United States v. Thomson

• Court: U.S. District Court — Southern District of New York
• Writing for the Court: J. Edward Lumbard, New York City, for plaintiff
• Citation: United States v. Thomson, 114 F.Supp. 874 (S.D. N.Y. 1953)
• Decision Date: 24 September 1953
• Parties: UNITED STATES v. THOMSON et al.

114 F. Supp. 874

UNITED STATES v. THOMSON et al.

United States District Court S. D. New York.

September 24, 1953.

J. Edward Lumbard, New York City, for plaintiff.

Herman B. Goodstein, New York City, for defendants.

EDELSTEIN, District Judge.

Defendants move for summary judgment in an action against them as executors of the estate of their testator for an obligation on a surety bond claimed to have been incurred by the decedent. The surety bond was executed in connection with a lease by the United States, pursuant to statutory authority, of space within the Army Supply Base at Boston. In 1931 the United States commenced an action against the lessee, as principal obligor, and a co-surety with the testator under the bond, in the United States District Court for the District of Massachusetts. The testator, being a resident of New York, was not joined in that action. An answer was filed, but after the lapse of more than two years, the case was dismissed without prejudice for lack of prosecution, in accordance with a local general rule of the Massachusetts Federal District Court. That rule also provided that any case so dismissed (because of lack of prosecution for two years preceding the first day of January in each year) might be revived and restored to the docket upon a showing of good cause within two months (i. e., on or before the following March 1). The case was restored to the docket under this proviso, but subsequently dismissed, restored and dismissed for a third time on January 3, 1938. The case has never since been restored to the docket of the Massachusetts court.

The motion for summary judgment is urged on the grounds (1) that the last decree of dismissal in the Massachusetts court operates as an adjudication on the merits rendering res judicata the issue of the obligation of the principal obligor, and consequently, the issue of the surety obligation of the decedent's estate, and (2) that the United States is barred from prosecuting this claim by the New York statute of limitations.

The defendants argue that the last dismissal "without prejudice" under the local rule of the Massachusetts Federal District Court was converted into a dismissal "with prejudice", or an adjudication on the merits, by the subsequent failure to revive and restore the case to the docket within two months, under the proviso to the rule. Neither counsel has cited nor has my research discovered an appropriate case in point. Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., provides that a dismissal under that sub-division "and any dismissal not provided for in this rule," (with exceptions not relevant here) operates as an adjudication upon the merits unless the court in its order for dismissal otherwise specifies. Dismissal under the local rule is a dismissal not provided for in Rule 41 (nor is it in conflict with Rule 41(b), Burns Mortgage Co., Inc., v. Stoudt, D.C., 2 F.R.D. 219; Adams v. Jarka Corporation, D.C., 8 F.R.D. 571. Thus, assuming the applicability of Rule 41(b), the Massachusetts court has, in its order of dismissal, "otherwise" specified, so as to prevent the rendering of an adjudication upon the merits. The passage of two months' time eliminated the possibility of reviving and restoring the case to the docket. But the dismissal order of the court remains as one "without prejudice". Reference to the order of dismissal in Rule 41(b) does not, it seems to me, extend to a local court rule, so that the latter may have the effect of cancelling a term of the former. On the contrary, it would appear that the local court rule serves an entirely different purpose, that of regulating the court's dockets, and it must be viewed in the light of the inherent power of a court to keep its dockets clear rather than in the light of adjudicating merits of controversies. See, Burns Mortgage Co., Inc., v. Stoudt, D.C., 2 F.R.D. 219; Moore's Federal Practice (2nd ed.), vol. 5, § 41.112, page 1036. Adjudication upon the merits of controversies is a function of court orders, and the Massachusetts court has not by its order adjudicated any merits. Of course, the exercise of control over a court's dockets may in many cases be, for all practical purposes, tantamount to an adjudication on the merits. In Canning v. Hackett, D.C.D.Mass., 3 F.Supp. 460, 461, involving the very rule here discussed, the court stated that after the two month period the "final disposition of the case" could not be disturbed. The holding of the court was a denial of plaintiff's motion to restore the case to the docket. The plaintiff was barred from continuing that particular action in that court, and without the availability of another forum, the adjudication might as well have been on the merits as far as that plaintiff is concerned. Cf., United States v. Fischer, D.C.E.D.N.Y., 16 F.Supp. 743. The plaintiff here is not attempting to restore the dismissed case to the docket of the Massachusetts court, and does not contend that it would be entitled to. It is pressing a different case in a different forum, and hence is not precluded by the docket regulation of the first forum. Since the judgment of dismissal previously entered in the Massachusetts forum was not an adjudication upon the merits in favor of the principal obligor, it is not res judicata on the issue of the surety's obligation. United States v. American Surety Co., 2 Cir., 56 F.2d 734.

The defendants' second ground for summary judgment is that the claim is barred by the New York statute of limitations (specifically § 46 of the Civil Practice Act). The problem, however, is whether the United States can thus be barred. It is not disputed that the general rule holds the United States immune from state time limitations, but it is argued that the rule is applicable only when the Government is acting in a sovereign capacity. "If it comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there." Cooke v. United States, 91 U.S. 389, 398, 23 L.Ed. 237. Cases...