Reconsideration" would be heard on November 9, 1964. On November 5, 1964, the Clerk received from Miller two other documents, one called "First Amended And Supplemental Complaint" and the other "Request For Extension Of Time For Hearing" and the Clerk on that date sent another notice of hearing to all parties setting these two documents for hearing on November 9, 1964. Again, we must refer to appellant's brief to learn that a hearing was had before the court on November 9, 1964, upon the three documents filed with the Clerk by Miller. The record shows an order entered by the court on December 4, 1964, denying the relief requested by Miller. The record further reflects that Miller filed his notice of appeal from the October 30 Order of Dismissal on November 27, 1964, which was timely under F. R.Civ.P. 73(a).
At the outset, we have a litigant prosecuting his case without benefit of counsel, which he has a right to do, even to his own detriment. Our concern, however, is the effect of the document denominated "Motion For Reconsideration Statement" and filed with the Clerk on October 29, the day prior to the court's entry of the order of dismissal. This motion refers back to Miller's "Reply To Motion To Dismiss" and recites that he understands his previous motion had not been received by the court prior to the October 12 hearing and requests that the court give consideration to his motion and its contents before finally disposing of the motion to dismiss. Such a motion cannot be said to be within the contemplation of any rule of procedure. At that point, there was no formal order to be reconsidered because none had been entered. It may be that Miller had been advised that an adverse judgment would be entered against him, and if so, the situation points up the difficulties that may arise when court decisions are not promptly journalized after a decision has...
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...12(b)..., a defendant may raise an affirmative defense by a motion to dismiss for the failure to state a claim." Miller v. Shell Oil Co. , 345 F.2d 891, 893 (10th Cir. 1965). "If the defense appears plainly on the face of the complaint itself, the motion may be disposed of under this rule."......
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