L. P. Steuart, Inc. v. Joseph H. Matthews

329 F.2d 234

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 9, 1964
• Docket: 17504
• Status: Published

Opinions

EDGERTON, Senior Circuit Judge.

Appellee Matthews was injured on February 7, 1957, by a car driven by an employee of appellant L. P. Steuart, Inc. On February 5, 1960, two days before the statute of limitations would have barred his claim, Matthews filed suit. On October 19, 1960, the complaint was dismissed without prejudice, after notice to his then counsel, for failure to prosecute. Two years later, on October 22, 1962, the plaintiff by new counsel moved to reinstate the suit. The District Court granted the motion and the defendant appeals.

In support of appellee’s motion to reinstate, his former counsel made affidavit that he had been “beset with personal problems” which involved a serious illness of his wife and the recent deaths of his parents. Appellee made affidavit that he and others in his behalf made “numerous inquiries of” his former counsel who “refused to answer such inquiries”' and assured appellee “from time to time” that “the case was proceeding and that settlement of it would be made ‘soon’.”' There is no suggestion that there was; any foundation for counsel’s reassuring statements. In March, 1962, appellee learned, but only by personally checking with the Clerk of the District Court, that his case had been dismissed for failure to prosecute. His former counsel then told him “that steps would be taken to reinstate the case” but took no action, and again refused to answer inquiries.

Rule 60(b) of the Federal Rules of Civil Procedure provides: “On motion and upon such terms as are just, the court may relieve a party * * * from a final judgment, order or proceeding for * * (1) mistake, inadvertence, surprise, or excusable neglect * * * or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time,, and for reasons (1), (2) and (3) not more than one year after the judgment, order or proceeding was entered or taken.”

Appellant says appellee’s motion to reinstate was barred by the one-year time limit in clause (1) concerning excusable neglect. But the District Court did not act on the theory of excusable neglect. On the contrary, it expressly applied the “‘catch-all’ rule” 60(b) (6). Counsel’s neglect was not excusable and the court, by clear implication, so found. The judge said he felt “that in this particular case the client, plaintiff, a person unfamiliar with court procedures, should not be penalized by the action of his counsel, who admittedly did not attend to the matter when he received notice of the contemplated dismissal.” On the part of Matthews himself there was no neglect. Cf. United States v. Karahalias, 205 F.2d 331, on rehearing 334 (2d Cir. 1953). Clause (1) of Rule 60(b) is not and clause (6) is broad enough to permit relief when as in this case personal problems of counsel cause him grossly to neglect a diligent client’s case and mislead the client. Clause (6) “vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.” Klap-prott v. United States, 335 U.S. 601, 614— 615, 69 S.Ct. 384, 93 L.Ed. 266 (1949). In re Estate of Cremidas, 14 F.R.D. 15 (D.Alaska 1953). In concluding that reinstatement was appropriate to accomplish justice in this case, the District Court did not abuse its discretion.

Affirmed.