Theodoropoulos v. Thompson-Starrett Company

• Decision Date: 17 November 1969
• Docket Number: No. 130,Docket 33688.,130
• Citation: 418 F.2d 350
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Costas THEODOROPOULOS and Eleni Theodoropoulos, nee Masouras, Appellants, v. THOMPSON-STARRETT COMPANY, Inc., a corporation, and Merritt-Chapman & Scott Corporation, a corporation, Appellees.

418 F.2d 350 (1969)

Costas THEODOROPOULOS and Eleni Theodoropoulos, nee Masouras, Appellants, v. THOMPSON-STARRETT COMPANY, Inc., a corporation, and Merritt-Chapman & Scott Corporation, a corporation, Appellees.

No. 130, Docket 33688.

United States Court of Appeals Second Circuit.

Argued October 17, 1969.

Decided November 17, 1969.

Francis D. Morrissey, Chicago, Ill. (Thomas F. Bridgman, Chicago, Ill., Gregor F. Gregorich, New York City, Thomas R. Nelson, Chicago, Ill., and Baker & McKenzie, New York City, on the brief), for appellants.

Charles Korn, New York City (Marvin S. Machson and Samuel Statler, New York City, on the brief), for Thompson-Starrett Co., Inc.

Ralph L. Ellis, New York City (Shea, Gallop, Climenko & Gould, New York City, on the brief), for Merritt-Chapman & Scott Corp.

Before FRIENDLY, HAYS and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Costas and Eleni Theodoropoulos appeal from an order of November 15, 1968, dismissing their suit with prejudice for failure to prosecute, pursuant to F.R.Civ.P. 41(b), and from a subsequent order denying a motion to vacate this dismissal. We affirm.

After several years of litigating the same matter in the courts of Greece, the two plaintiff-appellants filed suit July 23, 1965, in the United States District Court for the Northern District of Illinois, seeking $4 million damages from defendant-appellees Thompson-Starrett Co., Inc. and Merritt-Chapman & Scott Corp. The action was based upon an alleged breach of two 1952 contracts pursuant to which the plaintiffs agreed to use their influence to procure certain construction work for the defendants in Greece.

The case was transferred to the Southern District of New York on January 27, 1966, upon the defendants' motion. Answers were served and depositions noticed, and the plaintiffs' depositions were ultimately taken in New York in January of 1967. The plaintiffs then sought depositions from various defendants, the taking of which was also postponed at some length at the defendants' request.

During the latter series of postponements, the action appeared on the district court's regular review calendar call of June 19, 1967, after a year and one-half on its docket. Chief Judge Sugarman conducted a pre-trial hearing and entered an order on June 20 providing that if no note of issue, showing readiness to proceed to a trial, was filed within 150 days, the action might be dismissed without further notice for want of prosecution.¹

This order specified, however, that a sua sponte dismissal would not be ordered if an application was granted within the 150 days extending the allotted time to comply with the condition requiring the filing of a note of issue. By agreement of all the parties, the plaintiffs sought and obtained an extension of the order for 90 days on November 11, 1967. The plaintiffs' petition recited that discovery was incomplete and that it sought an extension of "the 150-day order entered on June 20, 1967 for an additional ninety (90) days."

The 90-day extension of the order expired February 21, 1968; but no note of issue was filed on or before that day. Since nothing had been done, Judge Sugarman recited the terms of his initial review calendar order of the previous year in a new order dated March 6, 1968, and dismissed the action for lack of prosecution, without prejudice.

On the same day, March 6, the plaintiffs' counsel in Chicago,² who contend that they were still attempting to secure a deposition from a defendant before proceeding to trial, wrote to the defendants' counsel in New York City asking compliance with discovery requests for certain documents. There was no immediate answer, and the plaintiffs thereafter did not make further attempts to contact the defendants until August 15, 1968, nearly six months after the expiration of the requested extension of the 150-day order. When one of the defendants' lawyers replied to this second set of discovery requests on August 22, his letter pointed out that the action had already been dismissed. Upon learning this, the plaintiffs' attorneys moved on September 24, 1968, to "reinstate" the cause upon the calendar pursuant to F.R. Civ.P. 60(b). Under the rules of the Southern District, parties whose suits are dismissed customarily are sent postcards noting the filing of an order; and the filing is also reported in the New York Law Journal.³ The plaintiffs' lawyers argued that they had not received a postcard informing them of the March 6th dismissal, and there was no record that a card had been sent.

The district court granted this application for relief from the judgment in an order dated October 10, 1968, which stated:

"The order dated March 6, 1968 is vacated. Time to comply with the order dated June 19, 1967 is extended for 15 days from this date but only to the extent of filing a note of issue. No procedures under F.R.C.P. 26-37 may hereafter be had."

Once again, the period within which to file a note of issue expired without any action by the plaintiffs' attorneys. The deadline passed October 25, 1968; and in an order dated November 15, the court noted this expiration and dismissed the case with prejudice. Defendants' counsel promptly notified plaintiffs' attorneys of this action on November 20, 1968.

For the second time, the lawyers for Theodoropoulos came forward belatedly with a claim of lack of notice. They filed an application November 25, 1968, seeking an order vacating this second dismissal because they allegedly received no postcard informing them of the 15-day condition upon which their own motion to vacate the first dismissal had been granted. This time they were unable to point to an absence of evidence that a postcard had been sent and conceded that they apparently had lost it.⁴ At this time the appellants offered to file a note of issue at once. This application was denied in an order which was dated December 12, 1968, and filed on December 16.

On December 26, plaintiffs' counsel applied for a "rehearing" of their motion to restore the case to the calendar, which was treated by the district court as a motion for reargument under the Southern District's Rule 9(m),⁵ which it denied in an order dated April 5, 1969. On May 1, 1969, the plaintiffs filed a notice of appeal from the four orders of March 6, November 15, December 12 and April 5 (two dismissals, a refusal to vacate, and a refusal to grant reargument).

An appeal ordinarily does not lie from an order denying a motion for reargument, Vine v. Beneficial Finance Co., 374 F.2d 627 (2 Cir.), cert. denied 389 U.S. 970, 88 S.Ct. 463, 19 L.Ed.2d 460 (1967), in the absence of new matter arising after the original presentation of the argument, see Hines v. Seaboard Airline RR. Co., 341 F.2d 229 (2 Cir. 1965); and of course no appeal is necessary from an order which has been vacated. Thus the first and last orders cited, March 6 and April 5, are not appealable. But the plaintiffs' appeal of the November 15 dismissal was timely, and it also properly brings before us the order denying a motion to vacate it on December 16.

The timeliness of an appeal is a jurisdictional question, Guido v. Ball, 367 F.2d 882 (2 Cir. 1966). In this case the appellants' timely motion to vacate was the equivalent of a motion under F.R.Civ.P. 59(e) and terminated the running of the time for filing a notice of appeal from November 15 until December 16, F.R.App.P. 4(a); Vine v. Beneficial Finance Co., supra, 374 F.2d at 632; 9 Moore, Federal Practice ¶ 204.121, pp. 949-951 (2d ed. 1969). After this, the timely motion for reargument on December 26 further tolled the time to appeal from that date until its denial on April 7. Cf. Hines v. Seaboard Airline RR. Co., supra, 341 F.2d at 232.⁶ The May 1 appeal was then taken within the 30 days provided by F.R.App.P. 4(a). There is, therefore, no jurisdictional infirmity which would bar our determination of the issue.

We hold that the district court did not abuse its discretion in dismissing the appellants' suit with prejudice. The dismissal was proper despite the fact that the plaintiffs claim their counsel did not receive actual notice of the relevant orders and thus were unable to file a note of issue within any of the specified times, and despite the absence of a showing of specific prejudice to the defendants. See West v. Gilbert, 361 F.2d 314 (2 Cir.), cert. denied 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966).

In the case of the first dismissal, appellants' counsel concededly saw the initial 150-day order and expressly asked for a 90-day extension of this order while they completed discovery; yet they now maintain that they did not understand the 90-day extension to continue the provision for a sua sponte dismissal if no note of issue was filed. This first claim of lack of notice boils down to an assertion that the plaintiffs simply failed to comprehend the terms of their own stipulation with the defendants and should, therefore, be excused for paying no attention to the status of the case until six months after the time for filing expired, making no inquiry, and not noticing an announcement which was presumably published and which did reach the attention of the opposing parties.

Appellants also contend that it was excusable...