John Gamble v. Pope & Talbot, Inc. v. Jarka Corp. Of Philadelphia. Appeal of Timothy J. Mahoney , 307 F.2d 729 ( 1962 )

McLAUGHLIN, Circuit Judge.

On April 24,1958, John Gamble, a longshoreman, commenced a personal injuries action in the United States District Court for the Eastern District of Pennsylvania against Pope & Talbot, Inc., a shipowner. On September 22, 1959, the latter with leave of court impleaded Jarka Corp. of Philadelphia, the stevedoring company which had employed Gamble. The case was tried in March of 1961 resulting in verdicts in favor of Gamble against Pope & Talbot with indemnity in favor of the latter against Jarka Corp. The merits of the litigation are not before us. Our problem is solely concerned with pretrial procedure.

In effect in the United States District Court for the Eastern District of Pennsylvania are two “standing orders” which provide as follows:

“Pre-Trial Conferences in Other Than Protracted Cases

“(Adopted October 23, 1958)

“1. The Clerk of the Court shall list for pre-trial all civil cases which have been answered for trial on the Jury and Non-Jury Preliminary Call lists. The filing of a pre-trial memorandum by all counsel is mandatory. * * *

* «• * * * -»

“3. * * * Not later than 30 days after the publishing of said [civil pre-trial] list, counsel for plaintiff shall file a written pre-trial memorandum with the Clerk of the Court and serve two copies on all other counsel of record.

“Within 30 days of receipt of such pre-trial memorandum, all counsel served with plaintiff’s memorandum shall file a written pre-trial memorandum with the Clerk of the Court and serve two copies on all other counsel of record. * * *

“Plaintiff’s pre-trial memorandum shall contain the following:

ft *>r ft 'X* ft vf

“C. The names and addresses of all witnesses (except rebuttal) whom the plaintiff expects to call to testify at the time of trial. * * *

* * * -X- * *

“Defendant’s counsel shall also include in his pre-trial memorandum the same material pertaining to defendant’s case as required of plaintiff in paragraphs C, * * *.

“Imposition op Sanctions With Respect to Pre-Trial Procedures

“(Adopted February 8, 1960)

“For failure to appear at a pretrial conference, or to participate therein, or to prepare therefor, the Court, in its discretion, may make such order with respect to the imposition of fines, costs and counsel fees, as is just and proper; with respect to the continued prosecution of the cause (complaint, cross-claim or counterclaim), a dismissal may be entered, or as to the defense, the preclusion of all or any part thereof, as is likewise just and proper.”

In compliance with the October 23rd standing order, counsel for the plaintiff and third-party defendant filed their pretrial memoranda with the court and served their adversaries with the required copies. The defense memorandum was not filed until the day before the pretrial conference. It was more than ten months overdue. There is no question but that counsel’s lapse was unintentional. After receiving regular notice from the court clerk of the pending pretrial conference, he reviewed his file, caught the omission, and then proceeded to prepare a full memorandum.

On December 8,1960, leave having been granted at the pretrial conference, counsel for the plaintiff filed a written motion to have the court strike the untimely memorandum. Thereafter the court filed a memorandum opinion and order denying the motion as too drastic in the circumstances but, in view of the long though unintentional delay, (1) struck the names of certain proposed witnesses appearing on the memorandum thereby precluding the defendant from calling them as witnesses at the trial; (2) imposed upon the defendant’s counsel “a fine of one hundred dollars” payable to the United States; and (3) permitted the plaintiff to “submit within thirty days an appropriate order imposing upon defendant all costs, expenses and reasonable counsel fees caused by defendant’s delay in filing its pre-trial memorandum.” The trial was held with the results as stated.

Viewing the imposition of the fine upon him as carrying “the criminal hallmark”, defendant’s counsel filed a notice of appeal in compliance with the Federal Rules of Criminal Procedure (and thus well within the time requirement of the Federal Rules of Civil Procedure). He captioned the appeal in the original cause and did not name an appellee. At his request, the clerk of the court served a copy of the notice of appeal upon the United States Attorney. The latter has neither appeared nor filed a brief. Leave was granted John J. Dautrich, Esq. to appear as amicus curiae in opposition to appellant’s position.

The issue is whether the district court has the power to fine counsel for a party engaged in private civil litigation for not complying with the “standing orders” of the court. Appellant does not here question the district court’s action in striking the names of the proposed trial witnesses contained in the memorandum. It is also noted that plaintiff has not submitted a proposed order covering financial remuneration for defendant’s delay.

The district court justified the imposition of the fine by saying that:

“In view of the time of judicial employees of the Government wasted as a result of the late filing of this memorandum, a fine shall be paid by counsel for the defendant to the United States of America (see Standing Order of February 8, 1960). Such a fine will be more substantial in subsequent cases of such long delay in filing a pre-trial memorandum, but the fact that this is the first time in the experience of the pre-trial judge that a fine has been required is being taken into consideration in this case. Also, it is suggested to opposing counsel that, in the future, their adversary should be reminded of his delinquency if defaults and other remedies are to be sought for its long continuance.”

Appellant’s contention is that the district court has not been given authority and possesses no inherent power to fine an attorney who has not been held in contempt nor given a hearing. We must agree.

The trial judge did not regard the attorney’s default as constituting contempt of the court; he did regard it as falling within the sanction of the standing order. The contempt designation was nowhere used in the order appealed from or in the standing order. There were no formal contempt proceedings. Appellant suggests that the court’s action in fining him “had to be contempt or it was nothing.” Amicus urges that it was “ * * * simply * * * an exercise of disciplinary authority, with no necessary criminal connotation.” He further asserts that “ * * * it certainly may not be assumed that Congress intended * * * [by the contempt statute, 18 U.S.C.A. § 401, 62 Stat. 701] to destroy or limit the separate and distinct power of courts to discipline their attorneys in matters not constituting contempts.”

However it be called the effect was to punish defendant’s attorney for contempt in failing to file the defense pretrial memorandum within time. Amicus does not point to and we cannot find any authority for it. There is nothing in the Federal Rules which authorizes sanctions in the form of penalties to be imposed upon an attorney in a civil litigation.¹ To impose such a penalty for conduct not found to be contemptuous and without the procedural safeguards given by Rule 42 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. violates the Fifth Amendment.

Amicus next contends that even if the Federal Rules do not give explicit authority to the district court, Rule 83 of the Federal Rules of Civil Procedure, 28 U.S. C.A., authorizing the district court “to make and amend rules governing its practice not inconsistent with these rules * * * ” is an appropriate source of power. With an admiralty cause involved here both Rule 83 and its admiralty counterpart, Admiralty Rule 44, 28 U.S.C.A., are applicable. Although they are an “affirmative grant of authority”, see Miner v. Atlass, 363 U.S. 641, 647, 80 S.Ct. 1300, 4 L.Ed.2d 1462 (1960); cf. United States v. Hvass, 355 U.S. 570, 575, 78 S.Ct. 501, 2 L.Ed.2d 496 (1958), still the local rule making power, while not limited to the trivial, cannot extend to basic disciplinary innovations requiring a uniform approach. Whether an attorney should be himself fined when, because of office oversight or neglect, he is late in complying with an order of the coux*t is a substantial independent question which calls for mature consideration by the body charged with making Rule recommendations, the Supreme Court’s advisory committee. See 28 U.S.C.A. § 331; Miner v. Atlass, supra, 363 U.S. at 649-650, 80 S.Ct. at 1305-1306.

Absent authority, the district court’s power to penalize appellant is limited by the contempt statute, 18 U.S.C.A. § 401, and by Rule 42 of the Federal Rules of Criminal Procedure. Section 401 permits the district court to impose fines only for specified conduct enumerated therein. If the conduct does not fall within the statute, it has no such power. That problem does not arise in this appeal as there is no indication that the contempt statute was being invoked, and Rule 42 was not followed.

We stress that this is an ordinary pretrial procedure case. It is not a cause célebre. It should be kept headed into the wind. It furnishes no need or reasonable excuse for some collateral defense of pretrial practice. The latter has long since been generally accepted by both courts, fedex-al and state, and attorneys. The Eastern District of Pennsylvania, one of the largest (in volume) and busiest in the nation, has been a leader in establishing work-a-day pretrial methods that, despite woeful lack of judge power through the years, have been of most material assistance in properly handling an enormous trial list. This would not have been possible without the devoted, constant, expert use of them by all of the judges in the district. And the smooth, satisfactory operation of the system would not have been possible without the sincere cooperation of the bar. Both court and counsel recognize that pretrial is an integral, necessary element of litigation. It is doubted that anyone affected would now willingly revert to the litigation practice as it was prior to the adoption of today’s methods.

On occasion there is a slip up. Almost always it is no more than that, as in the involved instance. Usually it occurs where a date is not entered, or perhaps not carried over, or is erroneously noted; sometimes where a paper or letter is filed prematurely and forgotten until some independent reminder brings it to light. Judges are not customarily plagued with that sort of incident themselves though it has taken place with them too. Lawyers are not so fortunate. When it happens, they are embarrassed and troubled. In good faith they do what can be done to make amends. As long as a lawyer practices, once in a great while, he will be haunted by the thought that he missed a filing date. His primary distress is not over punishment but that he has neglected a duty. No matter what might be the office situation, the responsibility is his and he assumes it.

Judges know this. While they rightly demand and receive full compliance, they are mostly patient and understanding. In instances when their judgment is that affirmative action should be had in a particular set of circumstances, it is taken. Ordinarily there is nothing personal about it. In the ease at bar it was the delay that was being punished, irrespective of its cause. The means employed were beyond the power of the court but the incident did serve to point up the importance of counsel meticulously observing pretrial filing date obligations. In so doing it fulfilled the commendable purpose of the trial judge, i. e., to vividly bring to the attention of the entire Eastern District bar that substantial negligence in pretrial practice will not be tolerated. But that commendable pux-pose with its innocent but palpably erroneous assumption of dictatorial powers over litigation, lawyers and litigants, should not now be seized upon as an opportunity to further the questionable cause of reducing lawyers in a courtroom or within its x-each to puppets, completely subject to the whim and warp of the courts.

We are not dealing with the caponizing of a judge. It is not his independence that is being protected by the minority view. What the latter is doing is supporting the tactic of informally inflicting a criminal sanction without charges or hearing; where there was no “actual obstruction of justice” ² and where counsel belatedly remedied but nevertheless remedied his unfortunate negligence and where the plaintiff’s cause was not harmed. What the minority view really attacks is our “vigorous, independent bar”.³ What it really advocates is the complete take over of the trial and its collaterals by the trial judge and appellate courts. It is good to have this out in the open where it can be squarely faced. The effort to concentrate all that frightening power in the bench is too dangerous a potential to let slip by clothed in such disarming language as “simply * * * an exercise in disciplinary authority, with no necessary criminal connotation”. All that “exercise” happens to be is the first giant step in stripping a lawyer of his independence and leaving him, his client and the latter’s cause of action to the ukase of the court. Even Jack Cade’s solution would have left the lawyer his self-respect.

That the trial court’s act should be urged as justified by some sort of judge-made law makes it doubly abhorrent. Kept within its proper bounds the district court decision is merely a mistake, to be corrected in stride. Given the motivation attributed by the minority to the principle involved, it is an ominous doctrine that should be buried deep and forgotten.

Paragraph (2) of the order of the district court of February 23,1961, which is the only part of said order from which appeal has been taken, will be reversed. The case will be remanded with instructions that judgment be entered in favor of appellant (counsel for the defendant) on paragraph (2) of said order.

HASTIE, Circuit Judge (concurring in result).

I agree that the court below, although acting with the best intention, has exceeded its power by imposing a criminal sanction without legislative authority for conduct which did not amount to contempt of court. Accordingly, I concur in the reversal of the challenged part of the order of the district court. However, the principal opinion includes references to the contrary position in which I do not join.

Judge KALODNER joins in the foregoing.

1 . 28 U.S.C.A. § 1927 provides that “Any attorney * * * in any court of the United States * * * who so multiplies the proceedings in any case as to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs.” This section is applicable only when excess costs are shown to exist. The costs are not payable to the United States as a fine, but may be payable to the United States as a party litigant whose costs were increased by virtue of the attorney’s conduct. See Weiss v. United States, 227 F.2d 72 (2 Cir. 1955), cert. den. 350 U.S. 936, 76 S.Ct. 308, 100 L.Ed. 817 (1956); Motion Picture Patents Co. v. Steiner, 201 F. 63 (2 Cir. 1912). While the district court points out that the time of judicial employees was “wasted” by appellant’s oversight, this is of no moment in determining costs under this section.

2 . In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962).

3 . In re McConnell, 370 U.S. 230, 82 S.Ct. 1288 (1962).