John Smith v. James Oelenschlager and James F. Green

845 F.2d 1182

• Court: Court of Appeals for the Third Circuit
• Decided: May 12, 1988
• Docket: 87-1552
• Status: Published

Opinions

OPINION OF THE COURT

SLOVITER, Circuit Judge.

The appellant asks us to reverse the order dismissing his motion for a new trial, arguing that the district court abused its discretion in following the literal language of a local rule. Local Rule 20(e) of the District Court for the Eastern District of Pennsylvania, provides:

Within ten (10) days after filing any post-trial motion, the movant shall either (a) order a transcript of the trial by a writing delivered to the Court Reporter Coordinator, or (b) file a verified motion showing good cause to be excused from this requirement. Unless a transcript is thus ordered, or the movant excused from obtaining a transcript, the post-trial motion must be dismissed for lack of prosecution.

E.D.Pa. R. 20(e).

Appellant John Smith was the plaintiff in a personal injury diversity action tried before a jury and United States Magistrate Richard A. Powers, III, by agreement of counsel.¹ The trial was electronically transcribed, and there was a technician operating the tape recorder but no stenographic court reporter present during the proceedings. After the jury awarded plaintiff four thousand dollars in damages, plaintiff filed a motion for a new trial alleging various trial errors and the inadequacy of the verdict.

Local Rule 20(e) mandates that an order for a transcript be delivered to the Court Reporter Coordinator within ten days of the post-trial motion. Smith’s attorney failed to follow this procedure and instead hand-delivered a letter to Magistrate Powers, with a copy to Judge Charles R. Weiner, the district court judge assigned to this matter. The letter recited that a new trial had been moved, and continued:

Pursuant to Local Rule, we hereby wish to order a transcript of the proceedings. I do not know the identity of the official Court Reporter who presided at this trial. I am hereby requesting that this request be forwarded to the official Court Reporter. ...

Since I do not know if the court reporter was arranged through Judge Weiner, by whom this matter was referred to Your Honor, I am sending a copy of this letter to Judge Weiner’s chambers and am also requesting that his chambers submit this request to the appropriate court reporter.

Appellant’s Appendix at 28.

Neither the judge nor the magistrate forwarded the transcript request to the Court Reporter Coordinator or informed plaintiff’s attorney that they would not do so. Subsequently, Judge Weiner, although recognizing that “dismissal of plaintiffs motion may be a harsh sanction,” stated that “dismissal is mandated by the rule [20(e)]” and dismissed the motion for a new trial for lack of prosecution. Appellant’s App. at 23. The court stated it would reconsider its order if “plaintiff can demonstrate ... that he ordered the notes and paid the requested charges.” Id.

Plaintiff moved for reconsideration but was unable to show that the transcript had actually been ordered. The motion recited the above facts and stated that plaintiff received no request from Judge Weiner’s chambers or from the official court reporters to place a deposit for payment of the transcript. The district court adhered to its prior decision, stating:

Plaintiff cannot comply with Local Rule 20(e) by delivering a letter to the court requesting that the transcript be ordered and thereafter rely on the court to forward the request to the appropriate reporter. It is not the function of the courts to supervise requests for trial transcripts. Rule 20(e) specifically states the proper procedure for ordering a trial transcript_ As we noted in our Memorandum and Order of August 12, 1987, Rule 20(e), as the other Rules of Court, was promulgated to promote the efficient administration of the courts. Failure of an attorney to abide by this Rule, such as in the case subjudice, ... only causes an increase in time and effort on the part of the court.

Appellant’s App. at 32-33.²

In arguing that the district court abused its discretion, plaintiff contends that because in other situations the Federal Rules or statutes permit rerouting of misdirected papers, see, e.g., Fed.R.App.P. 4(a)(1); 28 U.S.C. § 1406 (1982), the sanction of dismissal here is totally inappropriate.” Appellant’s Brief at 10. The difficulty with appellant’s position is that Local Rule 20(e) does not provide for rerouting, as do the rules and statutes on which he relies, and instead provides for precisely the sanction imposed by the district court.

The district courts are authorized by 28 U.S.C. § 2071 (1982) to prescribe rules for the conduct of court business. “Such rules shall be consistent with Acts of Congress and rules of practice and procedure prescribed by the Supreme Court [i.e., the Federal Rules of Civil Procedure, see 28 U.S.C. § 2072 (1982)].” Id. Rulemaking by the district courts is regulated by Fed. R.Civ.P. 83. Pursuant thereto, local rules may be adopted or amended by a majority of a court’s judges, after public notice and the opportunity for comment. Copies of rules and amendments must be supplied to the circuit judicial council and the Administrative Office of the United States Courts, and be made available to the public.

There is no contention that Local Rule 20(e) was adopted without compliance with these procedural requirements, or, for that matter, that it is inconsistent with any act of Congress or the Federal Rules. Nor can the enabling statute or Federal Rule be challenged. It has long been recognized that “the constitutional provision for a federal court system (augmented by the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading in those courts,” Hanna v. Plumer, 880 U.S. 460, 472, 85 S.Ct. 1136, 1144, 14 L.Ed.2d 8 (1965); see Sibbach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 424-25, 85 L.Ed. 479 (1941), and that Congress “may exercise that power by delegating to ... federal courts authority to make rules not inconsistent with the statutes or Constitution of the United States,” id. (footnote omitted).

We have explained that local rules play “a vital role in the district courts’ efforts to manage themselves and their dockets.” Eash v. Riggins Trucking, Inc., 757 F.2d 557, 570 (3d Cir.1985) (quoting Flanders, Local Rules in Federal District Courts: Usurpation, Legislation, or Information, 14 Loyola L.A.L. Rev. 213, 263 (1981) (footnote omitted)). Local rules facilitate the implementation of court policy, both by setting norms and putting the local bar on notice of their existence. Local rules obviously serve to impose uniformity on practice within a district. In addition, they “may also alert rulemakers to the need for changes in national rules and supply an empirical basis for making such changes.” 757 F.2d at 570.

In Kushner v. Winterthur Swiss Insurance Co., 620 F.2d 404, 406-07 (1980), this court dismissed an appeal because the appendix did not conform to the requirements of the local rules of this court. Local Rule 20(e) is a comparable rule which is intended to ensure the efficient and timely provision of necessary papers. Judge Aldisert, writing for this court in Kushner, commented on the diversion from our substantive work occasioned when counsel fail to comply with our requirements. He stated: “The litigant ... who charges that the rules were not followed in the district court should himself follow the rules when he applies for relief in this court.” Id. at 407. If we insist on faithful adherence to our rules, we cannot fault a district court judge who applied the same approach.

Appellant argues that dismissal “is totally disproportionate to the conduct the court seeks to condemn,” Appellant’s Brief at 13. It may seem so if our focus remains fixed only on a well-intentioned attorney’s innocent mistake. We note, however, that the judges of the district court deliberately framed Rule 20(e) in mandatory terms. The judges could have promulgated a rule providing that upon failure to order a transcript, the post-trial motion “may” be dismissed; instead they chose to provide that in such circumstances “the post-trial motion must be dismissed.” Presumably the judges of that court determined that their time was better spent deciding cases than delivering letters, and that a hard and fast rule was necessary.³ In light of the importance of keeping proceedings after the verdict moving, we cannot say that the judges of the Eastern District of Pennsylvania had no discretion to conclude that they should and could expect the bar to be familiar with and follow a rule of the kind at issue here.

We recognize that in the same situation, the members of this panel or other district judges of the same district might have been more lenient and forwarded the request of the Court Reporter Coordinator or communicated with plaintiff’s counsel. We need not decide whether the rule gives the district judges such an option in the face of its explicit language mandating dismissal, because that is not the issue before us. This appeal presents only the question whether a district court can be reversed for following the local rule, even though the electronic recording may have presented extenuating circumstances. We cannot so hold.

Plaintiff’s counsel could have followed the clear instructions in the Rule and applied to the Court Reporter Coordinator. Had the electronic transcription raised some doubt as to the procedure, he could have sought the advice of the court’s clerk instead of delegating his responsibilities to a United States Magistrate and District Judge. It was hardly an abuse of discretion for the district court to have applied the terms of a valid local rule, even to an innocent party whose counsel made an honest mistake. Any other holding would undermine the power of the district courts to enforce their own local rules.

For the foregoing reasons, the district court’s order will be affirmed.⁴

1 . We are not clear under what authority this aspect of the case was referred to the magistrate. The record does not show the written consent forms required by Fed.R.Civ.P. 73(b) when a matter is referred for trial to a magistrate under 28 U.S.C. § 636(c). We are concerned that failure to comply with this requirement may signify precisely the type of persuasion or inducement by a district court that is prohibited by the statute and rule. Nonetheless, no party has raised this issue on appeal.

2 . As an independent basis for decision, the court noted that a failure to make necessary financial arrangements for a properly ordered transcript also constitutes ground for dismissal. App. at 33-34. Inasmuch as plaintiff never formally ordered the transcript, we need not reach any issue arising from his failure to pay for it.

3 . For that reason, this case is not governed by our holding in Poulis v. State Farm Fire & Casualty Co., 747 F.2d 863 (3d Cir.1984), and its progeny where we have outlined the factors to be considered by the district courts in exercising their discretion to dismiss a case as a sanction before trial on the merits.

4 . The appendix of the appellees attached to their brief is almost page for page duplicative of that previously filed by appellant. Federal Rule of Appellate Procedure 30(b) was amended in 1986 to require each circuit to provide by local rule for sanctions for the inclusion of unnecessary material in the appendix. This court thereafter adopted Court Rule 20(4), giving us discretion to deny all of the costs of the appeal when unnecessary material has been included. Using our discretion, we will file a rule directing the appellees to show cause why each party should not bear its own costs of this appeal.