Geronymo v. Joseph Horne Co.
Geronymo v. Joseph Horne Co.
Opinion of the Court
MEMORANDUM OPINION AND ORDER
The matter before the court is the motion of plaintiff, pursuant to Rule 60 of the Federal Rules of Civil Procedure, for relief from judgment of dismissal entered on behalf of Joseph Horne Company on September 5, 1978. Judgment was entered for failure of plaintiff’s counsel to comply with orders of this court dated June 7, June 30
The sole question at bar is whether the affidavit of George Retos, Jr. complies with the “exceptional circumstances” requirement of Rule 60(b). The Rule authorizes relief from final judgment upon a showing of mistake, inadvertence, surprise or excusable neglect, or any other reason justifying relief from the operative effect of a judgment. Relief under the Rule is directed to the sound discretion of the district court. DiGregorio v. First Rediscount Corp., 506 F.2d 781, 788-89 (3d Cir. 1974). We are mindful that dismissal is unwarranted for noncompliance with discovery orders “when it has been established that failure to comply has been due to inability, and not willfulness, bad faith, or any fault of petitioner.” Societe Internationale Pour Participations Industrielles et Commerciales, S. A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255 (1958).
We begin our analysis with the observation that the affiant admits, for the first time, “inexperience in Federal Court cases.”
On the other hand, this court is loath to deprive the plaintiff of a trial on the merits without a showing of prejudice to the defendants in light of the affidavit of Attorney Retos. The Brotherhood of Painters makes no claim of prejudice. Joseph Horne contends that the death of Leo Mandel on May 2, 1978, establishes prejudice.
The deceased was employed by defendant as a foreman, and was “primarily responsible for determining which persons under his supervision would be laid off and recalled . . Moreover, Mr. Mandel was in a key position to evaluate plaintiff’s job performance with defendant.”
On June 7, 1978, the court ordered completion of discovery by August 1, 1978, and plaintiff was ordered to file a pretrial narrative statement on or before August 14, 1978. Even if plaintiff had complied with the order, the case would not have been tried prior to the death of the employee. Moreover, if Joseph Horne desired to depose this person, the conduct of plaintiff’s counsel did not impede this effort. We perceive no connection between the dilatory acts of counsel and the sole allegation of prejudice claimed by Joseph Horne.
As a result, relief will be granted for the following reasons: (1) the affidavit of plaintiff’s counsel establishes excusable neglect; (2) plaintiff has secured competent counsel to prosecute the claim; (3) plaintiff was not privy to the foibles of his attorney;
The relief which plaintiff seeks must, of course, be based upon certain reasonable conditions. Counsel for Joseph Horne was required to attend two oral arguments due to the failure to comply with orders of this court. The first argument on August 30, 1978 was aborted due to failure of plain
Plaintiff will be required to file with the Clerk verified answers to interrogatories and production of those documents previously ordered on or before October 11,1978. Plaintiff must then file a pretrial narrative statement on or before October 18, 1978. Defendants must file a pre-trial narrative statement on or before October 25, 1978. In the event the parties require additional discovery, the court will entertain an appropriate motion for extension of time to complete discovery.
. Rule 41(b) authorizes dismissal for failure to prosecute or comply with any order of court, and Rule 37(b)(2)(C) includes dismissal for non-compliance with discovery orders.
. Paragraph 8 of affidavit of George Retos, Jr.
. Memorandum of Joseph Horne Company, Inc. at 10.
. See DiGregorio v. First Rediscount Corp., 506 F.2d 781, 785 (3d Cir. 1974).
Reference
- Full Case Name
- Demetre GERONYMO v. JOSEPH HORNE COMPANY, INC., a Pennsylvania Corporation, and International Brotherhood of Painters and Allied Trades, Local No. 6, AFL-CIO
- Status
- Published