# Appendix — Alvestad v. Monsanto Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0841%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1982 - **Citation:** 459 U.S. 1070 ## Text IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, ET AL $ : Plaintiffs : 3 vs. : CIVIL ACTION NO. : H-79-1883 MONSANTO COMPANY, : ET AL, : ‘ Defendants ; MEMORANDUM AND ORDER: This action was filed by Plaintiff, a Norwegian national and personal represen- tative of the deceased, for monetary damages due to the death of Aage Lasse Alvestad. It is alleged that decedent was working off the Borgny Dolphin, a semi-submersible drilling rig, in the English sector of the North Sea and that his death was due to the negligence of Defendants and unseaworthiness of the rig. Recovery is sought pursuant to the Jones Act, 46 U.S.C.A. 688, Death on the High Seas Act, 46 U.S.C.A. 761 et seg., and general maritime law. Currently pending before the Court is Defendants’ motion to dismiss based on limitations, and the un- availability of American law and the appli- cability of Norwegian and English law. Although the death occurred on the high seas, the Death on the High Seas Act ("DOHSA") is inapplicable since the suit was instituted after the statute's two-year limitation period expirea.? 46 U.S.C. 763; Hassan v. A. M. Landry & Son, Inc., 321 F.2d 570, 571 (5th Cir. 1963). Furthermore, since DOHSA provides the “exclusive” remedy for death on the high seas, Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71, 75 (5th Cir. 1980), Plaintiff's remedy under general maritime law is also foreclosed. Id; Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 (1978); Ivy v. Security Barge Lines, Inc., 585 F.2d 732 (Sth Cir. 1978), reh. en banc, 606 F.2d 524 (5th Cir. 1979). */ the suit was originally instituted on January 31, 1978, more than two years after the alleged wrongful death on March 22, 1975. «Qe With respect to the Jones Act claim (applicable to the death of a seaman on the high seas. Ivy, supra at 528), as well as the general maritime and death on the high seas 2 pee assuming for the sake of argument that the DOHSA claim was timely filed, chcice of law considerations2/ point to the application of foreign law, not American law, in view of the substantial contacts with Norway and England. "The broad principles of choice of law established for Jones Act cases in Lauritzen v. Larsen, 345 U.S. 571 (1953), were declared equally applicable to cases arising under the general maritime law in Romero v. International Operating Co., 358 U.S. 354, 381-4 (1959), and have been applied to suits brought under the Death on the High Seas Act. Symonette 27 the seven well-known factors of Lauritzen are: (1) Place of the wrongful act, Law of the Flag, (3) Allegiance or Domi- cile of the Injured, (4) Allegiance of the Defendant Shipowner, (5) Place of Contract, (6) Inaccessibility of Foreign Forum, and (7) The Law of the Forum. An eighth factor added to the list in Hellenic Lines v. Rhoditis, 398 U.S. 306 (1970), is e of operations. -3- Shipyards Ltd. v. Clark, 365 F.2d 464 (5th Cir. 1966)." Fitzgerald v. Texaco, 521 F.2d 448, 454 (2nd Cir. 1975), cert. denied, 423 U.S. 1052 (1976). Also see Ying Shive Jyu Fen v. Sanko Kisen (USA) Corp., 441 F.Supp. 45 (S.D. N.¥. 1977). Additionally, in view of the fact that dismissal of the foregoing has been explained not only in terms of lack of subject matter jurisdiction (particularly with respect to a Jones Act count) but in terms of forum non convenience (particularly with respect to general maritime and Death on the High Seas counts), or both, see Gilmore & Black, The Law of Admiralty, 481- 482, 294 (2nd ed. 1975); Ying Shive Jyu Fen v. Sanka Kisen (USA) Corp., supra, an appli- cation of the factors in the landmark forum non convenience case of Gulf Oil Corp. v. Gilbert>/, 330 U.S. 501 (1947), is necessary / "Important considerations are the rela- tive ease of access to sources of proof; availability of ulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, -4- and compels this court to alternatively decline jurisdiction. See Frangiskatos v. Kon Kar Maritime Enterprises, 471 F.2d 714 (2nd Cir. 1972). For the foregoing reasons this action is DISMISSED. Done at Houston, Texas, this 20th day of August, 1980. SIGNED: /NORMAN W. BLACK UNITED STATES DISTRICT JUDGE 37 (continued) if view would be appropriate to the action; and all other practical problems that made trial of a case easy, expedi- tious, and inexpensive.” 330 U.S. at 508. -S- APPENDIX 1A IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, ET AL : $ $ Plaintiffs, : $ vs. ; CIVIL ACTION NO. MONSANTO COMPANY, ; 8-79-1883 ET AL, : : Defendants : FINAL JUDGMENT From a consideration of the pleadings and materials submitted in this cause, it is the opinion of this Court that this action should be and is hereby dismissed. This is a FINAL JUDGMENT. Costs will be awarded to the prevailing party. Done at Houston, Texas, this 20th day of August, 1980. SIGNED: NORMAN W. BLACK UNITED STATES DISTRICT JUDGE IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, ET AL, $ : $ Plaintiffs, : $ vs. : CIVIL ACTION NO. : H-79-1883 MONSANTO COMPANY, : ET AL, : 3 Defendants : | ORDER Appearances: None Counsel Representing Motion (s) : ' Conference Hearing Plaintiff's Motion to Neither Reconsider Plaintiff filed this action originally on January 31, 1978. On August 20, 1980, the Court dismissed the complaint based upon limitations, lack of subject matter jurisdiction, and forum non convenience. At a conference on September 18, 1980, although Plaintiff argued that he needed lq | (a | ae > A more time for discovery, his main argument was with fifth Circuit precedent. Additional discovery would not aid Plaintiff in this matter. Plaintiff's argu- ment is legal, not factual, and this Court is not in a position to change Fifth Circuit law. Accordingly, Plaintiff's Motion to Reconsider is DENIED. SIGNED/ NORMAN W. BLACK UNITED STATES DISTRICT JUDGE Date Order Entered: 9/22/80 ack APPENDIX 3 MRS. AAGE LASSE : ALVESTAD, ET AL : : vs. : CIVIL ACTION NO. - : H-79-1883 MONSANTO COMPANY, $ ET AL : ORDER Appearances: None Counsel Representing Motion(s): Plaintiff's Conference second motion for relief Hearing from judgment Neither x Since Plaintiff has filed a proper notice of appeal from the Court's Order of Dismissal, this Court is without jurisdiction to consider Plaintiff's repetitious motion. Kirtland v. J. Ray McDermott & Co., 568 F.2d 1166, 1170 (Sth Cir. 1978); United States v. Dunbar, 611 F.2d 985, 987 (5th Cir. 1980); 9 Moore’ Federal Practice, Paragraph 203.11 at 3-48. Date Order Entered: SIGNED/NORMAN W. BLACK 16, 19 UNITED STATES DISTRICT JUDGE oi! ae APPENDIX 4 (Prom 671 Federal Reporter, 2d Series): Mrs. Aage Lasse ALVESTAD, Individually and as Representative of the Estate of Aage Lasse Alvestad and Their Minor Daughter, Plaintiff-Appellant, v. MONSANTO COMPANY, et al, Defendants~-Appellees Nos. 80-2157, 81-2015 United States Court of Appeals, Fifth Circuit April 1, 1982 Appeal was taken from judgment of the United States District Court for the Southern District of Texas, at Houston, Norman W. Black, Jr., dismissing action arising from death of diver working off a semi-submersible oil rig in the North Sea and from order of the district court denying motion for reconsideration. The Court of Appeals, Jerre S. Williams, Circuit Judge, held that: (1) no unique circumstances were shown justifying relief from timeliness of requirement of rule requiring that notice of appeal be filed within 30 days after entry of judgment or order appealed from, in case in which motion for new trial was not timely filed, where trial court had not assured appellant that her motion for new trial was timely or that court was extending time for filing notice of appeal, but at most acknow- ledged approaching deadline and indicated that it would try to accommodate appellant with speedy disposition of her motion, and (2) district court did not abuse its dis- cretion in denying motion to reconsider, under rule governing relief from judgment, alleging only that the court had mistakenly interpreted the law. Affirmed. **Due to his death on December 22, 1981, Judge Ainsworth did not participate in. this decision. The petition for rehearing is being decided by a quorum. 28 U.S.C. Section 46(d). 1. Federal Courts ... 668 District court's mere willingness to entertain tardy motion for new trial does not relieve prospective appellant from responsibility for filing timely notice of appeal. Fed.Rules. Civ.Proc. é Rule 4, 28 U.S.C.A. . -2- ryt t Sg Te SEs aoe! | ete G 2. Federal Courts . . . 670 No unique circumstances were shown justifying relief from timeliness of require- ment of rule requiring that notice of appeal be filed within 30 days after entry of judg- ment or order appealed from, in case in which motion for new trial was not timely filed, where trial court had not assured appellant that her motion for new trial was timely or that court was extending time for filing notice of appeal, but at most acknow- ledged approaching deadline and indicated thatit would try to accommodate appellant with speedy disposition of her motion. F.R. A.P. Rule 4(a)(1, 4, 5) 28 U.S.C.A.; Fed. Rules Civ. Proc. Rules 59, 59(b), 60(b), 28 U.S.C.A. 3. Federal Courts ... 825 Review of district court's action deny- ing motion to reconsider under rule relating to relief from judgment was confined to whether denial of motion constituted an abuse of discretion. Fed.Rules Civ.Proc. 4. Federal Civil Procedure . .. 2656 Rule governing relief from judgment is not an appropriate avenue for relief from the trial court's mistakes of law. Fea. Rules Civ.Proc. Rule 60(b), 28 U.S.C.A. 5. Federal Civil Procedure ... 2656 District court did not abuse its dis- cretion in denying motion to reconsider, under rule governing relief from judgment alleging only that the court had mistakenly interpreted the law. Fed.Rules Civ.Proc. Rule 60(b), 28 U.S.C.A. Law Offices of Benton Musslewhite, Inc., Benton Musslewhite, Houston, Texas, Louis R. Koerner, Jr., New Orleans, La., for plaintiff-appellant. Vinson & Elkins, Steven K. DeWolf, Houston, Texas, for Monsanto Co. Baker & Botts, Randy McClanahan, Houston Tex., for Monsanto Oil, Dolphin Inter., Inc. ’ S.A. Appeals from the Writed States: District Court for the Southern District of Texas. Before THORNBERRY, TATE and WILLIAMS, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge: -4- Aage Lasse Alvestad, a citizen of Norway, was killed on March 22, 1975, while working as a diver off the semisubmersible oil rig Borgney Dolphin in the North Sea. The Borgney Dolphin was a Norwegian vessel operating under a contract with Monsanto Oil Company of the United Kingdom, Inc. (Monsanto UK), a wholly-owned subsidiary of the United States-based Monsanto Company. The 3X Diving Company, Alvestad's immediate employer, had contracted with Monsanto UK to provide diving services for the drilling operation. Alvestad's widow filed suit against Monsanto and Monsanto UK in 1978, stating causes of action under the Jones Act, 46 U.S.C. 688, the Death on the High Seas Act (DOHSA), 46 U.S.C. 761-767, general maritime law, and the Texas Wongful Death. and Survival statutes, Tex.Rev.Civ.Stat.Ann. arts. 4671-4678, 5525 (Vernon 1940 & Supp. 1980-1981). On August 20, 1980, the district court granted Monsanto's motion to dismiss -5- the action and entered a final judgment to that effect. In a Memcrandum and Order filed with the judgment, the court ex- plained that DOHSA's two-year statute of limitations had expired prior to institution of the suit, thereby barring any recovery under that statute. It further found any action pursuant to general maritime law foreclosed because DOHSA is the exclusive remedy for death on the high seas (citing Hlodan v. Ohio Barge Line, Inc., 611 F.2d 71, 75 (5th Cir. 1980). The court also found it necessary to decline jv.isdiction regardless of the limitations problem be- cause the lack of sufficient contacts be- tween the action and this country indicated that foreign rather than American law should apply and that a federal district court would be a forum non conveniens. It is only with the entry of final judg- ment against Mrs. Alvestad on August 20, how- ever, that the critical period of this ate procedural history begins. On September 10, 1980, Mrs. Alvestad filed a "Motion to Reconsider Order Dismissing Cause of Action and Motion to Reinstate and Motion to Grant a New Trial Pursuant to Rules 59 and 60 of (Federal Rules of Civil Procedure).” The court held a hearing on this motion on September 18, at which plaintiff argued that dismissal of the action was premature because she had not yet completed her dis- covery. Apparentiy hoping for a quick and favorable response to her motion, plaintiff filed no ». *tice of appeal from the final judgment prior to September 19, when the thirty-day deadline prescribed by Fed.R. App.P. 4(a)(1) elapsed. On September 22, the district court denied the Motion to Reconsider, pointing out that the reason for its original dismissal of plaintiff's Ciaims was legal, not factual, and that further discovery could avail plaintiff nothing. Not until October 20 did plaia- tiff file a notice of appeal. -7- Mrs. Alvestad now appeals both from the final judgment dismissing her claims and from the subsequent denial of her motion to reconsider. As explained below, we con- clude that we may not consider her appeal from the judgment because her notice of appeal was not timely filed. We further find that the district court did not abuse its discretion in denying the posttrial motion to reconsider. Accordingly, we affirm the judgment entered below. The Appeal From Final Judgment Rule 4(a)(1) of the Federal Fules of Appellate Procedure requires that a notice of appeal be filed “within 30 days after the date of entry of the judgment or order appealed from.” The district court entered its judgment dismissing Mrs. Alvestad's suit on August 20. She filed her notice of appeal on October 20, sixty-one days later and thirty-one days late. Consequently, her appeal must fail unless she falls within some susteiiion to the rule. -8- Rule 4(a) (4) provides that the filing of a timely motion for a new trial] under Fed.R.Civ.P. 59 will toll the running of the period for filing an appeal until the entry of an order denying the Rule 59 motion. Mrs. Alvestad filed her motions pursuant to Rules 59 and 60(b) on September 10. This was eleven days after the ten-day limit prescribed by Rule 60(b). Clearly the motion for a new trial was not timely. While conceding the tardiness of her motion, Mrs. Alvestad presses upon us the applicability of a judicially created exception to the timeliness requirements of Rule 4. In Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962) and Thompson v. Immigration and Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, ll L.Ed.2d 404 (1964), the Supreme Court excused a party's failure to file a timely notice of appeal because of the “unique circumstances" in which the:party had relied -9- 213- her deadline was passed, she still had twenty-seven days until Rule 4(a)(5) in 2 In- which to ask for such an extension. stead, having allowed the deadline for appeal to pass without requesting any relief from it, she waited nearly another month before filing the motice of appeal on October 20. Given this neglect of oppor- tunities to obtein the desired ruling on her motions withowt abandoning the appeal, we cannot conclude that Mrs. Alvestad has proven herself the victim of unique circunm- stances justifying relief from the timeli- ness requirement of Rule 4(a)(1). Conse- quently, we do not consider the appeal from the district court's judgment. 2 Alternatively, appellant could have filed the notice of appeal. Although the filing of a notice of appeal divests the trial court of jurisdiction, see United aah v. Dunbar, 611 F.2d 985, 98 1980) cert. denied, 447 U.S. 926, 100° S.Ct. 3022, 65 L.Ed.2d 1120 (1980), Mrs. Alvestad would have been able to seek a remand to the district court when and if it agreed that a new trial or some al- teration in its judgment was appropriate. -14- The Rule 60(b) Motion (3) The district court denied Mrs. Alvestad's Rule 60(b) Motion to Reconsider on September 22, and the notice of appeal filed October 20 is timely with respect to this order. Our review of the district court's action is confined to whether denial of the motion constituted an abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402 (Sth Cir. 1981). 7 (continued) See 7 J. Moore, Federal Practice, Para. 60.30(2) at 419-24 (1970). If this court had declined to take such a course, . appellant still would have been in a position to secure any merited relief through our review of the district court's actions. Appellant filed a second Rule 60(b) mo- tion on October 16. The district court subsequently declined to consider this motion when the October 20 notice of appeal removed jurisdiction to this court. The district court already had denied the first Rule 60(b) motion (on September 22) when appellant filed her notice of appeal on October 20, however, so the timely notice is sufficient to support an appeal from that order. Appellant relies upon three of the six reasons for which a district court may re- lieve a party from judgment under Rule 60(b): "(1) mistake, inadvertence, surprise or excusable neglect; ... (4) the judgment is void; .. . or (6) any other reason justifying relief from the operation of the judgment." She then cited Compton v. Alton Steamship Company, 608 F.2d 96 (4th Cir. 1979), for the proposition that these three grounds for relief collectively en- compass a trial court's mistakes of law. Mrs. Alvestad's complaint about the judgment, simply stated, is that the court below pre- maturely shut off her discovery and erro- neously applied the Jones Act's definition of “employer”, the law of conflicts, and the doctrine of forum non conveniens to the facts of this dispute. (4) Without reaching the merits of these contentions, we do not regard Rule 60(b) as an appropriate avenue for relief from judi- cial mistakes of this kind. The Fourth Circuit -16- in Compton undeniably construed Rule 60(b) as providing for relief from legal errors committed by a trial court. However, it referred only to situations in which "the mistake was clear on the record, and in- volved a plain misconstruction of the statute on which the action was grounded...." 608 F.2d at 104. Our own decision in Meadows v. Cohen, 409 F.2d 750 (5th Cir. 1969), quoted extensively in Compton, held a district court to have abused its dis- cretion in not granting a Rule 60(b) motion for relief from a judgment "which was clear- ly at variance with the plain wording" of a federal statute. Id at 753. While we thus have admonished district courts that they should honor requests to reform a judgment in obvious conflict with a clear statutory mandate, we have been equally insistent that Rule 60(b) is not a substitute for the ordinary method of re- dressing judicial error — appeal. In its origins, Rule 60(b) “represents an effort to “codify the equitable practice with respect to the correction of judgments after the time for appeal has expired." Lafferty v. District of Columbia, 277 F.2d 348, 351 h.6 (D.C.Cir. 1960). It is not a means for postponing or escaping that expiration. In Gary W. v. Louisiana, 622 F.2d 804 (Sth Cir. 1980), cert. denied 450 U.S. 994, 101 S.Ct. 1695, 68 L.Ed.2d 193 (1981), appel- lant who had neglected to appeal an award of attorneys’ fees against them sought re- lief from the judgment through a Rule 60(b) motion. On appeal from the district court's denial of their motion, appellants maintained that this denial was an abuse of discretion because the court had committed the "mistake" of applying the wrong legal standard. "(E) ven if the trial court had misapplied an incorrect legal standard when assessing legal fees," we observed in affirming the denial, “the proper way to challenge its ruling in the -18- ye court of appeals is by appeal of its ruling, not by appeal of a denial of a Rule 60(b) motion." 622 F.2d at 805 (footnote omitted). 4 Similarly, in Fackelman v. Bell, 564 F.2d 734 (5th Cir. 1977), this court rebuffed an appellant's effort, to use Rule 60(b) to reopen an adverse judgment on the ground that the district court had erroneously interpreted the Freedom of Information Act: All of these mistakes, if mistakes they be, are mistakes of law and could have been raised on appeal. The law of this Circuit permits a trial judge, in his discretion, to reopen a judgment on the basis of an error of‘law... But such reopenings are certainly not mandatory. The orderly process of appeal usually is far more appropriate to deal with such errors. 564 F.2d at 736. ‘ Moreover, this court long ago listed eight factors as stated by Prof. Moore in his treatise, that guide a district court's consideration of a Rule 60(b) motion. See United States v. Gould, 301 of the foremost is "that the Rule 60(b) motion is not to be used as a substitute for appeal." See also Seven Elves, Inc. v. Eske i, 635 F.2d > Cir. Tosry Even Professor Moore, to whom we may trace the controversial idea that "mistake" under Rule 60(b) includes “mistakes of law", see a Vv. wt 435 F.2d 1266, 1267 (ls cert. denied. 402 U.S. 1012, 91 S. Ct. -19- Ae BD (5) As Fackelman went on to explain, we have attempted in our prior decisions on Rule 60(b), including Meadows, merely to avoid wasting appellate resources on the perfunctory correction of “obvious errors of law." Id. This case contains no such facially obvious error. Although appellant employs the customary rhetorical device of depicting each alleged error as clear and beyond question, the only thing made clear by the numerous brief submitted by all parties to this dispute is that the legal questions presented are at least arguable. Without intimating any view of the merits, we are certain that an inquiry into whether the court below properly applied the seven-part choice-of-law test announced in Lauritzen v. Larsen, 345 U.S. 571, 583-91, 73 S.Ct. 921, 928-32, 97 L.Ed. 1254 (1953) or the similarly multi-faceted con 2189, 29 L.Ed.2da 435 (1971) (citing with disapproval 7 J. Moore, Federal Practice Para. 60.22(3) (1970)), agrees that Rule 60(b) is no alternative to an appeal. See Moore, supra, Para. 60.27(2) at 353. Sey mane Lo forum non conveniens analysis required by 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) is one which could have and more suitably which should have been undertaken on appeal rather than as a mere prelude to an attempt to show discretionary abuse under Rule 60(b). In sum, therefore, we cannot say that the district court abused its discretion in denying a Rule 60(b) motion alleging only that the court had mistakenly interpreted the law. The judgment below is AFFIRMED. APPENDIX 5 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NOS. 80-2157 & 81-2015 MRS. AAGE LASSE ALVESTAD, Individually and as Representative of the estate of Aage Lasse Alvestad and their minor daughter, Plaintiff-Appellant versus MONSANTO COMPANY, ET AL, De fendants-Appellees. Appeals from the United States District Court for the Southern District of Texas ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC (Opinion 4/1/82, 5 Cir., 198 , F.2d) ( May 17, 1982 ) Before THORNBERRY, TATE and WILLIAMS, Circuit Judges PER CURIAM: (X} The Petition for Rehearing is DENIED and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 16) the Suggestion for Rehearing En Banc is DENIED. .. ENTERED FOR THE COURT: SIGNED/J. WILLIAMS United States Circuit Judge ; es, y a APPENDIX 6A XIV - UNITED STATES CONSTITUTION AMENDMENT XIV... Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; ner shall any State deprive any person of life, liberty, or property, without due _ sayy wi of law; nor deny to any person within ts jurisdiction the equal protection of the laws. .. APPENDIX 6B Rule 4 - Federal Rules of Appellate Procedure (a) Appeals in Civil Cases... (5) The district court, upon a showing of excusable neglect or good cause, may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a). — such motion which is filed before expira- tion of the prescribed time may be ex parte unless the court otherwise requires. Notice of any such motion which is filed after expiration of the prescribed time shall be given to the other parties in accordance with local rules. No such extension shall exceed 30 days past such prescribed time or 10 days from the date of entry of the order granting the motion, whichever occurs later. .. “ ne? i ag ct Rule 26 - Federal Rules of Appellate Procedure. (a) Computation of Time. In computing any period of time prescribed by these rules, by an order of court, or by any applicable statute, the day of the act, event, or de- fault from which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period extends until the end of the next day which is not a Saturday, a Sunday, or a legal holi- day. When the period of t prescr or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in this rule “legai holiday” includes New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christ- mas Day, and any other day appointed as a holiday by the President or the Congress of the United States. It shall also include a day inted as a holiday by the state wherein the district court which rendered the judgment or order which is or may be ed from is situated, or by the state ein the principal office of the clerk of the court of appeals in which the appeal is pending is located. APPENDIX 6D Rule 12 - Federal Rules of Civil Procedure Defenses and Objections — When and How Pre- sented — By Pleading or Motion — Motion for Judgment on Pleadings (b) How Presented. Every defense, in law of fact, to a claim for relief in any plead- ing, whether a claim, counterclaim, cross- claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join an indispensable party. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading a — or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56... — APPENDIX 6E Rule 56. Federal Rules of Civil Procedure. Ss J ee (b) For Defending Party. A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or with- out supporting affidavits for a summary judgment in his favor as to all or any part thereof. (c) Motion and Proceedings Thereon. The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interro- gatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judg- ment, interlocutory in character, may be rendered on the issue of liability alone although there is no genuine issue as to the amount of damages... (e) Form of Affidavits; Further Testi- Mony; Defense Required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for sunm- mary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or Genials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuire issue for a0 me trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. (f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judg- ment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just... APPENDIX 6F Rule 59. Federal Rules of Civil Procedure. New Trials; Amendment of Judgments (a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have here- tofore been granted in actions at law in the courts of the United States; and (2) in an action tried without a jury, for any of the: reasons for which rehearings have hereto- fore been granted in suits in equity in the courts of the United States. On a motion for a new trial in an action tried without a jury, the court may open the judgment if one has been entered, take additional testi-. mony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment. (b) Time for Motion. A motion for a new trial shall be served not later than 10 days poe the entry of the judgment... APPENDIX 6G Rule 60 - Federal Rules of Civil Procedure Relief from Judgment or Order - « « (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following rea- sons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after the judgment, order, or proceed- ing was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or pcoeeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., Section 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action. As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948, eff. Oct. 20, 1949. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, Indi- vidually and as Representative of the Estate of AAGE LASSE ALVESTAD, and their minor daughter (Filed Sept. 10, 1980) vs. MONSANTO COMPANY, ET AL MOTION TO RECONSIDER ORDER OF THE COURT DISMISSING CAUSE OF ACTION AND TO REINSTATE CAUSE OF ACTION AND MOTION TO GRANT A NEW TRIAL PURSUANT TO RULES 59 AND 60 OF F.R.C.P. TO THE HONORABLE JUDGE OF SAID COURT: I. While the Defendant's Motions to Dismiss under Rule 12(b) and for forum non conveniens have been pending for quite some time, the undersigned counsel took over as attorney in charge on August 5, 1980, in lieu of Louis Koerner, who became unavailable due to ungoing litigation in the State of Pennsylvania, and mailed on August 6, 1980 a Motion to Defer Determination of Defend- ant's Motion to Dismiss Under Rule 12(b) F.R.C.P., on Grounds of Forum Non Conveniens and on Grounds of Limitations, which Motion to defer and the transmittal letter are attached hereto as Exhibit A and incorporated herein by reference. On August 1l, 1980, Plaintiff received a notice from the Court which is attached hereto as Exhibit B and incorporated herein by reference that the Court was placing the Plaintiff's Motion to Defer upon the "Court's written motion docket for September 1, 1980". Nine days later Plaintiff received the Memorandum and Order of this Court dismissing this cause on grounds of forum non conveniens, same being attached hereto as Exhibit C and incorporated herein by reference. II. Plaintiff is hopeful that the Court was unaware of the Plaintiff's Motion to Defer -2- because the Court did not give the Plaintiff an opportunity to have said Motion presented and heard as per its notice of August ll, 1980 (Exhibit B). In that connection Plaintiff would call to the attention cf the Court that a notice of deposition is attached to said Motion to Defer which calls for the deposition of the corporate officers of the various companies involved including Monsanto Oil Company, U.K., Inc., Dolphin International, Inc., Monsanto Company, and the various individuals who would have the information, charters, agreements, records, Board of Directors lists and other infor- mation which would be necessary for the Plaintiffs to properly prepare their case. Depositions were set for August 26 and August 27, 1980 at 9:00 a.m. but Defendants declined to present their witnesses due to this Court's Order of August 20, 1980. Iit. Your Plaintiff would respectfully show to the Court that it would be premature and a gross miscarriage of ju*.ice to pre- > os clude the Plaintiffs from taking the depo- sitions, sought by the above referred to notice and to permit the Plaintiffs to have further discovery in this matter. Attempting to get the Defendants to cooperate with res- pect to discovery has been difficult if not impossible in this case. The Plaintiffs have filed interrogatories addressed to the Defendants as indicated by the Court file in this cause. Reference is now made to said interrogatories. The Court file also reflects that the Defendants have either objected to or not filed answers to those interrogatories. In the meantime the Defendants, in their pleadings and motions, have represented that the vessel in question, the Borgny Dolphin, had nothing to do with the United States and there was no connection between the vessel and the United States. Late last year the Plaintiff understood from different sources that this was not true and that the vessel was directly -4- and/or indirectly controlled by the United States through various corporations and the Plaintiff then began to secure documents from a non-defendant, Occidental Petroleum Com- pany. Those efforts were difficult and it was not until May of this year that Plaintiff was able to secure those documents. It took séveral months for Plaintiff to eurenge te secure said documents from Occidental (the Defendants having refused to produce them ‘oetah interrogatories) and they were fin- ally subpoenaed from Occidental; as an indication of the difficulty involved, letters and the deposition of Mr. Christovich, attorney for Occidental, are attached hereto and incorporated herein by reference and marked Exhibit D. Iv. In order to secure said documents it be- came necessary for Plaintiff's counsel to make a trip to England which, as stated above, was done in May. The documents finally pro- duced by Occidental show that the vessel in aS Order Dismissing Cause of Action and Motion to Reinstate and Motion to Grant a New Trial. Said Motion was placed upon the Courts "Written Motion Docket for October 6, 1980". Said Motion to reconsider and to reinstate is referred to for all purposes and incorpo- rated herein by reference. The Notice of the Court setting the Motion on the Court's Written Motion Docket is incorporated herein by reference. Since October 6, 1980 would have been more than thirty days following the Court's final Judgment and Order of August 20, 1980 the Plaintiffs specially requested a hearing and the earliest date such hearing could be arranged was September 18, 1980, just one day before the 30 days from the final Judgment and Order would: expire. 21. A hearing was had on September 18, 1980 and as such hearing began the Court stated that at the time it entered its Memorandum and Order of August 20, 1980 it was not aware of the Plaintiffs’ Motion to Defer or the Notice of Depositions attached thereto. The Court further indicated that it realized the Plaintiffs had a time limit with respect to filing an appeal. Because of such com- ments, Plaintiffs' counsel assumed that the Court was aware of the fact that Plaintiffs’ time for appeal would expire the next day. Moreover, in view of the nature of the discussion that day, it appeared that the Court might favorably consider allowing further discovery, at least with respect to the Monsanto Defendants. Plaintiffs’ counsel bona fidely and properly assumed that, when the Court did not rule on Friday, August 19, 1980, the last day for the plaintiffs to perfect its appeal, that the Court would at least partially grant Plaintiffs’ Motion to Reinstate and Reconsider (see affidavit attached hereto as Exhibit C). Moreover, Plaintiffs were aware of this same Court's order in Eva Wilkinson v. Phillips Petroleum Company wherein tne Court had entered a judgment of dismissal. The Plaintiffs there had filed a request for reconsideration and to reinstate that cause of action and be- cause the Court did not rule on the 30th day, the Plaintiff filed its Notice of Appeal andthe court entered an Order stating that it had no authority to consider the Motion to Reinstate because the Plaintiff had filed a notice of appeal, the Court being of the opinion that “this Court is without jurisdiction to consider plaintiffs' motion", citing Kirtlind v. J. Ray McDermott, Inc., 568 F.2d 1166, 1170 (5th Cir., 1978) and U.S. v. Dunbar, 611 F.2d 985, 987 (5th Cir. 1980). Said Order in Wilkinson v. Phillips Petroleum Company C.A.NO. H-78-673, is attached hereto as Exhibit B-5. Despite the fact that this Court in this case stated at the September 18 hearing that it was aware of the imminent running of the 30-day appeal period, the Court did not rule on September 19, 1980 and did not rule until September 22, 1980, three days after the 30-day period had expired. On that date the -23- Court entered an order denying the Plain- tiffs' all relief. Said Order is attached hereto as Exhibit B-6. 22. At the time the Court entered its Memorandum and Order of August 20, 1980 and its Order denying Plaintiffs’ Motion to Reinstate and Reconsider of September 22, 1980, the Court still, as far as we know, had not ruled on Plaintiffs' Motion to Compel the Monsanto Defendant to answer the unanswered question in the first set of interrogatories. Moreover, the Court had not ruled upon the Defendant's Motion for Protective Order filed by the Monsanto Defendants with respect to the Second Set of Interrogatories and Request for Production of Documents submitted by the Plaintiffs to the Monsanto Defendants. Moreover, this Court had never reset a submission date on the "Written Motion Docket" or set an oral hearing date for the various Motions to Dismiss and/or for Summary Judgment of the Defendants. Moreover, the Court had not -24- ruled on the Plaintiffs' previously filed Motion to Defer and Notice of Deposition of the corporate officers of the Defendents for depositions with respect to their various Motions to Dismiss. ... APPENDIX 9 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, ET AL : : : Plaintiffs, : g:: vs. 3 Cele NO. H-79-1883 : MONSANTO COMPANY, : (Filed Oct. 20, 1980) ET AL, : : Defendants : NOTICE OF APPEAL Notice is hereby given that the above- named Plaintiffs hereby appeal to the United States Court of Appeals for the Fifth Cir- cuit from the judgment entered in this cause of action on the 22nd day of September, 1980, by Judge Norman W. Black. Respectfully submitted, LAW OFFICES OF BENTON MUSSLEWHITE, INC. 3506 Travis Street Houston, Texas 77002 (713) 520-0621 SIGNED/BENTON MUSSLEWHITE Attorney in Charge for : Plaintiffs CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Notice of Appeal has been forwarded to all counsel of record by placing a copy of same in the United States Mail, postage prepaid and properly addressed, all on this the i7th day of October, 1980. S/BENTON MUSSLEWHITE APPENDIX 10 LAW OFFICES OF LOUIS R. KOERNER, JR. A PROFESSIONAL LAW CORPORATION 730 CAMP STREET NEW ORLEANS, LOUISIANA 70130 February 18, 1980 Randy McClanahan, Esq. Baker & Botts, Esqs. 1 Shell Plaza Houston, Texas 77002 Re: Mrs. Aage Lasse Alvestad, et al v. Monsanto Company, et al Civil Action No. H-79-1883 Dear Randy: This. letter is to confirm our conversation this morning in which you agreed to pase the submission date on February 18th on the outstanding Motions in the above ref- erenced case until after production of . G@ocuments on February 29, 1980. After production of the documents, we will need to decide on a date for submission of the Motions. In accordance with my agreement with you, I will copy the entire file which is produced during the document production and forward same to you. I understand that you will not be in attendance, but that Steve DeWolf of Vinson & Elkins will. By copy of this letter, I am advising the Court of our agreement. I attempted to reach the Clerk's office today but apparently due to the holiday, the office was closed, as there was no answer. I will contact the Court on February 19th with regard to this matter. If you have any questions concerning the upcoming production of documents, please do not hesitate to call. With kindest personal regards, I remain Sincerely, S/Cynthia A. Norris CAN: tc cc: Jesse E. Clark, Clerk APPENDIX 11 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, Indi- vidually and as Representat.ve of the Estate of AAGE LASSE ALVESTAD, and their Minor Daughter, C.A. NO. H-79-1883 Plaintiffs (Filed Aug. 6, 1980) vs. oF ef of ©F © 8 88 86 8 88 88 88 88 OF MONSANTO COMPANY, ET AL MOTION TO DEFER DETERMINATION OF DEFENDANTS' MOTIONS TO DISMISS UNDER RULE 12b OF F.R.C.P., ON GROUNDS OF FORUM NON CONVENIENS AND ON GROUNDS OF LIMITATIONS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, by and through their attorney of record, and files this Motion to Defer Determination of Defendants’ Motions to Dismiss under Rule 12b of F.R.C.P., on grounds of forum non conveniens, and on grounds of limitations and as grounds therefor would respectfully show unto this Honorable Court the following, to-wit: I. Defendants have filed a Motion to Dismiss under Rule 12b of Federal Rules of Civil Procedure, on grounds of forum non conveniens and on grounds of limitations. II. Movant would show that he is filing additional briefs and undertaking additional discovery concerning jurisdictional matters in order to develop the facts in this case that were considered relevant in Susan Keane, et al v. Global Marine, Inc., et al, C.A. No. H-77-1006, U.S.D.C. &.D., Tx., Houston Divi- sion, Honorable John V. Singleton's Memoran- dum and Order dated October 24, 1978. Itt. In this connection, Movant would show that he is filing Notices of Deposition, a copy attached hereto, of the officers, agents and/or employers of Defendants with =2o the most knowledge of facts relevant to a determination of Defendants’ Motions to Dismiss. The completion of this discovery is necessary in order that Movant can pro- perly respond to Defendants’ Motions. As held by the Supreme Court of the United States in Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 48 L.Ed.2d 335, 96 S.Ct. 1848 (1976), to-wit: "Dismissals prior to giving the Appellant ample opportunity for discovery should be granted very sparingly." See also Illinois State Employees Union Counsel 34 AFL-CIO v. Lewis, 473 F.2d 461 (7th Cir. 1972) cert. den'd. 1973, to-wit: "Nor should such (dismissal motions) be entered until the party opposing the motion has had a fair opportunity to conduct such discovery as may be necessary to meet the factual basis for the motion...” IV. Movant would show that counsel for Defendants do not agree to this Motion and are opposed to same. WHEREFORE, PREMISES CONSIDERED, Movant prays the Court defer ruling on Defendants’ Motions to Dismiss for one-hundred and ninety (190) days, or, in the alternative, until November 21, 1980. Respectfully submitted, LAW OFFICES OF BENTON MUSSLEWHITE, INC. S/BENTON MUSSLEWHITE 3506 Travis Street Houston, Texas 77002 (713) 520-0621 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Notice of Intent to Take Oral Depositions has been p-ovided all counsel of record on this the 6th day of August, 1980. S/BENTON MUSSLEWHITE APPENDIX 11 - continued IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION MRS. AAGE LASSE ALVESTAD, Indi- vidually and as Representative of the Estate of AAGE LASSE ALVESTAD, and their Minor Daughter, Plaintiffs vs. MONSANTO COMPANY, ET AL NOTICE OF INTENT TO TAKE ORAL DEPOSITIONS TO: Defendant, Monsanto Company, by and through its attorney of record, Steven DeWolf of Vinson & Elkins, 2100 First City National Bank Bldg., Houston, Texas 77002 Defendants, Dolphin Int'l, S.A. and Dolphin Int'l, Inc. and Monsanto Oil Cc y of the U.K., Inc., by and through their attorney of record, Randy J. McClanahan of Baker & Botts, 3000 One Shell Plaza, Houston, Texas 77002. PLEASE TAKE NOTICE that, pursuant to Rules 26 and 30, Federal Rules of Civil Procedure, the Plaintiff, by and through his attorney of record, BENTON MUSSLEWHITE, will take the oral deposition, before an officer authorized to administer oaths, of the following: A. The corporate officer(s), agent(s), and/or employee(s) of Defendant Monsanto Company that would have the most knowledge of the corporate relationships between it and: 1. Monsanto Oil Company of the U.K., Inc. 2. Dolphin Int'l, Inc. and Dolphin Int'l. ’ S.A.; B. The corporate officer(s), agent(s), and/or employee(s) of Defendant Monsanto Oil Company of the U.K., Inc. that would have the most know- ledge of the corporate relationships between it and: 1. Monsanto Company; 2. Dolphin Int'l., Inc. and Dolphin Int'l., S.A.; C. The corporate officer(s), agent(s), and/or employee(s) of Defendants Dolphin Int'l., Inc. and Dolphin Int'l, S.A. that would have the most knowledge of the corporate relation- ships between it and 1. Monsanto Company 2. Monsanto Oil Company of the U.K., Inc. particularly as their relationship pertains to the ownership and control of the vessel upon which the decedent, Aage Lasse Alvestad was serving at the date of his death, March 22, 1975. . « « The depositions will take place on the 26 and 27 day of August, 1980 at 9:00 o'clock a.m. in the office of Robert A. Chaffin, 3500 Travis, Houston, Texas 77002 and continue from day to day until completed. No subpoena duces tecum is necessary since the deposed are parties to this suit. You are invited to attend and cross- examine. Respectfully submitted, LAW OFFICES OF BENTON MUSSLEWHITE, INC. S/Benton Musslewhite 3506 Travis St. Houston, Texas 77002 (713) 520-0621 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing Notice of Intent to Take Oral Depositions has been provided all counsel of record on this -3- 6th day of August, 1980. S/Benton Musslewhite APPENDIX i2 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS OFFICE OF THE CLERK JESSE E. CLARK P. O. Box 61010 CLERK Houston, Texas 77208 August 11, 1980 e Re: Civil Action H-79-1883 MRS. AAGE LASSE ALVESTAD v. MONSANTO COMPANY, ET AL PLEASE BE ADVISED that Plaintiff's Motion to Defer Determination of Defts' Motions to Dismiss under Rule 12b, F.R.C.P., on Grounds of Forum Non Conveniens and on —— of Limitations, filed August 1l, 0 has been placed on this Court's Written Motion Docket for Sep 1, 1980. ALL RESPONSES to said pleading ARE DUE ON UR BEFOPE this date. Motions will be considered by the Court on the written documents presented by counsel WITHOUT the necessity of a personal appearance by counsel. Copies of the Court's decision will be forwarded to all counsel of record. REQUEST FOR ORAL PRESENTATION of motions will be considered by the Court on or after the submission date stated above. However, mnless notified by the Clerk, counsel will presume that no oral hearing is permitted. Very truly yours, JESSE E. CLARK, CLERK By: S/P. Robinson, deputy cc: All counsel of record APPENDIX 13 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS OFFICE OF THE CLERK JESSE E. CLARK P. O. Box 61010 CLERK Houston, Texas 77208 August 15, 1980 date Re: Civil Action H-79-1883 MRS. AAGE LASSE ALVESTAD v. MONSANTO COMPANY, ET AL JUDGE NORMAN W. BLACK PLEASE BE ADVISED that Pltfs MOTION To RECONSIDER ORDER DISMISSING CAUSE OF ACTION and MOTION To REINSTATE And MOTION To GRANT A NEW TRIAL has been placed on this Court's Written Motion Docket for Oct 6, 1980. ALL RESPONSES to said pleading ARE DUE ON OR BEFORE this date. Motions will be con- sidered by the Court on the written documents presented by counsel WITHOUT the necessity of a personal appearance by counsel. Copies of the Court's decision will be forwarded to all counsel of record. REQUEST FOR ORAL PRESENTATION of motions will be considered by the Court on or after the submission date stated above. However, unless notified by the Clerk, counsel will presume that no oral hearing is permitted. Very truly yours, JESSE E. CLARK, CLERK By: S/A. Daniel, deputy cc: All counsel of record APPENDIX 14 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION April 12, 1978 MRS. AAGE LASSE ALVESTAD, ETC. vs. CIVIL NO. S-78-23-CA MONSANTO CO., ET AL The following motion was filed on April 12, 1978: PLAINTIFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES. There was evidence received of the necessary service of motion on the adverse parties. No Motion will be presented to the Judge until indication of service is received by the Clerk and the proper time has elapsed as governed by the Rules of this Court. Indica- tion of service is usually given by a state- ment at the bottom of the mo*ion, below the signature, showing the date a copy of the motion was mailed to adverse party. This statement should be signed. All Motions, except those hereafter listed, are to be answered within ten (10) days, unless otherwise allowed by the Court or some applicable rule of the Federal Rules of Civil Procedure. The following motions do not reguire an answer: 1. Motion to Withdraw or Appear as Counsel; 2. Motion for Extension of Time; 3. Motion to Amend Pladings (unless additional parties are being added). 4. Joint Motions. THE LOCAL RULE is to consider motions on the pleadings, without oral hearing, unless on showing good cause an oral hearing is granted. Request for oral hearing, if any, should be made when the motion, or the reply is filed. If oral hearing is granted, the Judge will set a date for same and the interested attor- neys will be notified. THE JUDGE desires that memorandum briefs containing authorities relied on as to -2- matters raised in the motion be filed by the respective parties before the motion is submitted. ‘Please note also that it is the Court's rule on all documents including forms of orders and judgments, be sent to the Clerk's office and not directly to the Judge. IF YOU DO NOT DESIRE TO OPPOSE THE ABOVE MOTION, PLEASE INFORM THE CLERK BY LETTER. MURRAY L. HARRIS, CLERK S/Shirley Davis (Mrs.) Shirley Davis, Deputy Clerk cc: Mr. Richard E. Gray Thompson, Knight, Simmons & Bullion Attorneys at Law 2300 Republic National Bank Bldg. Dallas, Texas 75201 Mr. R. M. Sharpe, Jr. Sharpe & Associates Attorneys at Law 1553 Esperson Building 815 Walker St. Houston, Texas 77002. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0841%3A2. Public record. Not legal advice.