Charles Hill v. W. Bruns & Co., 498 F.2d 565, 2d Cir. (1974)
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Scribd Government DocsCharles Hill v. W. Bruns & Co., 498 F.2d 565, 2d Cir. (1974)
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Scribd Government Docs498 F.
2d 565
Charles HILL, Appellant,
v.
W. BRUNS & CO., Appellee.
No. 786, Docket 73-1382.
United States Court of Appeals, Second Circuit.
Argued April 3, 1974.
Decided June 5, 1974.
Lester E. Fetell, Brooklyn, N.Y. (William F. Cioffi, Brooklyn, N.Y., Sergi
& Fetell, Brooklyn, N.Y., of counsel), for appellant.
William M. Kimball, New York City (Burlingham, Underwood & Lord,
New York City, of counsel), for appellee.
Before HAYS and OAKES, Crcuit Judges, and CHRISTENSEN, District
judge. *
OAKES, Circuit Judge:
Plaintiff-appellant's appeal is from the grant of a motion for summary judgment
by Judge Neaher on the ground of laches. In granting the summary judgment,
the judge treated the action as having been commenced, as technically it was,
on March 20, 1972. In doing so, however, he did not take into account a
previous action brought on this same cause against this same defendantappellee on May 15, 1970. In that earlier action a motion to dismiss on the
ground of laches was denied by Judge Zavatt; the action was voluntarily
dismissed-- without prejudice, however-- on the basis of defendant-appellee's
argument that service of process on an agent of appellee was of questionable
validity. In dismissing the second action, it is our view that Judge Neaher
should have taken into account the first, and accordingly we reverse.
Appellant, a longshoreman, was injured on January 5, 1967, aboard the M/S
Brunsholm at Pier 13, East River, New York.1 Appellant was employed by
Standard Fruit & Steamship Co. (Standard) and the Brunsholm was owned and
operated by W. Bruns & Co., the appellee. On the date of the alleged accident
the vessel was under charter from Bruns to Standard. The defendant's answer of
June 16, 1970, in the original action raised four affirmative defenses including
lack of personal jurisdiction over the defendant, 'insufficient' process, failure to
state a ground for relief and time bar by statute of limitations, laches or both. In
opposition to the motion, appellant urged that the unseaworthiness count was
governed by a six-year statute of limitations, the action having been
commenced some four months beyond the three-year negligence limitation. On
April 19, 1971, Judge Zavatt denied the motion to dismiss on the authority of
Larios v. Victory Carriers, Inc., 316 F.2d 63, 66-67 (2d Cir. 1936), on the basis
that the 'defendant has proffered no proof whatever as to his prejudice from the
delay (of four months).' Appellee later took appellant's deposition on August 5,
1971, at which time appellant's claim of negligence and unseaworthiness was
disclosed to relate to claimed defects in the Brunsholm's winches at Number 4
hatch and hatchboards in the Number 4 'tween deck. Immediately thereafter
appellee moved for an order granting leave to file a third party summons and
complaint upon appellant's employer, Standard, and to vacate the process
alleging that service on Standard as agent of appellee was improper.
3
At some point following a request by all counsel for reassignment to another
judge for trial, the case was transferred from Judge Zavatt to Judge Neaher for
pretrial conference, which was held on January 18, 1971. When the case was
ultimately called on for trial, it was, on appellant's motion, dismissed without
prejudice; apparently it had come to the attention of appellant's counsel that
Bruns did in fact have an agent other than Standard, Glaessel Shipping Corp.,
which had, on prior occasions, accepted service for it in New York.
Meanwhile, on March 20, 1972, appellant had filed a second complaint, that in
the current action, and served appellee on March 28 by serving its agent,
Glaessel Shipping Corp. Appellee again moved for summary judgment. In
connection with its motion for dismissal of the first action, appellee had
alleged, through the affidavit of Dr. C. G. Staelin, a partner of appellee, that 'As
confirmed by the absence of any such entry in the deck log book of M/S
Brunsholm under date of January 5, 1967, no actual or claimed injury in the
Port of New York on that date to longshoreman Charles Hill was ever brought
to the attention of that vessel's Master, Chief Officer or deck officers (mates).'
Dr. Staelin additionally alleged that neither the master, chief officer nor any of
the deck officers (mates) serving aboard the M/S Brunsholm in January, 1967,
were still serving aboard that vessel and that several of those persons were no
longer employed by W. Bruns & Co. In connection with the second action,
appellee submitted a supplementary affidavit of Dr. Staelin repeating all of the
allegations of the first affidavit but going on to say that, following appellant's
deposition in reference to the winches at Number 4 hatch and a hatchboard in
the Number 4 'tween deck, 'After thorough inquiry and search, we were
compelled to inform Messrs. Burlingham (appellee's attorneys) that W. Bruns
& Co. could not furnish the requested particulars because W. Bruns & Co. no
longer has any 1967 record of any repairs or maintenance to those winches or
any 1967 record of any repairs or replacements to those hatchboards.' Nothing
in either of these affidavits-- the only material brought before Judge Neaher by
appellee-- indicates in any way that appellee had kept records in 1967 or at any
other time (other than those entries that might have appeared in its deck log
book) of any repairs or maintenance to the winches at Number 4 hatch or at any
hatch, nor does anything appear in these affidavits or otherwise to indicate that
there were any 1967 records or any other record of any repairs or replacements
to hatchboards either at the Number 4 hatch or at any other hatch.
5
In dismissing appellant's second action as being barred by the lapse of time,
Judge Neaher held that in the absence of statute the voluntary dismissal or
discontinuance leaves the situation as if the suit had never been filed, Bunger v.
United States Blindstitch Machine Corp., 8 F.R.D. 362 (S.D.N.Y.1948),2 and
considered that the laches question was predented in the context of a suit
commenced more than two years after the applicable state statute of limitations
had expired. 'Thus,' Judge Neaher held, the 'plaintiff is required to persuade the
court anew that adequate excuse exists for what is now a five-year delay and
that no prejudice will result to the defendant.' The court then went on to hold
that no legally sufficient reason for delay appeared in the plaintiff's papers and
that the defendant's papers amply demonstrated the difficulties it would
encounter in attempting to defend itself against such a stale claim.
In an admiralty suit state statutes of limitations are not strictly applied; instead,
the doctrine of laches controls. Czaplicki v. The Hoegh Silvercloud, 351 U.S.
525, 533, 76 S.Ct. 946, 100 L.Ed. 1387 (1956); Larios v. Victory Carriers, Inc.,
316 F.2d at 65. The courts are not to resort to mechanical application of local
statutes of limitation in determining the issue of laches. See, e.g., Conty v.
States Marine Lines, Inc., 355 F.2d 26, 28 & n. 3 (2nd Cir. 1966); Oroz v.
American President Lines, 259 F.2d 636, 638 (2d Cir. 1958), cert. denied, 359
U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572 (1959). No presumption attaches from
the expiration of the applicable period of limitations. Larios v. Victory Carriers
Inc., 316 F.2d at 66. Accordingly, the 'peculiar equitable circumstances' of the
case are determinative, Czaplicki v. The Hoegh Silvercloud, 351 U.S. at 533,
and a court must examine the excuse for delay and prejudice to the defendant as
a result of the delay. Gardner v. Panama Railway Co., 342 U.S. 29, 31, 72 S.Ct.
12, 96 L.Ed. 31 (1951).
Appellee failed to show prejudice within the applicable period, and it had the
burden of adducing evidence on this issue. As we said in Larios v. Victory
Carriers, Inc., 316 F.2d at 66, to establish the defense of laches there must be
proof of 'prejudice on the part of the defendant, an issue as to which the
defendant, with his greater knowledge, ought be required to come forward.'
Certainly appellee possessed all the information relative to the possible
disappearance (or nonexistence) of evidence. Yet the only claim made in its
affidavits is that it might have had more evidence if it had received earlier
notice. Nowhere does it allege, however, that it actually kept records which
were lost as a result of the delay. To the contrary, the most that appellee says is
that some of its employees on the M/S Brunsholm were no longer employed by
it. As Judge Zavatt had held, this was insufficient for appellee to meet its
burden. Indeed where the appellee is the same, even though this is a subsequent
action, it could be argued that, absent something new in the way of allegations
of prejudice, Judge Zavatt's decision is controlling as, in effect, the law of the
case.
8
On the point urged that this was a new case, plaintiff-appellant could readily
have petitioned the court in the first action for leave to cause an additional or
new summons to be issued and good service attempted upon Bruns by way of
Glaessel Shipping as agent. See Grammenos v. Lemos, 457 F.2d 1067, 1071
(2d Cir. 1972). As this court there held, the 'fact of invalidity of the one attempt
at service does not automatically require dismissal of the complaint . . .. The
court has power, under Fed.R.Civ.P. 4(a), if the service is invalid or improper,
to cause additional or new summons to be issued and good service attempted.'
Having chosen an alternative procedural route, that is to say, the filing of a new
complaint and discontinuance of the old action, the appellant should not be
placed in the procedural posture as if he had never brought any action in the
first instance. See note 2 supra.
Laches is a doctrine aimed at avoiding the commencement of stale claims in
equity where it is impossible or difficult for a defendant to defend because
evidence has been destroyed or lost and the defendant thereby prejudiced as a
result of the delay in the institution of the action. E.g., Russell v. Todd, 309
U.S. 280, 287, 60 S.Ct. 527, 84 L.Ed. 754 (1940). Here, however, it would be a
simple pleading technicality, totally inconsistent with the doctrines of equity
and the spirit of the federal rules, if appellant were to have his right of action
nullified by virtue of the fact that he discontinued his first action against this
very same defendant and instituted a new one with proper service. We have
come a long way since the days of Baron Parke, who, it will be recalled, was
proud of the fact that he had decided all cases on procedural grounds; much less
do his doctrines apply in admiralty.
10
When we come to the nub of the question of prejudice, the only additional
evidence or claim presented by the appellee to Judge Neaher is in reference to
maintenance and repair records as to winches and hatchboards, but, as we have
said, it nowhere appears that these were destroyed after May or 1970. The
docket entries, indeed, indicate that, never having filed written interrogatories,
the appellee waited almost a year after the first action was brought to file a
notice of taking of appellant's deposition. It could well be that whatever records
were kept-- if any-- were destroyed after the first suit was brought. It could also
well be that the practice of the trade is to keep maintenance and repair records
of winches or hatches, if any are kept at all, for considerably longer than three
years because surely a limitation period might well be longer than the New
York statute now provides. In any event, the second affidavit we believe fails to
make out a case of prejudice in the second action. It is the date of the filing of
the first complaint which put the appellee on notice, not the date of the second
complaint. Appellee had notice within 135 days of the expiration of the
analogous three-year statute of limitations, and it cannot claim prejudice for
having let evidence slip away after that date. Many, many states have saving
statutes permitting new actions to be brought if an action fails other than on its
merits, assuming the same cause is involved, notwithstanding any intervening
expiration of a statute of limitations. E.g., N.Y.C.P.L.R. 205; 12 Vt.Stat.Ann.
558. These statutes recognize the basic equitable doctrine which we adopt for
purposes of admiralty law here, that the ultimate question is one of prejudice in
fact, governed by the time of notification of the existence of the cause of action
to the defendant and the plaintiff's prompt prosecution of same.
11
Here there is ample indication, as Judge Zavatt held in the first instance, that
there was no prejudice to the appellee from the 135-day delay from the time the
first action was instituted after the three-year statute had run. That is the only
time legally relevant here.
12
Judgment reversed and case remanded.
Senior United States District Judge for the District of Utah, sitting by
designation
As a longshoreman, plaintiff-appellant was and is to be treated as a seaman
under Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099
(1946). Under 33 U.S.C. 902, as amended by 86 Stat. 1251 (1972),
longshoremen are now limited to recovery under the Longshoremen's and
Harbor Worker's Compensation Act
The 'general' rule relied upon by the court below to negate the very existence of
Judge Zavatt's prior decision of the laches question was stated by this court in
A. B. Dick Co. v. Marr, 197 F.2d 498, 502 (2d Cir.), cert. denied, 344 U.S. 878,
73 S.Ct. 169, 97 L.Ed. 680 (1952), as follows: 'voluntary dismissal of a suit
leaves the situation so far as procedures therein are concerned the same as
though the suit had never been brought . . ..' We do not question the validity of
this rule as a general proposition, but it is of little force in the present action
where the district court, and this court in turn, must determine, as an equitable
matter, whether there is any reason that appellant's suit should not be allowed
to proceed. We need not decide whether the court below should have been
bound by Judge Zavatt's prior decision on the laches question because we find
appellee's affidavits submitted below to be insufficient to make out a case of
laches in any event
