United States Court of Appeals Second Circuit.: No. 194. Docket 25756
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Scribd Government DocsUnited States Court of Appeals Second Circuit.: No. 194. Docket 25756
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Scribd Government Docs276 F.
2d 581
Helen K. TUBMAN, as Administratrix of the Goods, Chattels
and Credits of Joseph M. Tubman, deceased, PlaintiffAppellant,
v.
OLYMPIA OIL CORP. and National Shipping and Trading
Company, Inc., Defendants-Appellees.
No. 194.
Docket 25756.
United States Court of Appeals Second Circuit.
Argued February 9, 1960.
Decided April 6, 1960.
Warren Small, New York City (Jacob Rassner, New York City, on the
brief), for plaintiff-appellant.
Thomas J. Short, New York City (Dougherty, Ryan & Mahoney, New
York City, on the brief), for defendants-appellees.
Before MOORE, Circuit Judge, and SMITH and HERLANDS, District
Judges.
MOORE, Circuit Judge.
Plaintiff appeals from an order denying a motion to vacate an order dismissing
plaintiff's case for failure to prosecute. The cronology is important. The
accident causing the death of the deceased occurred in 1953. A summons and
complaint were filed on October 27, 1955, the attorney of record being Jacob
Rassner. On February 4, 1958 an order was entered providing for dismissal for
failure to prosecute unless a note of issue for trial be filed within 60 days. The
time expired on April 7, 1958 and on May 27, 1958 an order of dismissal was
entered. The reasons now advanced for vacating this order are that the present
attorney, Warren Small, was retained "of counsel" on March 24, 1958 by Jacob
Rassner; that Small "realized at once that prolonged investigation in Baltimore,
Maryland, was necessary prior to filing a note of issue"; that he soon became ill
and was away from the office for several months; and that when he returned to
his office in June 1958 he learned of the dismissal order. Despite the alleged
necessity for further investigation and the knowledge of the dismissal the
attorney made no request for an extension of time on or after March 24, 1958
and did nothing for ten months after his return to seek relief because of his
illness. Nor can any claim be made by Small that he came into the picture for
the first time on March 24, 1958, because he was sufficiently familiar with the
case on September 19, 1957 while in the employ of Rassner to act as counsel in
the taking of the deposition of the plaintiff.
2
No reason has been advanced justifying any relief under Rule 60(b) of the
Federal Rules of Civil Procedure, 28 U.S. C.A. The order of dismissal was
properly granted as was the order refusing to vacate. The district court is
making intensive and commendable efforts for the benefit of the public in
general and the litigants in particular to expedite the trial of cases.1 If trials are
to be secured within a reasonable period from the date of the commencement of
the action the calendars should not be clogged with cases where no serious
effort is being made to prosecute them. The procedure adopted gives fair
warning of the consequences of inexcusable delay. Acceptable excuse has not
been presented here.
Affirmed.
Notes:
1
See "Disposition of Judicial Business" by Chief Judge Sylveter J. Ryan,
D.C.S.D.N.Y., 24 F.R.D. 373
