Clark v. United States

13 F.R.D. 342, 1952 U.S. Dist. LEXIS 3668
CourtDistrict Court, D. Oregon
DecidedSeptember 8, 1952
DocketCiv. No. 4420
StatusPublished
Cited by16 cases

This text of 13 F.R.D. 342 (Clark v. United States) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. United States, 13 F.R.D. 342, 1952 U.S. Dist. LEXIS 3668 (D. Or. 1952).

Opinion

JAMES ALGER FEE, Chief Judge.

The United States, in order to house wartime workers in the Kaiser Shipyards, condemned land situated in the Peninsula Drainage District and therein erected the City of Vanport, which was wholly owned by the United States. The location was entirely surrounded by enbankments and was washed on three sides by the floodwaters of the Columbia River. On May 30, 1948, the river, then at a flood height of 29.-6 above mean high water, broke through an embankment and flooded the city, which had a population at that time of some sixteen thousand inhabitants, approximately. Much personal property was destroyed by the action of the water, as were most of the erections by the government on the site. Subsequently, seven hundred twelve actions for property damage, comprising some three thousand claims, were filed against the United States for loss and damage to this property under the terms of the Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680. The amounts involved ran to several million dollars. The regular routines prescribed by the Tort Claims Act were followed. The government attorneys filed dilatory motions, but these were all reserved by the Court until the time of the pre-trial conference. Under the direction of the Court, answers were filed to each of the complaints. With the consent of all parties, however, time was allowed to lapse until the Statute of Limitations had run on all claims. Since Congress once extended time of limitation, considerable time elapsed before the cases were in a situation to be submitted, even for preliminary action.

fl] Since extremely complicated issues of law were involved as to liability, and if there were liability, enormous detail of fact in settling damages, the Court conceived of this as the big case in which pre-trial conferences should be held and a definitive pre-trial order drawn. These conferences were held in open court with a reporter. A pre-trial order was drafted in tentative form and discussed at several hearings in open court in the presence of great numbers of the plaintiffs. As has been noted before, this procedure accords with the theory of the Court that the litigants themselves should be present in order that they may see and hear what disposition is made of thei-r rights. Eventually, the attorneys arrived at complete agreement. During the [344]*344course of the conferences, certain parties plaintiff and the government representatives selected twenty cases of the entire group for trial. All of these cases were concerned with property damage. Thereupon, by the consent of the parties and the attorneys in the selected group of cases at a final pretrial conference, there was submitted a final definitive pre-trial order applicable in the selected group of cases. The Court thereupon signed and approved this pre-trial order.

In order that there might be a complete submission upon the question of liability, the Court thereupon directed that all of the plaintiffs in other cases should either draw and submit to the Court a proposed definitive pre-trial order covering liability in his particular case or should agree of record to accept the issues as to liability set out in the pre-trial order covering the twenty cases which were to be tried. Otherwise, if neither of these two alternatives were chosen, the plaintiff in that particular case would be defaulted and the case dismissed for want of prosecution.

The case then came on for trial upon the selected causes upon the issues of liability alone. Thereafter, briefs were submitted in elaborate form by plaintiffs and defenddants. After a review of these 'briefs, the Court ordered an oral argument which covered the whole field of liability. Upon the eve of decision, the Court has again reviewed the definitive pre-trial order in the light of the testimony and the arguments. The Court now gives final approval to the pre-trial order as embracing all the issues of fact and law in the case.

This final review is frankly given in order to avoid the force of Rule 15(b), Fed.Rules Civ.Proc. 28 U.S.C.A., which reads:

“Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”

There is authority to the effect that an appellate court may thus try issues which neither the trial judge nor the attorneys nor the parties may have thought were involved in the case. In order to avoid such a misconception, the Court now finds that the issues set out in the pre-trial order were the only ones tried, whether of fact or of law. If someone hereafter conceives that other issues were tried, the proper result would be to send the case back for the trial of those issues rather than assuming that such issues were tried.

The order which is hereinafter set forth is drawn by the attorneys. The Court has confined itself largely to making suggestions so that all of the issues should be covered. The definitive order is, of course, a consolidated pleading, and traditionally the pleadings have been drawn by the attorneys for the parties rather than by the Court. The function of the legal profession is thus to protect their clients by so drafting the issues that the interests which they are hired to maintain can properly be stated. The pre-trial order in this case is ably and accurately drawn. It is in four parts, as follows: first, a detailed statement of the facts upon which the parties could agree; second, a statement of the contentions of the parties as to fact and as to law; third, the statement of the issues of fact and the issues of law as agreed upon between the attorneys; and fourth, a list of all the documents which either party believed he might introduce in his own case.

The first of these sections is very important. There the parties have agreed to a narrative in story form as to a great many facts which are salient and pertinent in the dispute but about which there could be no disagreement. It is true that a great deal of this material could have been placed in the background of the litigation by assertions and denials of fact, but such a tremendous amount of it is evidentiary in character [345]*345that this would not have served the purposes. Here the background for the action in the controversy is laid. By such a thorough-going review of all the facts which are not in issue and over which there is no controversy, the contested issues are brought sharply into the foreground. It may be, of course, that, under the issues, considerable of this material is irrelevant and immaterial, but nevertheless it gives color to the contested issues by building up these dikes of uncontested facts. The flow of the action is canalized and kept within bounds.

In the second phase of the order, the parties by succinct statement set up their theories of recovery and of defense. This is an extremely important function of the pre-trial order. The doctrine that there has to be a theory of the pleadings has been much criticized in the past. But, obviously enough, no lawyer can go into the trial of the case unless he has some theory of substantive law upon which he bases his right to recover. If it is improper to deduce this from the language of the pleading, it certainly is not improper for the party to set it out and be bound by his theories of recovery.

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Bluebook (online)
13 F.R.D. 342, 1952 U.S. Dist. LEXIS 3668, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-united-states-ord-1952.