Russell v. Cunningham

• Decision Date: 06 June 1960
• Docket Number: 15680.,No. 15450,15450
• Citation: 279 F.2d 797
• Parties: William R. RUSSELL, Appellant, v. William CUNNINGHAM, Appellee. William R. RUSSELL and Anna L. Russell, Appellants, v. UNITED STATES of America et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

279 F.2d 797 (1960)

William R. RUSSELL, Appellant, v. William CUNNINGHAM, Appellee.

William R. RUSSELL and Anna L. Russell, Appellants, v. UNITED STATES of America et al., Appellees.

Nos. 15450, 15680.

United States Court of Appeals Ninth Circuit.

June 6, 1960.

Philip R. Lawrence, San Francisco, Cal., for appellant.

George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, Leavenworth Colby, Attys., Dept. of Justice, Washington, D. C., Keith Ferguson, Special Asst. to the Atty. Gen., Lynn J. Gillard, U. S. Atty., Graydon S. Staring, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, HEALY and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

William R. Russell is the sole appellant from an order of the District Court of Guam refusing to set aside a judgment of dismissal entered by that Court for lack of prosecution, and, with his wife, is an appellant from a judgment of the District Court for the Northern District of California dismissing a complaint filed in that Court. By order of this Court, both appeals were heard together. We shall first consider the Guam appeal, which was taken from an order denying appellant's motion under Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A. to set aside a judgment of dismissal.

It appears that appellant was a member of the crew of the U.S.N.S. Morton which had docked at Guam. On April 11, 1954, appellant in company with another crew member went to the Cliff House, a restaurant club on Guam which apparently was an instrumentality of the United States, for the purpose of having dinner. While there he became involved in an altercation with Cunningham, who at that time was a civil service employee of the United States through the Military Sea Transportation Service, Department of the Navy, and who at some prior time had been an officer on the U.S.N.S. Morton. Appellant and Cunningham have different versions as to what occurred, but in any event it is conceded that as a result of the trouble between appellant and Cunningham, appellant received injuries which resulted in the permanent loss of sight of his right eye. He was confined in a hospital in Guam and while there employed an attorney in Guam to file an action for damages against Cunningham.

On April 24, 1954, Russell was flown by the Navy from Guam to San Francisco and placed in the United States Public Health Hospital there.

On April 26, 1954, two days after Russell's departure from Guam, his Guam attorney on his behalf filed an action for damages against William Cunningham in the District Court of Guam alleging that in a restaurant club on the military reservation of Guam, Cunningham, without reason or cause, had assaulted appellant by striking appellant with his clenched hand, as a direct result of which appellant suffered the loss of his right eye.

Some depositions of crew members were taken in Guam and a pre-trial conference was held by the District Judge on June 3, 1954, at which time the defendant contended he had not struck Russell but that Russell had suffered his eye injury when he fell and struck a stool or chair.

While in San Francisco, Russell obtained San Francisco counsel who corresponded with Guam counsel. Thereafter, over a period of months, through correspondence, San Francisco counsel sought unsuccessfully to take depositions of witnesses who had been in Guam at the time of the eye injury but who had since returned to San Francisco either as crew members of ships docking in San Francisco or as permanent residents. At some time prior to April, 1955, Cunningham also left Guam and returned to California.

During this period, Guam counsel, Mr. Duffy, on July 22, 1954, wrote a letter to San Francisco counsel, Mr. Lawrence, that the case was indefinitely postponed pending Russell's arrival in Guam.

On April 11, 1955, Mr. Lawrence in San Francisco received a letter from Mr. Duffy stating that the trial had been set for May 3, 1955. A motion for a continuance was promptly prepared in San Francisco and filed in Guam, alleging in brief that Russell had no funds or means to go to Guam for the trial or to make the necessary preparations therefor. On April 19, the District Court in Guam made an order continuing the trial to August 15, 1955, and added, "The plaintiff will be expected to be present at that time to testify in person or to testify by deposition, since this order assumes at the present time that further continuance will not be granted."

It further appears that on June 3, 1955, Russell shipped aboard the S.S. Ainsworth bound for Honolulu, Kwajalein and Guam. He took all his papers with him, hoping to consult Mr. Duffy in Guam. On June 21, 1955, the day he arrived in Guam, he talked to the District Judge at the airport, as the Judge was preparing to leave for San Francisco. He contends that he told the Judge that he had learned that Cunningham was in California, of his (Russell's) difficulties financially and otherwise in coming to Guam, and that he had been forced to file additional actions against Cunningham and others in California. The District Judge indicated he knew of this and, according to Russell, told Russell that if Cunningham were served in California that he would dismiss the Guam case "without prejudice." During the portion of the two days Russell was in Guam, he talked to Mr. Duffy, examined reports on file in an endeavor to locate names of additional witnesses, and tried to gather information as to the whereabouts of Cunningham in California so that he could there be served. Russell sent a radiogram to Lawrence from Guam¹ and on the way home while in Honolulu telephoned Lawrence in San Francisco giving him further information about Cunningham's whereabouts. Russell returned to San Francisco on July 7 and two weeks later Cunningham was served with process in the San Francisco actions on July 19, 1955.

On July 29, 1955, Russell wrote a letter to the District Judge, which is set out below.²

Under date of August 3, 1955, the District Judge wrote a letter to Russell that local counsel had made no motion for a continuance, and advised him he could assume that the action would proceed on August 15, 1955.

It further appears that at that time Mr. Lawrence, believing that the action would not be tried on August 15 in Guam, had left San Francisco on his vacation. Russell contacted another lawyer in his office and communications were sent to Mr. Duffy in Guam, urging him to move for a continuance of the case or a dismissal without prejudice. This motion was filed in Guam on August 10, 1955, was heard by the District Judge on August 12, was denied at that time, and on August 15 when the motion was renewed by Guam counsel it was again denied and the Judge dismissed the action with prejudice for lack of prosecution. An appeal was taken by Russell by his San Francisco counsel from this judgment of dismissal upon the ground, among others, that there had been a gross abuse of discretion by the District Court.

In the presentation of that appeal to this Court, many facts were set forth in the briefs which were not in the record before the District Court. The opinion of this Court, which is found at 233 F.2d 806, 809, stated:

"Both parties in their briefs seek to bring before this Court facts outside the record made below, but such an attempt to enlarge the record must be rejected. This Court cannot conclude that the District Court abused its discretion when the explanation for long delay and inaction was not before it."

This Court further stated "there is no evidence in the record to support the District Court's finding that appellant `has been in a financial position to have additional depositions taken' or that `plaintiff has no bona fide intention to do more than harass the defendant.'"

This Court, in discussing appellant's contention that the action should not have been dismissed, stated:

"However, most of the facts indicating that the action should not be so dismissed were not presented to the District Court. Undoubtedly judges must be careful not to penalize litigants who cannot swiftly proceed because of the very injury and its impairment of their finances which constitutes the basis of their claim. Here another dimension is added to the problem since the District Court is in Guam and a poor litigant is in San Francisco."

The Court further said:

"* * * it cannot be said that the District Court abused its discretion without resorting to contentions of fact not found in the record.

"However, appellant is not entirely without the possibility of a remedy. Much of the material he sought to present to the Court outside of the record could be presented to the District Court of Guam to support a motion under F.R.C.P. 60 (b) which provides in part:

"`On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; * * *.\'

"If all of the material in appellant\'s brief were before the trial court, it might come to a different conclusion."

In accordance with the suggestion of this Court, appellant then filed a motion under Rule 60(b), F.R.Civ.P. in the District Court of Guam asking that the order of dismissal of August 15, 1955, be set aside and that the action be dismissed without prejudice upon the ground that the Court's order "was entered by reason of mistake, inadvertence, surprise and excusable neglect." This motion was supported by the affidavit of the appellant, together with the affidavit of his San Francisco counsel, and various exhibits were attached to these affidavits. The entire motion, together with the affidavits and exhibits attached thereto, consume about 80 pages of the typewritten record on this appeal.

This motion was heard before the Guam District Court, local Guam counsel appearing for appellant.³ The motion was denied and this appeal is from the denial of the motion.

Appelle...