Moreno v. Collins
| Decision Date | 09 June 1966 |
| Docket Number | No. 15581.,15581. |
| Citation | 362 F.2d 176 |
| Parties | Maria MORENO, Plaintiff-Appellant, v. Bartley COLLINS, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Howard T. Goffen, Jonas, Goffen & Steffens, Chicago, Ill., for appellant.
William J. McNamara, Oak Park, Ill., for appellee.
Before HASTINGS, Chief Judge, DUFFY, Circuit Judge, and BEAMER, District Judge.
Maria Moreno, the widow of Isidor Moreno, and the mother of Mark Moreno, aged three, is a citizen and resident of Texas. She brought a suit in the United States District Court for the Northern District of Illinois against Bartley E. Collins, a citizen of Illinois. The complaint sought damages for the wrongful death of Isidore Moreno allegedly caused by Collins' negligence which resulted in the fatal automobile accident.
On October 18, 1965, Eduardo E. de Ases, attorney at law of Corpus Christi, Texas, filed the above complaint in the United States District Court for the Northern District of Illinois. The summons was issued on October 19, 1965, but not served until December 29, 1965.
Pursuant to the rules of the District Court, Attorney de Ases, on December 7, 1965, retained local counsel. The Court entered an order on December 22, 1965, permitting Attorney Howard T. Goffen of Chicago to appear as associate counsel for plaintiff.
On December 22, 1965, and on subsequent occasions, local counsel checked with the United States Marshal and was informed that the defendant still had not been served, but that additional attempts would be made.
On January 13, 1966, Attorney William McNamara of the Illinois Bar informed plaintiff's local counsel that the defendant had been served with process on December 29, 1965, and that he, McNamara, would appear on his behalf. McNamara filed his appearance on January 17, 1966.
McNamara then prepared and sent to local counsel for plaintiff a stipulation for an extension of time to answer the complaint. Plaintiff's local counsel signed the stipulation and returned it to defendant's attorney, on January 20, 1966.
Although the cause was not at issue and process had been served on defendant only twenty-one days earlier, the District Court, on January 20, 1966, called the case on the status call. Plaintiff's local counsel was not aware that the case was on the status call for that date and did not appear.
When the case was called, the Judge remarked it was a strange case, filed by a Texas attorney with no summons filed, no return, and no lawyer appearing for the plaintiff. The Judge, sua sponte, directed the case to be dismissed for want of prosecution. The Judge was unaware that the summons had been served since the United States Marshal had not yet placed the return summons with the clerk.
On January 24, 1966, plaintiff's local counsel received notice that the case had been dismissed. He immediately telephoned defendant's attorney who agreed to sign a stipulation to reinstate the case. Local counsel for plaintiff prepared a stipulation to that effect and mailed it to defendant's attorney on January 24. Later, defendant's attorney stated he could not sign the stipulation as he had some doubt whether the statute of limitations had run.
On January 28, 1966, local counsel for plaintiff received his initial notification from the United States Marshal that the defendant had, in fact,...
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Moore v. St. Louis Music Supply Co., Inc.
...be subject to discipline, but it does not follow in this case that his client should be the one to feel the lash. See Moreno v. Collins, 362 F.2d 176, 178 (7th Cir. 1966). A more appropriate action would generally be dismissal without prejudice. Bardin v. Mondon, 298 F.2d 235, 238 (2d Cir. ......
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Camps v. C & P Telephone Co., 80-1799
...following counsel's absence from hearing on opposing party's motion to dismiss constituted abuse of discretion); Moreno v. Collins, 362 F.2d 176, 178 (7th Cir. 1966) (dismissal for want of prosecution following counsel's failure to appear at status call constituted abuse of discretion).The ......
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Geodesco, Inc. v. Commissioner
...disobedience cannot be attributed to an attorney or other representative, rather than to petitioner itself. See Moreno v. Collins, 362 F.2d 176, 178 (7th Cir. 1966). Indeed, as far as the Court is aware, petitioner never retained outside counsel in this matter. Mr. Goulding never entered hi......