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Theodoropoulos v. Thompson-Starrett Co.

decided: November 17, 1969.


Friendly, Hays and Anderson, Circuit Judges.

Author: Anderson

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.*fn1

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,*fn2 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.*fn3 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.*fn4 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),*fn5 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, ...

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