Redding v. Essex Crane Rental Corp. of Alabama, 84-3624
| Decision Date | 11 February 1985 |
| Docket Number | No. 84-3624,84-3624 |
| Citation | 752 F.2d 1077 |
| Parties | Kenneth REDDING, and Rhonda Redding, Individually and His Wife, Plaintiffs-Appellants, v. ESSEX CRANE RENTAL CORPORATION OF ALABAMA, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Richard A. Thalheim, Jr., Thibodaux, La., for plaintiffs-appellants.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WILLIAMS, JOLLY, and HILL, Circuit Judges.
Four times the district court notified the attorney for appellants, the Reddings, that their diversity suit for damages was subject to being dismissed because no steps had been taken to serve the named defendant, Essex Crane Rental Corporation of Alabama. Four times the attorney for the appellants replied that service would be made "at an appropriate time" or that service would be made "when the time had arrived to do so". After the fourth such response, 255 days having elapsed since the filing of the suit, and with a finding that no good cause had been shown, the district court dismissed the suit under F.R.Civ.P. Rule 4(j). We affirm.
After the dismissal of the suit, appellants filed a motion to "vacate, set aside, and annul, the order of dismissal." The motion pointed out that the dismissal without prejudice actually served as a dismissal with prejudice because the period of limitations had run on the suit. It did not, however, point out any claimed "good cause" reason for the delay. It simply said that the appellants did intend to prosecute the suit "at an appropriate time". The district judge denied the motion.
From the court's brief memorandum opinion in denying the motion and from the argument of counsel in the brief presented to this Court, we find a presentation of the facts which appellants claim justifies their conduct in filing this suit but in failing to serve process on the named defendant. The assertion is that appellant was seriously injured in an industrial accident while working for Essex Crane. The explanation of the justification for failure to act in the federal case is remarkable. Appellants and their attorney avow the belief that they could obtain a better settlement in the state compensation claim if Essex Crane had not had the opportunity to develop in the federal case its entire tort defense through discovery. The district judge saw this as using the federal courts "to serve the whim of litigants or their lawyers". We...
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Krasnow v. Allen
...expiration of a statute of limitations could bar a plaintiff from bringing an action [citations omitted]"); Redding v. Essex Crane Rental Corp., 752 F.2d 1077, 1078 (5th Cir.1985); Burks v. Griffith, 100 F.R.D. 491, 493 (N.D.N.Y.1984); Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 663 (D.Md......
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Hunt v. Smith, 1:99-CV-22.
...a right to refile without the consequence of time defenses, such as the statute of limitations. See Redding v. Essex Crane Rental Corp. of Alabama, 752 F.2d 1077 (5th Cir.1985). As the Third Circuit Court of Appeals has cautioned, "[t]he lesson to the federal plaintiff's lawyer is not to ta......
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In re Ohio Execution Protocol Litig.
...Green v. Humphrey Elevator and Truck Co. , 816 F.2d 877, 879 & n.6 (3rd Cir. 1987) ; Redding v. Essex Crane Rental Corp. of Alabama , 752 F.2d 1077 (5th Cir. 1985) ; Deloss v. Kenner , 764 F.2d 707, 711 n.5 (5th Cir. 1985) ); see also Sheffey v. City of Covington , Case No. 08-cv-238, 2012 ......
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Friedman v. Estate of Presser
...the severity of such a result, dismissal is nevertheless warranted. See Green, 816 F.2d at 879 & n. 6; Redding v. Essex Crane Rental Corp. of Alabama, 752 F.2d 1077 (5th Cir.1985) (affirming dismissal despite fact statute of limitations had run); Deloss v. Kenner General Contractors, Inc., ......