Susie Ann Graham v. The Pennsylvania Railroad and the Washington Terminal Company

342 F.2d 914

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 3, 1965
• Docket: 18637
• Status: Published

Opinions

PER CURIAM:

This action in tort was pending on July 1, 1963, when certain amendments to Rule 25(a) (1) of the Federal Rules of Civil Procedure became effective. The effect of these changes was to require, as to a deceased party, dismissal of an action unless a motion for substitution is filed within 90 days after a suggestion of death is made upon the record. In this case, plaintiffs’ counsel were advised on or about July 23, 1963, that plaintiff David Graham had died on May 17, 1963. Plaintiffs’ counsel thereupon filed a formal suggestion of such death in the District Court on July 24, 1963. On February 3, 1964 — somewhat in excess of six months later — counsel filed a motion to substitute appellant admin-istratrix (known by such counsel on July 30, 1963 to have been appointed) for the deceased plaintiff. Defendants, on February 7, 1964, filed an-opposition to the motion and a motion to dismiss, founded upon the lack of timeliness under Rule 25(a) (1). A few days later appellant moved under Rule 6(b) to en-. large the time period fixed in Rule 25(a) (1). After a hearing on March 17, 1964, the District Court denied appellant’s motions and dismissed the complaint.

In the view we take of the case, we address ourselves only to the issue of whether the District Court abused its discretion under Rule 6(b) in failing to enlarge the 90-day period. That this power to enlarge is committed to the court’s discretion “for cause shown” is explicit in the language of the Rule itself and in the Advisory Committee’s note to it. In the papers constituting the record before the District Judge, the only “cause shown” as excusing the neglect is the statement in the Points and Authorities supporting the motion to enlarge that “counsel frankly was unaware of the change due to his rules service not being up to date”; and that “Since July 30, 1963, counsel has been engaged in the preparation of seven appellate cases in the U. S. Court of Appeals, and D. C. Appeals, in addition to preparation for trial of an extensive Federal Tort Claims Act case, and other cases.” We cannot say that, on this showing, the District Court abused its discretion to a degree warranting corrective intervention by us.

In oral argument before us, we were strongly urged to reverse the District Court for the reason that lawyers should be given time to become aware of rule changes.¹ But it is not as if no such time had been provided. The amendments which became effective in 1963 were widely circulated in 1961. They were adopted by the Supreme Court on January 21, 1963, to become effective the following July 1. In that interim they were published in the official reports, and discussed in the treatises and legal periodicals. We think the Supreme Court expected lawyers with any serious pretensions to practice in the federal courts to become familiar with rule changes on or shortly after their effective date. That expectation was not, under the circumstances, irrational or arbitrary in the large, and we do not reverse the District Court for its recognition of it in this particular instance.

Affirmed.

1 . The availability, asserted in the dissent, of Rule 86(e) for appellant’s relief stands sharply in contrast to her failure to rely upon it, either in the District Court or in her brief on appeal. The claim that it should provide the basis for reversal was first advanced in oral argument before us. In any event, we would have thought, as perhaps counsel initially did also, that Rule 86(e) is addressed to those many unanticipated exigencies in respect of which the Supreme Court has not elsewhere in the Rules, fashioned specific measures of relief, with explicit standards for their application. In the case of a failure to observe the 90-day time limit in Rule 25(a) (1), the District Court, in Rule 6(b), is given a discretion to afford relief upon a showing of excusable neglect. As its date indicates, New Orleans Pub. Belt R. R. v. Wallace, 173 F.2d 145 (5th Cir. 1949), did not involve the particular Rules with which we are concerned here, nor did it present a situation in respect of which a precise avenue of escape had been provided elsewhere in the Rules.