Stockton v. Consolidated Feldspar Corp.

1 F.R.D. 411, 1940 U.S. Dist. LEXIS 1978

Opinion

DARR, District Judge.

A motion is made to strike this case from the trial calendar on the ground that it was not commenced within the time to stand for trial during this term.

This suit was removed from a state court and the record filed in this court on August 23, 1940. The term of this court began on September 16, 1940.

The Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, do not provide for the time necessary to elapse between entry of a record in a suit removed from a state court and the trial term.

It is not contemplated that the Federal Rules of Civil Procedure would cover every point that might arise in procedure in the district courts. Rule 83 says: “Each district court by action of a majority of the judges thereof may from time to time make and amend rales governing its practice not inconsistent with these rales”.

While this rule appears to provide for the making of local rules in the future, I am of the opinion that the Federal Rules of Civil Procedure did not repeal or abrogate local rules not inconsistent with the general rules and in effect at the time of their passage.

Local Rule 5, Section 2, provides that a removed case shall stand for trial at the first stated term commencing sixty days from the entry of the record. I think this Rule is still in effect.

This being true, the motion is well taken and will be sustained.