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02/06/67 Bessie D. Newberry, v. Nathan H. Cohen Et Al.

February 6, 1967

BESSIE D. NEWBERRY, PETITIONER

v.

NATHAN H. COHEN ET AL., RESPONDENTS. BESSIE D. NEWBERRY, APPELLANT,

v.

NATHAN H. COHEN ET AL., APPELLEES 1967.CDC.22 DATE DECIDED: FEBRUARY 6, 1967



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

APPELLATE PANEL:

Prettyman, Senior Circuit Judge, Leventhal, Circuit Judge, and Coffin,* Circuit Judge of the United States Court of Appeals for the First Circuit.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEVENTHAL

Although appellant's brief sets forth seven "questions presented", some of which go to the merits of a case as yet untried, and others of which concern a case not before us, *fn1 we find but a single issue presented by this appeal: whether, under circumstances outlined below, the District Court erred in refusing to reinstate appellant's action which had been dismissed under its Local Rule 13. *fn2 We reverse and direct that the action be reinstated.

In 1964, appellant entered into a series of agreements for the conversion of her home and garage and the installation of an "American Towne House Front." Claiming to have been defrauded in various ways, appellant brought an action on September 19, 1964, against six defendants, some individuals and some corporations, seeking damages for fraud and deceit. The complaint was subsequently amended to seek, in addition to money damages, rescission and cancellation of the agreements and other equitable relief. Four of the defendants answered the amended complaint in March 1965. *fn3 The case became ensnarled in a welter of motions and pleadings.

As appellees see it, the case is quite simple. A motion to dismiss for failure to prosecute that was filed by appellee Monarch Construction Co. (on July 16, 1965) was denied by the District Court (in October 1965). Thereafter, on April 28, 1966, after a warning notice had been transmitted to the appellant's counsel, a dismissal of appellant's case was duly noted "in accordance with the requirements of Local Rule 13." Quoting from the brief of appellee Monarch --

From July 1965, until March 1966, no significant action was taken by appellant, and specifically within the next preceding six months prior to April 28, 1966, no action was taken. The Clerk's 30-day notice of impending dismissal under Rule 13, Local Civil Rules, was issued in March 1966, and when, by April 28, 1966, there still had been no further action, the complaint was dismissed.

However, upon delving into the file, we see that action was taken by appellant. Subsequent to the July 1965 date referred to by appellee Monarch, appellant, on October 11, 1965, filed a motion to compel Monarch to answer interrogatories previously transmitted.

On October 28, Monarch's attorney purported to answer these interrogatories as Monarch's "agent", but left unanswered the bulk of appellant's queries, pleading lack of personal knowledge. This attorney, be it noted, is the statutory registered "agent" of that company.

On November 3, appellant filed a motion seeking an order requiring that the interrogatories be directed to a proper corporate agent. On January 3, 1966, before the District Court ruled on this motion, counsel for Monarch filed with the Clerk of the District Court a standard praecipe form, filled in by hand to read as follows.

The Clerk . . . will please enter the following stipulation: that defendant Monarch Construction Corporation's attorney agrees to submit plaintiff's interrogatories now pending to an officer of said Monarch Construction Corporation, and to have such officer answer same, subject to appropriate objections, if any.

Insofar as the record shows, this was never done. In March 1966, the Clerk sent a notice of impending dismissal under Rule 13 -- according to appellee Monarch's brief, for the notice is not in the District Court file. In April 1966 appellant filed a motion to compel Monarch to answer the interrogatories; this motion was filed April 1, and served by mail on April 12. On May 3, 1966, the Clerk entered a form "notation of dismissal" under Local Rule 13, dismissing the action "for failure to prosecute, as of 4-28-66." On May 6, appellant moved to reinstate the cause of action contending, inter alia, that the steps which she had taken to have Monarch answer the interrogatories constituted "other action looking to the prosecution of [her] claim" within the meaning of Rule 13, supra note 2. The District Court denied the motion and denied a motion for reconsideration. Appellant timely noted an appeal.

Where there is a genuine dispute concerning material facts, the philosophy of the federal rules of procedure favors trial on the merits in contradistinction to judgments by default. See Thorpe v. Thorpe, 124 U.S.App.D.C. 299, 364 F.2d 692, 694 (1966). The District Judge made no findings when he denied the motion to reinstate. Had such findings been made, the question would have been whether the District Judge exceeded the bounds of sound discretion in exercising the inherent power of the court to dismiss an action for lack of prosecution. See Slavitt v. Meader, 107 U.S.App.D.C. 396, 397, 278 F.2d 276, 277, cert. denied, 364 U.S. 831, 81 S. Ct. 70, 5 L. Ed. 2d 57 (1960). *fn4 Here the case was automatically terminated by the operation of Rule 13, the Clerk merely making an "entry of that fact." This termination was error, for the filing of the motion to compel answers to interrogatories constituted "other action looking to the prosecution of [her] claim" within the six month period. The Clerk may be given the ministerial function of noting the dismissal of an action when nothing has happened within six months, but only the informed discretion of a judge can terminate a lawsuit while a plaintiff's discovery motion is pending. Consequently, the court below should have granted appellant's motion to reinstate her cause.

This opinion does not negative the power of a trial court to expunge a claim for reasons other than those embraced in Local Rule 13. But here the record reveals neither notice that dismissal was proposed on another ground, nor findings relating to another ground. Indeed there were no findings. The court may have been misled into assuming that Rule 13 was applicable because of Monarch's Opposition to the Motion to Reinstate which completely ignored the pendency, within the six-month period, of the interrogatories to Monarch, ...


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