Drayton v. Toler , 193 F. Supp. 513 ( 1960 )

WELSH, Senior District Judge.

Plaintiff, Gladys Drayton, brought an action in the Court of Common Pleas No. 5 of Philadelphia County as of December Term, 1956, to recover damages for personal injuries sustained in a collision between a motor vehicle driven by William Madison, in which plaintiff was a passenger and a mail truck driven by James B. Toler, a mail carrier for the United States Post Office Department. In said action, she named as defendants (1) William Madison, (2) his employer, General Refrigerators and Store Fixture Company, and (3) James B. Toler. Although the United States was not joined as a defendant the United States Attorney is representing the postal employee.

On May 13, 1958, upon petition of the defendant, James B. Toler, plaintiff’s case against said defendant was removed to this Court, the United States District Court for the Eastern District of Pennsylvania pursuant to the provisions of 28 U.S.C.A. § 1442(a) (l).¹ On the same day, an answer to the complaint was filed by the United States Attorney on behalf of the defendant, the postal employee.

On May 16, 1960, the Clerk of Court pursuant to Local Rule 18 of this Court sent the following letter to plaintiff’s counsel:

“The record in the above case indicates that no proceeding has been docketed therein for a period of more than two consecutive years. Unless the Court, upon written application filed within thirty days from the receipt of this notice, shall otherwise order the action will be dismissed.

“In the absence of such application to or order by the Court the Clerk will, in accordance with the local civil rules of this court, enter upon the record ‘dismissed, without prejudice under Rule 18’ and upon application by defendant will tax the costs against the plaintiff (s).”

Within the 30 days allowed, plaintiff’s counsel, seeking to nullify the notice sent to him by the Clerk of Court, filed the present petition to place this case on the trial list. To be entitled to such relief Local Rule 18 requires that he show “good cause”. The “good cause” alleged here is counsel’s mistake in believing that this case had already been placed on the trial list.

In view of the history of this case we consider this mistake excusable, and, therefore, hold that “good cause” has been established.

Plaintiff’s petition to place this case on the trial list will accordingly be granted.

And now, this 22nd day of November, 1960, in accordance with the foregoing opinion, it is ordered that the above-captioned case be and the same is hereby placed on the trial list.

1 . § 1442 provides: “(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may he removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

“(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.”