Appendix — Brady v. Ohio

Al

APPENDIX A

(1) Opinion of December 10, 1964

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 18,637

Sust: Ann Granam, Appellant,

Ve

Tue PENNSYLVANIA RAILROAD AND

THe Wasutncton TreERMinaL Company, Appellees.

Appeal from the United States District Court

for the District of Columbia

oe

Decided December 10, 1964

Mr. Melvin Hirshman, with whom Mr. Earl H. Davis

was on the brief, for appellant.

Mr. Stephen A. Trimble, with whom Mr. Thomas A.

Flannery was on the brief, for appeilees.

Before Witspur K. Miuter, Senior Cireu:t Judge, and

Wricut and McGowan, Cireuit J udges.

Per Curiam: This action in tort was pending on July

1, 1963, when certain amendinents to Rule 25(a)(1) of

the Federal Rules of Civil Procedure became effective.

The effect of these changes was to require, as to a de-

ceased party, dismissal of an action unless a motion for

substitution is filed within 90 days after a suggestion of

death is made upon the record. In this case, plaintiffs’

A2

counsel were advised on or about July 23, 1963, that pla’n-

tiff David Graham had died on May 17, 1963. Plaintiffs°

counsel thererpon filed a formal] suegestion of such death

in the Distriet Court on July 24, 1963. On February 3.

1964—somewhat in excess of six months later—counsel

filed a motion to substitute appellant administratrix

(known by such counsel on July 30, 1963 to have been ap-

pointed) for the deceased plaintiff. Defendants, on Feb-

ruary 7, 1964, filed an opposition to the motion and a

motion to dismiss, founded upon the lack of timeliness

under Rule 25(a)(1). A few days later appellant moved

unde~ = ale 6(b) to enlarge the time period fixed in Rule

25(a)(1). After a hearing on March 17, 1964. the Dis-

trict Court denied appellant's motions and dismissed the

complaint.

In the view we take of the case, we address ourselves

only to the issue of whether the District Court abused it-

diseretion under Rule /b) in failing to enlarge the -

day period. That this power to enlarge is committed to

the court’s discretion ‘*for cause shown"’ is explicit in the

language of the Rule itself and in the Advisory Commit-

tee’s note to it. In the papers constituting the reeor!

before the District Judge. the only ‘**cause shown” a-

excusing the neglect is the statement in the Points ani

Authorities supporting the motion to enlarge that **coun-

se] frankly was unaware of the change due to his rule-

service not being up to date’’: and tha? **Sinee July 5),

1963, counsel has been engaged in the preparation of seven

appellate cases in the U. S. Court of Appeals. and D. ©.

Appeals, in addition to preparation for trial of an exten-

sive Federal Tort Claims Act case. and other eases."" We

cannot say that, on this showing. the District Court abused

its discretion to a degree warranting corrective interven-

tion by us.

In oral argument before us, we were strongly urged tu

reverse the District Court for the reason that lawyers

N\

A3

should be given time to become aware of rule chary «.’

But it is not as if no such time had been provided. The

amendments which became effective in 1963 were widely

circulated in 1961. They were adopted by the Supreme

Court on Jannary 21, 1963 to become effective the fol-

lowing July 1. In that interim they were published in

the official reports. and disenssed in the treatises and

legal periodicals. We think the Supreme Court expected

lawyers with any serious vretensions to praciice in the

federal courts to become familiar with rule changes on

or shortly after their effective date. That expectation

Was not, under the circumstances, irrational or arbi-

trary in the large, and we do not reverse the District

Court for its recognition of it in this particular instance.

Afirmed.

Wricat. Cirewtt Judae, dissenting: This action was

nied in the District Court on December 9, 1959. It 4id not

reach the pre-trial stage untii July of 1963, at which time

plaintiffs" counsel filed a statement suggesting the death of

plaintiff David Graham on May 17. 1963, and moving for

a delay in the proceedings until a personal representative

‘The availability. asserted in the dissent. of Rule &6fe for

appellant's relief stands sharply in contras* to her failure to rely

upon it. either in the District Court or befnave us. We would have

thought. as perhaps counsel did alsc. that Rule s5:e¢° is adriressed

to those many unanticipated exigencies in respect of which the

Supreme Court has not. elsewhere in the Rules. fashioned specif

measures of relief. with explicit standards for their application. In

the ease of a failure to observe the Si-dav time limit in Rule 25a

1 . the Distriet Court. in Rale oib:. is given a discretion to

atford relief upon a showing of excusable neglect. As its date

indicates, New Orleans Pud. Belt R.R. -. Wallace. 173 F.2d 145

‘3th Cir. 1949. did not involve the particular Rules with which we

are concerned here. nor did it present a situation in respect of

which a precise avenne of escape had been provided elsewhere in

th. Rules.

Ad

was qualified. On February 3, 1964, the administratrix of

Graham's estate moved to be substituted for him in these

proceedings. On February 7. 1964, the defendants opposed

the motion to subr*itute and moved to dismiss the action as

to David Graham under the July 1, 1963 amendment to

Rule 25, Fev. R. Cry. F., on the ground that 90 days had

elapsed since the 4ling of the suggestion of death. The

District Court granted this motion without stating rea-

sons.

For me, it is not necessary to divine why the District

Court granted the motion to dismiss, or to determine

whether, under Rule 6(b)(2). Fen. Cry. P., the failure

of counsel for Graham to act within the time prescribed

by the amendment was the result of excusable neglect.

When Rule 25(a)(1) was amended.’ Rule S6(e), Fen. R.

Crv. P., was added te the Ruies. It provides that the July

1, 1963 amendments will **govern * * * all further pro-

‘The amendment to Rule 25:a (1) was promulgated to prevent

the automatic, and often unjust. dismissal of cases where a party

plaintit? has died. The Notes of tae Advisory Committee on the

1963 Amendment to Rule 25(a)' 1) (1963) indicate:

‘Present Rule 25(a‘ (1), together with present Rule 6(b).

results in an inflexible requiremer: that an action be dis-

missed as to a deceased party if substitution is not carried out

within a fixed period measured from the time of the death.

The hardships and inequities of this unyielding requirement

plainly apvear from the cases. See. e. g.. Anderson v. Yung-

kau, 329 U.S. 482, 67 S.Ct. 428. 91 L-Ed. 436 (1947): lovino

v. Waterson, 274 F.2d 41 [2d Cir.] 1959). cert. denied, [sud

nom.| Carlin v. [I]ovino. 362 U.S. 949. 80 S.Ct. 860. 4

L.Ed.2d 867 (1960); Perry v. Allen. 239 F.2d 107 (5th Cir.

1956 ; Starnes v. Pennsvivania R. R.. 26 F.R.D. 625 ‘E.D.

N.Y.). aff'd per curiam, 295 F.2d 704 (2d Cir. 1961). cert.

denied, 369 U.S. 813, §2 S.Ct. 688. 7 L.Ed. 2d 612 (1962):

Zdanok v. Glidden Co.. 28 F.R.D. 346 (S.D.N.Y.1961). See

also 4 Moore's Federal Practice © 25.01{9] (Supp.1960) :

2 Barron & Holtzoff. Federal Practice & Procedure § 621. at

420-21 (Wright ed. 1961).""

AD

ceedings in actions then pending, except to the extent that

in the opinion of the court their application in a par-

ticular action pending when the amendments take effect

would not be feasible or would work injustice, in which

event the former proc*dure applies.*' Since applying the

amendment here would work an obvious injustice, I would

apply the Rule as it existed at the time of Mr. Graham’‘s

death.

When Mr. Grham died, under Rule 25(a), as it then

existed, his administratix had two years in which to

move to be substituted for him in these proceedings. The

motion to substitute was made within this two-year pe-

riod. Intervening was the July 1, 1963 amendment to

Rule 25(a), which limited the substitution period to 9

days after the filing of the suggestion of death. But the

tiling of the suggestion of death in this case was not made

pursuant to the amended Rule. Plaintiffs’ counsei had no

idea he was triggering the start of the 90-day period.

The suggestion «i death and motion for continuance was

made pursuant to a practice long followed in the Dis-

trict of Columbia to obtain a delay in the proceedings un-

til an administrator is appointed.’ Plaintiffs’ counsel

2 Although the filed statement was titled *‘SteeEstion or DeaTu

or Marte PLAINTIFF Iv ABOVE ACTION.”’ it was in substance a motion

for a continuane It read as follows:

**Comes now Ear! H. Davis, Esq.. of counsel for the plain-

tiffs in the above captioned action. and suggests to the Court

that he has just been informed that the male plaintiff herein.

David Graham. Cied in North Carolina, on or about May 17.

1963: and by reason of which fact, counsel moves the Court

to abate the above action until a personal representative for

said deeeased plaintiff can be substituted herein.”’

Obviously, what counsel sought was to have the case continued.

see Annot., 68 A.L.R.2d 470. 531 (1959), and not to start the

Rule 25(a@)(1) period running against his own client. Apparently

x

—_—

Ab

was unaware that Rule 25(a) had been changed. And it

appears that in all probability counsel for defendants

suffered from the same ignorance, because insteed of fil-

ing his motion to dismiss 90 days after the filing of the

suggestion of death, he coupled his motion to dismiss with

the opposition to the motion for substitution which was

filed over six months after the filing of the suggestion of

death.

Apparently, therefore, counsel for both parties, and in-

deed the District Court,* were operating under the old

Rule—at least until the motion to dismiss was filed. Un-

caer that Rule the motion for substitution was timely.

Under Rule 86(e), since the application of the July 1,

1963 amendment to Rule 25(a)(1) to this pending action

‘‘would work injustice,’’ the former procedure should have

been applied to the motion to substitute. In any event,

I would not construe plaintiffs’ counsel’s bumbling motion

the District Court also thought it was merely granting a con-

tinuance. Its order read:

*‘OrperR STRIKING Case From Reapy CALENDAR

“*The above action having been set for pretrial on July 23,

1963, and counsel for Plaintiff having suggested the death of

male p)aintiff, David Graham,

** ORDERED

“*That the action be and is hereby stricken from the Ready

Calendar.

/s/ Edward M. Curran

JUDGE

Ordinarily, a suggestion under the new Rule 25(a)(1) would be

filed by a defending party in order to compel the attorney for

the claiming party to move for substitution within 90 days. See

Notes of the Advisory Committee to Rule 25 (a)(1) (1963).

3 See Note 2 supra.

*See New Orleans Public Belt R. Co. v. Wallace, 5 Cir., 173 F.2d

145 (1949), in which the Fifth Circuit used Rule 86 to prevent

an injustice caused by applying the amendment, rather than the

old Rule, to pending litigation.

AZ

for a continuance as a ‘‘Suggestion of Death’’ in the Rule

25(a) (1) sense.

It is a cruel irony that the amendment to Rule 25(a)

(1) is here being interpreted to work the injustice it was

intended to prevent.®

(2) Order of February 24, 1965 Amending the Opinion of

December 10, 1964

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1964

No. 18,637

Susre Ann GraHam, Appellant,

v.

Tur PENNsYLvANIA RAILROAD AND

THe WasHitncton Termirnat Company, Appellees.

Before: Mctoway, Circuit Judge, in Chambers.

ORDER

It is ORDERED, sua sponte, that the opinion filed December

10, 1964, in the above-entitled case is hereby amended

as follows:

Substitute the fullowing in place of the first four lines

of footnote 1 on page 3:

The availability, asserted in the dissent, of Rule

86(e) for appellant’s relief stands sharply in contrast

to her failure to rely upon it, either in the District

Court or in her brief on appeal. The claim that it

should provide the basis for reversal was first ad-

vanced in oral argument before us. In any event, we

would have thought, as perhaps counsel initially did

aiso. .. [remainder of present footnote to follow un-

changed. } ,

Dated: Feb. 24, 1965

5 See Note 1 supra.

Bl

APPENDIX B

(1) Judgment of Affirmance

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SepremsBer TERM, 13964

No. 18,637

Civil 3474-59

Suste Ann Granam, Appellant,

v.

THE she 2NNSYLVANIA RaILRoaD AND

Tue Wasuinscton Terminat Company, Appellees.

[Filed Dee. 10, 1964]

Appeal from the United States District Court for the

District of Columbia.

Before: Whueser K. Mitter, Senior Cireux Judge, and

Wricut and McGoway, Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel.

On consideration whereof it is ordered and adjudged by

this Court that the order of the District Court appealed

from in this cause be, and it is hereby, affirmed.

It is further Orperep b, the Court that each party bear

its own cosfs on this appeal.

Per Curiam.

Dated: Dec. 10, 1964

Separate dissenting opinien by Circuit Judge Wright.

B2

(2) Order Denying Rehearing

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

SEPTEMBER TERM, 1964

No. 18,637

Civil 3474-59

Susr Ann Granam, Appellant,

v.

THE PENNSYLVANIA RAILROAD AND

THe WasHincton TerRMINAL Company, Appellees.

[Filed Feb. 5, 1965]

Before: BazeLton, Chief Judge, and Fany, Washington,

DanauHer, Rastiax, Burcer, Wricut, and McGoway, Circuit

Judges, in Chambers.

ORDER

On consideration of appellant’s petition for rehearing

en banc, it is

OrperED by the Court en banc that appellant’s petition

is denied.

Per Curiam.

Dated: Feb. 5, 1965

Circuit Judges Fahy and Wright would grant appellant’s

petition for rehearing en banc.

Cl

APPENDIX C

Federal Rules of Civil Procedure Involved

Rule 25 [Prior to July 1, 1963]

SUBSTITUTION OF PARTIES

(a) Deatu

(1) If a party dies and the claim is not thereby extinguish-

ed, the court within 2 years after the death may order sub-

stitution of the proper parties. If substitution is not so

made, the action shall be dismissed as to the deceased

party. The motion for substitution may be made by the

successors or representative of the deceased party or by

any party and, together with the notice of hearing, shall

be served on the parties as provided in Rule 5 and upon

persons not parties in the manner provided in Ruie 4 for

the service of a summons, and may be served in any

judicial district.

Rule 25 [subsequent to July 1, 1963]

SUBSTITUTION OF PARTIES

(a) DeatH

(1) If a party dies and the claim is not thereby extin-

guished, the court may order substitution of the proper

parties. The motion for substitution may be made by any

party or by the successors or representative of the de-

ceased party and, together with the notice of hearing, shall

be served on the parties as provided in Rule 5 and upon

persons not parties in the manner provided in Rule 4

for the service of a summons, and may be served in any

judicial district. Unless the motion for substitution is

made not later than 90 days after the death is suggested

upon the record by service of a statement of the fact of

the death as provided herein for the service of the motion,

the action shall be dismissed as to the 4-ceased party.

C2

Rule 86. Effective Date. These rnles will take effect on

the day which is 3 months subsequent to the adjournment of

the second regular session of the 75th Cengress, but if

thac day is prior to September 1, 1938, then these rules will

take effect on September 1, 1938. They govern all pro-

ceedings in actions brought after they take effect and also

all further proceedings in actions then pending, “xcept to

the extent that in the opinion of the court their application

in a particular action pending when the rules take effect

would not be feasible or would work injustice, in waich

event the former procedure applies.

(e) Effective Date of Amendments. The amendments

adopted by the Supreme Court on January 21, 1953, and

transmitted to the Congress on January 21, 1963, shall take

effect on July 1, 1965. They govern ail proceedings in

actions brought after they take effect and also all further

proceedings in actions then pending, except to the extent

that in the opinion of the court their application in a par-

ticular action pending when the amendments take effect

would not be feasible or would work injustice, in which

eveni che former procedure applies.

BRIEF FOR THE

RESPONDENT

IN OPPOSITION

OfficeSupreme Court, U.S.

FILED

- APR 5 1965

‘y

- | JOHN F. DAVIS, CLERK

IN ‘Pill

Supreme Court of the United States

Cho Tot Pesca. D4

Tht PENNSYLVANIA Raibiee: CoMpans

and

THe Waskinaton TrrMinar Company. Respondents

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the

District of Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

Tiowas A. FLANNEI

Ody UCiniien Prust Building

“95 Union Prust Building

Washington 5. De.

Of Counse!:

HAMILTON aNv GLAMIL YON

915 Unien Trust Buildin.

Washington oD.

Purss or Bryson S. Apanis, WASHINGTON, D C

~~ ae

%, We

INDEX

Page

Opinions below .....-------sssrsrreereeess 1

Juriadiction. 2... eee eet eee seen cece ren neeees 2

Questions presented .......---s-seeereee: Bret ee rennet 2

Federal Rules of Civil Procedure involved .....----- 2

Statement of case ....--.------s errr errs 3

Argument .......----ssesererrsersst vaxetns 3

I. The decision below is clearly correct ..-------- 3

A. Petitioner makes n° showing of an abuse of

discretion by the Da- trict err 4

B. Petitioner did not rely on Rule 86(e) in the

District Court ......-----e- ester etre 6

II. There are no ial and important reasons for

granting the Writ of Certiorari .....-..-----++: 8

CemeeMNOG ©... acces cn sccewscaseesecececenccesssess 9

AUTHORITIES

(asks :

Carr v. Shifflette, 65 App.D.C. 968, 82 F.2d 874 (1936) 6

Citizens Protective League v. Clark, 85 U.S.App.D.C.

282, 178 F.2d 703 (1949) .....--0- seer ese cee 5

Dick v. New York Life Insurance Co., 359 U.S. 437, 459

(1959) ...--- De a A ie i ceagheeedenefewe os 9

Foman v. Davis, 371 U.S. 178 (1962) .....----20e00:: 8

ls Young, 80 U.S.App.D.C. 395, 154 F.2d 13

(1946) ....------+-5> i oe EL AR Oe TS ee 5

McGrath v. Manufacturers Trust Co., 338 U.S. 241,

PAD (1949) ..-- eee eee eee ete eee 6

Nelson v. County of Los Angeles, 362 U.S. 1,9 (1960). 6

Ohliger v. United States, 208 F.2d 667 (2nd Cir., 1962) 6

State v. Newman, 36 N.J.S. 506, 116 A.2d 585, 587 (N.J.

Super. Re) reser 6

Van Huffel v. Harkelrode, 284 U.S. 225, 229 (1931) .... 6

Virginia Ry. v-. Mullens, 271 U.S. 220, 227 (1926) .... 6

Nth A ETRY Ae NE

all

il Index Continued

Page

FeperaL Ruxes or Crvi Procepure :

AI. vi ccncevecdececseccacucccsesescecenss 2, 4, 5, 8

PED ov c an eeeecenecsnnctadevnncvscunses 2, 3, 4, 5, 7

per rrrrrerer rrr rier ere ree 4, 5, 6,7

MISCELLANEOUS :

Advisory Committee’s Note accompanying 1963 amend-

ment to Rule 25, 31 F.R.D. 638 (1963) ............

iN THE

Supreme Court of the United States

OcToBER TERM, 1964

No. 971

Susm ANN GraHaM, Petitioner

Vv.

THE PENNSYLVANIA RalLroac “CoMPANY

and

THE WASHINGTON TERMINAL CoMPANY, Respondents

On Petition for a Writ of Certiorari to ‘he

United States Court of Appeals for the

District wf Columbia Circuit

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The Order of the United States District Court for

the District of Columbia and the Opinion of the United

States Court of Appeals for the District of Columbia

Circuit are set forth in the petition.

2

JURISDICTION

The jurisdictional requisites are adequately set forth

in the petition.

QUESTIONS PRESENTED

1. Whether the District Court’s discretionar. denial of

petitioner’s motions for enlargement of time (pur-

suant to Rule 6(b), Federal Rules of Civil Proce-

dure) and for substitution of parties (pursu._t to

Rule 25(a), Federal Rules of Civil Procedure),

which was of interest only to the parties, and based

only upon the particular facts before it, presents a

question of national importance.

2. Whether petitioner may properly assert, as a ground

for the granting of certiorari, a matter which was

not presented to the District Court.

FEDERAL RULES OF CIVIL PROCEDURE INVOLVED

In addition to those Rules set forth in Petitioner’s

Appendix C, the respondcnts submit Rule 6(b):

‘“‘When by these rules or by a notice given

thereunder or by order of court an act is required

or allowed to be done ax or within a specified time,

the court for cause shown may at any time in its

discretion (1) with or without motion or notice

order the period enlarged if request therefor is

made before the expiration of the period originally

prescribed or as extended by a previous order or

(2) a _— motion made after the expiration of the

ed period permit the act to be done where

failure to act was the result of excusable

neglect ; but it may not extend the time for taking

any action under ‘Rules 50(b), 52¢b), 59(b), (ay

and (e>, 60(b), and 73(a) and (g), except to the

extent and under the conditions stated in them.”’

3

STATEMENT OF CASE

David Graham, petitioner’s decedent, filed a com-

mon-law personal injury action against the respondents

on December 9, 1959 (JA 4). On May 17, 1963, David

Graham died, as was shown by the suggestion of death

filed in the District Court on July 24, 1963 (JA 9).

On J-.ly 30, 1963, counsel was advisel of the appoint-

ment of the petitioner as the sdministratrix of the

Estate of David Graham (JA 13).

On February 3, 1964, petitioner first m«ved for sub-

stitution in the place of David Graham (JA 9). On

February 7, 1964, respondents filed an opposition to

the motion for substitution, and also filed a motien to

disr.iss (JA 10, 11). On ¥Febrnary 13, 1964, peti-

tioner then filed a motion for the enlargement of the

sp ..fed time in Rule 25, as well as an opposition to

respondents’ motion to dismiss (JA 12, 13, 14).

After considering the various motions, oppositions

and arguments beiore it, the District Court entered

an order denying petitioner’s motion far substitution

and for enlargement of time, and granted the respond-

ents’ motion to dismiss (JA 14, 15).

The disposition of the case in the United States

Court of Appeals for the District of Columbia Circuit

is adequately set forth in the petitioner’s ‘‘Statement’”’

(Petition +).

ARGUMENT

I

The Decision Below is Clearly Correct

Petitioner’s claim, in essence, is that the derision by

the two lower Courts, based on the particular facts of

this case, was erroneous. However, petitioner now

seeks to change what was originally an appeal to the

4

discretion of the trial Court to a question of national

significance by attempting to make a showing of ‘‘in-

justice’’ in the misapplication of the 1963 amend-

ments to the Federal Rules of Civil Procedure by the

failure of the trial Court to use the ‘‘safety valve’’ pro-

vided by Rule 86(e). As will be discussed below, the

decision of the trial Court was manifestly correct

based upon the facts and circumstances before it, and

moreover, petitioner is not in a position to urge here

the application of Rule 86(e) because of her failure

to rely upon it below.

The petitioner cannot cireumvent the actuality that

this case turned upon its own particular facts, is of

consequence only to the parties, and involves no ques-

tion of national importance.

A

Petitioner Makes No Showing of an Abuse of Discretion by the

District Court

Although petitioner makes no reference to the ‘lis-

cretion of the District Court, the motions filed in that

Court (for substitution of parties and for an extension

of the 90-day periocé within which to substitute) were

a direct appeal to the discretion of the Court.

Because of petitioner’s failure to move for substitu-

tion within the 90-day period specified by Rule 25(a),

it was necessary that she obtain an extensicn or this

90-day period pursuant to Rule 6(b), for, as shown by

the Advisory Committee’s Note accompanying the 1963

amendment to Rule 25, found at 31 F.R.D. 638 (1963),

the motion for substitution may not be made after

the 90-day period, unless that period is extended pur-

suant to Rule 6(b).

a

A motion for extension of time to do an act, made

after the expiration of a specified time period, is ad-

dressed to the sound discretion of the District Court

upon a showing of excusable neglect pursuant to the

express provisions of Rule 6(b), (2).

The respondents submit that on the basis of the facts

and circumstances before the District Court, no abuse

of discretion was manifested. No attempt was made

by petitioner to substitute during the 90-day period

following the suggestion of death upon the record,

although she qualified as administratrix (with coun-

sel’s knowledge) within a week of the filing of said

suggestion. In fact, she made no effort for substitution

until more than three months had passed after the last

day of the 90-day time limit set by Rule 25(a).

The petitioner did not ask the District Court to

exercise its discretion and invoke the ‘‘safety-valve”’

provision of Rule 86(e). Instead, petitioner asserted

two grounds to appeal to the Court’s discretion under

Rule 6(b): First, her counsel was unaware of the

change in Rule 25(a) due to his rules service not being

up to date; and second, her counsel had been engaged

with other cases (JA 13, 14).

District of Columbia law has established that counsel

being engaged professionally in other matters does

not constitute excuse for negiect. Maghan v. Young,

80 U.S. App. D.C. 395, 154 F. 2d 13 (1946) and

Citizens’ Protective League v. Clark, 85 U.S. App.

D.C. 282, 178 F. 2d 703 (1949). As to counsel’s un-

awareness of the changes in the Federal Rules of Civil

Procedure, the language of the United States Court of

Appeals in its decisicn below is most appropriate (See

petitioner’s Appendix Al, pages A2, A3).

6

Other jurisdictions, federal and state, do not excuse

neglect on the basis of ignorance uf rules changes. See

Ohliger v. United States, 308 F. 2d 667 (2nd. Cir.,

1962), aud State v. Newman, 36 N.J.S. 506, 116 A. 2d

585, 587 (N.J. Super. A.D., 1955).

It is thus submitted that the District Court’s decision,

based upon the appeal made by petitioner to its discre-

tiou, was not erroneous.

B

Petitioner Did Not Rely Upon Rute 86(e) in the District Court

Petitioner’s reliance on Rule 86(e) was not made

to the District Court. As shown by the record, and

reflected in the opinion of the Court of Appeals below,

the papers in the District Court (JA 9-14) are totally

devoid of any reference to the applicability of Ruie

86(e).

This Court has held in the past that a party may not

seek review on a theory which was not advanced below.

Virginian Ry. v. Mullens, 271 U.S. 220, 227 (1926).

This rule hi.s been followed in the District of Columbia.

Carr v. Shifflette, 65 App. D.C. 268, 82 F. 2d 874 (1936).

This Court bas followed a long established policy of

not considering issues not presented below. See Van

Huffel v. Harkelrode, 284 U.S. 225, 229 (1931),

McGrath v. Manufacturers Trust Co., 338 U.S. 241,

249 (1949) and Nelson v. County of Los Angeles, 362

U.S. 1, 9 (1960).

Moreover, not only did petitioner fail to rely upon

Rule 86(e) in the District Court, but she affirmatively

acquiesced im the applicability of the 90-day time limit

provided by the 1963 amendment to Rvic 25(a), the

effect of which she now seeks to avoid.

set “ees

7

In the District Court, respondents asserted the ap-

plicabLity of the 90-day limit for substitution as pro-

vided by the 1963 amendments to Rule 25(a) (JA 11,

12). Petitioner, instead of contesting the applicability

of the 90-day period on the basis of Rule 86(e), spe-

cifieally asked the District Court for an enlargement of

the ‘‘specified time under Rule 25”’ (JA 12). Peti-

tioner made further reference to the 1963 amendment

to Rule 25(a) (JA 13) and, in fact, suggested to the

District Court that the 90-day provision appeared to

be self-erecuting (JA 14).

The respondents submit that on the basis of the

record, it is manifest that petitioner not only failed to

assert Rule 86(e) in the District Court, but affirma-

tively acquiesced in the application of the 90-day time

limit set by the 1963 amendment to Rule 25(a).

If the petition in this case were to be granted, it

would invite the future filing of petitions im a vast

number of cases of importance only to the particular

litigants, involving only the review of discretionary

decision= of the District Courts, and lacking of all

general or national significance or interest. Also in-

vited would be those litigants who, having failed in the

tria] Courts, would feel free to raise new theories and

issues, notwithstanding their acquiescence with Rules,

Statutes, or ease law in the trial Court. The respond-

ents submit that the certiorari jurisdiction of this

Court should not be used for this purpose.

f

8

Trxsee Are No Special Important Reasons for Granting

the Writ of Certiorari'

Notwithstanding the fact that petitioner has failed

to present any constitutional question, failed to show

any conflict of decisions, and failed to show that an

important question of federal law is involved, she

argues that an injustice resulted ‘‘as a misapplication

of the July 1, 1963 amendments to the Federal Rules of

Civil Procedure’’. This argument is made here despite

the fact that petitioner never urged this argument in

the District Court, and in fact, affirmatively acquiesced

to the application of the 1963 amendment.

Petitioner fails to reeognize the discretionary /une-

tion of the trial court, particularly on her motion for

extension of time pursuant to Rule 6(b). As has been

earlier noted, the United Stataes Court of Appeals

below was well aware of the District Court’s discre-

tionary power, as well as its own function of review

to determine if there had been an abuse of that dis-

cretion (Petitioner’s App. Al-A6).

Petitioner does not aid her cause by her reference to

Foman v. Davis, 371 U.S. 178 (1962). In that case,

this Court was dealing with technical missteps con-

cerning the timc!y filings of notices of appeal, and did

not concern itself with a situation of neglect such as

the instant case, where the petitioner did nothing to

secure the relief she desired, and then, after the speci-

fied time had long since elapsed, failed to show any

adequate excuse for her neglect.

This ease is of no importance save to the parties. It

concerns no nation! issue. It involves a discretionary

decision based upon the particular facts involved and

9

will not serve as a precedent. Once concluded, it will

lack further significance. A grant of the writ of cer-

tiorari here would only invite lawyers to seek review

of the thousands of discretionary rulings made by the

_ District Courts under the Federal Rules of Civil Pro-

cedure, changing their grounds and theories as they

pass each stage of appellate review. Members of this

Court have noted that ‘‘the litigous tendency of our

people and the unwillingness of litigants to rest cuntent

with adverse decisions after their cause has been liti-

gated in two and often in three Courts, lead to attempts

to get a fine! review by the Supreme Court in literally

thousands of cases which should never reach the high-

est Court of the land’’. See Mr. Justice Frankfurter,

dissenting in Dick v. New York Life Insurance Co.,

359 U.S. 437, at 459 (1959). The respondents submit

that this is such a case.

CONCLUSION

For the foregoing reasons the petition for a writ of

certiorari should be denied.

Respectfull; submitted,

THOMAS A. FLANNERY

916 Union Trust Building

Washington 5, D.C.

STEPHEN A. TRIMBLE

916 Union Trust Building

Washington 5, D.C.

Of Counsel :

HAMILTON AND HaxwGLTON

916 Union Trust Building

Washington 5, D.C.