Brief for the Respondent in Opposition — Transit Casualty Co. v. Security Trust Co.

in the

Supreme Court

of the —

— EAnited States

OCTOBER TERM, 1971

NO. @1-228

TRANSIT CASUALTY iias condaertaet ET AL.,

_ Petitioners,

Us.

SECURITY TRUST COMPANY, ET AL., )

“ Respondents.

- BRIEF OF RESPONDENT SECURITY TRUST’

COMPANY IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE -

UNITED STATES COURT OF APPEALS

' |. FOR THE FIFTH CIRCUIT

JAMES A. DIXON

700 Roberts Building.

- Miami, Florida .33180°

"and :

SAM DANIELS

- 1414 duPont Building

Miami, Florida 33131

- Attorneys for Respondent

Security Trust Company

MIAMI REVIEW — 371-4853 — 377-3721

he

INDEX

| Page

OPNUONS BELOW 2: ee

SURMINCTICR 20 ee

QUESTION PRESENTED... | = ee

FEDERAL RULE OF CIVIL

PROCEDURE INVOLVED occcsooc ovens eae

_ STATEMENT OF..THE CASE .. | 5-18

Events Leading Up To Order of September

66, MN ee

District .Court Proceeding After Denial Of

Interlocutory Appellate Review ........002.0.. ber 9

The Dismissal With et For Failure To

Obey The Court’s Order .. saRtastenlocctae cates ane

Court of Appeals’ Ruling That Dismissal

Should Be Without Prejudice 2... yen _ 11-12

_ Entry of Order On. Mandate And Denial Of

Certiorari .............. eeehuntar afeel am ieee 12 -

Rule 60 Pectuctthis In District Court ............. . 17

' Opinion of Court of Appeals Below ........ 17-18

. REASONS FOR DENYING THE ‘WRIT ....220:.° 19-20.

CONCLUSION fo =

CERTIFICATE OF SERVICE 22

INDEX OF CASES CITED

Case | Page

Corn v. Guam Coral Company, |

(Sth Cir.3963), 318 F.2d 622 =. 19

Federal Trade Commission v. Minneapolis-

‘Honeywell R. Co.,

1 8 SRE eee Pr indo na Dea 19

_ Goldfine v. United States, ete ;

(ist Cir.3964).326 I'.20 456 «2s. 20

- McDowell v. Celebrezze, |

' (5th Cir.1962), 310 F.2d 48 ....... ret 20

-Nyssonen vy. Bendix Corporation,

(Ist Cir.1966), 356 F.2d 193, 385 U.S. 846 0. 19

‘ OTHER AUTHORITIES CITED

F.R.C.P., Rule 60(b) ne nnnrnnsninn By By 4-5, 18, 15, 19, 20

7 MOORE’S FEDERAL PRACTICE, § 60,223) Pan 20

7 MOORE’S FEDERAL PRACTICE, § 60.28(2) .... a

28 U.S.C., § 1254(1) iene Pei aOR LEE 2

in the

| Supreme Court

of the

— Guited States

- OCTOBER TERM, 1971

NO. @1-22

TRANSIT CASUALTY COMPANY, ET AL.,

Petitioners,

vs

SECURITY TRUST COMPANY, ET AL., /

Respondents.

"BRIEF OF RESPONDENT SECURITY TRUST .

COMPANY IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT |

- _ Petitioners pray that a writ of certiorari issue to.

review the judgment below of the United States Court

of Appeals for the Fifth Circuit.

PR RR RAMS bo net iby Reet BLS

4

OPINIONS BELOW

The Court of Appeals’ opinion here sought to be

reviewed is reported at 441 F.2d 788. Its subsequent

Order on Petition: for Rehearing and ‘Petition for Re-

hearing En Banc is unreported but reproduced as Ap-

pendix C to the petition for a writ of certiorari. The

: order of the United States District Court for the South-

ern District of: Florida which was affirmed below ‘is

‘unreported but reproduced as: Appendix A to the peti-

tion for a writ of certiorari. The foregoing opinions

were rendered in the present Rule 60(b) proceedings.

- Before the Rule 60(b) proceedings were commenced,

there were prior opinions rgndered and reported in the.

causes at 372 F.2d 441; 396, F.2d 803; and 399 F.2d 665, .

cert. den. 393 U.S. 1024. paar

| .

: JURISDICTION

. Jurisdiction of this Court is invoked under 28 U\S.C.

§ 1254(1). The original opinion-of the Court of Appeals

is dated April 1, 1971. Petitioners’ timely petition for

rehearing was denied on May 28, 1971.

“QUESTION PRESENTED

i e ° ° e ° “ e =

Did the. Court of Appeals err in affirming the dis-

trict -court’s finding ‘and holding that petitioners’ mo-

tions for relief under Rule 60(b) were not timely filed

when:.

a

: a.

Ve 2 ‘ ees) ht Aint Ch NS TR PRG SAE EB AS RSI

‘The motions were filed on July 1, 1969, and ©

alleged a “typical case of mistake and noth-

ing more” within the méaning of Rule

.60(b) (1); and

The motions sought relief from. prior dis-

missals of the causes without prejudice for’

failure to obey a court order which had the —

‘following procedural history:

On July 12, 1967, the causes were dis-

* missed with prejudice by the district

court for failure to obey a court order, .

On appeal, the dismissals were affirmed

but modified so as to be without preju-

dice. The Court of Appeals’ original

opinion was rendered on June 28, 1968;

- and its opinion on rehearing was ren-

dered on August 29, 1968.

On September 10, 1968, the district court

entered an order dismissing the causes

without’ prejudice in accordance with the

appellate mandate. ~

On January 13, 1969, this Court denied

certiorari?

4 t

FEDERAL RULE OF CIVIL, PROCEDURE»

INVOLVED. |

Federal Rule of Civil Procedure 60 provides: .

“(a) Clerical Mistakes. Clerical mistakes ‘in .

judgments, orders or other parts of the record .

and .errors therein arising from oversight or |

omission. may be corrected by the court at any ~

time of its own initiative or om the motion of any

party and after such notice, if any, as the court

orders. During the pendency-of an appeal, such

mistakes may be so corrected before the appeal

is docketed in the appellate court, and ‘there- .

after while the appeal is pending may be so

corrected with leave of the appellate court.

(b) Mistakes; Inadvertence; Excusable Ne-

glect; Newly Discovered Evidence; Fraud, ete.

On motion and upon such terms as are just, the —

court may relieve a party or his legal representa-

tive from a final judgment, order, or proceeding

‘ for the following reasons: (1) mistake, inadvert-

ence, 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 i is void; (5) the

judgment has been satisfied, released, or dis-

charged, 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

2

ee eee

5

_ 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 proceeding was entered or taken. A

motion under this subdivision (b) does not affect

the finality of a judgment or suspend its opera-

tion. This rule-does not limit the power of a

court to entertain an independent action to re-

lieve a party from a judgment, order, or pro-

ceeding, or to grant relief to a defendant not

actually personally notified as provided in Title

28, US.C., § 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 rales or by an aie cacamaee

action.”

STATEMENT OF THE CASE

_ Petitioners, as plaintiffs below, filed two suits in the

United States District Court for the Southern District of

Florida (R. 12-75, 261-284)*. The complaints sought to re-

cover damages from the respondent, Security Trust

Company, because of tlie latter's alleged mismanagement fe

1 ;

. *“R” refers to the printed record used on both appeals in the

Court of Appeals below. “A” refers to the printed Joint Appendix

used in the second appeal below.

6

of McKinley & fae McKinley & Cétinpany was al-.

leged to have gone insolvent after entering into separate

management agreements to act as manager for various

insurers in the writing of certain types of insurance.

The named plaintiffs in each case were foreign in-

surance companies authorized to do business in Florida:

In each case, plaintiffs sued “to their own use and to the

use of” certain other insurers similarly situated (R. 12-13,

261-262).: After some preliminary procedural sparring»

had occurred, the district court entered an order on Sep-

- tembér 14, 1966, which provided in pertinent part:

“1, Plaintiffs shall within ten (10) days here-

after amend their complaints so as to -include

as parties Plaintiff all members of the alleged

class who have retained counsel for the Plaintiffs

'_ to represent them in these two cases.” (R. 179).

aids <a nein UP. To Order Of ‘September 14, 1966

The events vidio: up to the order of September 14,

1966, are shown at R. 76-175. These events are fairly sum-

marized in Transit Casualty Company v. Atkins, (5th

Cir. 1967), 372 F.2d 441, 441442, where the Court of Ap-

peals declined interlocutory review of the order, stating:

“The facts underlying both of these proceedings

~_are: The complaints were brought by two named, °

parties plaintiff and seek damages against Se- ~—

curity Trust Company, not only for themselves,

but presumably for the benefit of 24 other in-

‘surance companies allegedly similarly situated.

7

_The complaints did not -state in what way the

class members were so numerous that joinder

- of all was impracticable; nor was it alleged what

questions of law or fact were common as between

the defendant, Security Trust Company, and all

the quasi plaintiffs; nor was it shown how a class —

action was superior to other available methods

for the fair and efficient adjudication of the —

controversy.’ Security Trust, in its answers, .

specifically denied all allegations as to the al-

leged class claimed to be represented; denied .

that it was impracticable to bring all of the al- °

leged members of the class before the court; and

denied that the two party plaintiffs fairly. rep-

resented the interests of the entire class. In the

course of discovery, after answers were filed, the

attorneys for Security communicated by letter

with some of the 24 absent members of the al-

_leged class seeking information as to their knowl-

edge of having been named as members. The’

communications also concerned the taking of dis-

covery depositions. Thereupon, the attorneys

for the plaintiffs notified Security’s counsel to

cease and desist communicating directly or in-

directly with the clients represented by them.

They filed before the district judge a motion to

enjoin and prohibit any such communication, and

in that motion charged counsel for defendant

with unethical conduct in attempting to com-

municate directly with the absent members of

the class. Presented with a claim by the attor-

neys for the plaintiffs that the: attorney-client

relationship existed between them and the non-

ee

party class members, and a charge of unethical

conduct leveled at counsel for defendant, the

Court had-the problem of determining tlie jural

relationship of the members of the class, not

only to the plaintiffs hut to each other, and to

the subject matter of the litigation, as well as

to the counsel for plaintiffs. In an apparent ef-

fort to assemble information to assist him in de-

-termining these relationships, the District Judge

entered the order of September 14th. Plaintiffs

argue that. the writs should issue because the

order requires the joinder of additional plain-

defendants, and that this will destroy diversity -

and will divest the federal court of jurisdiction.

Irrespective of the correctness of the order be-

low, it is apparent that this case is not in an.

appropriate stage for appellate review. The Dis-

trict Court is in the middle of a housekeeping

‘operation. It has not reached a determination

of the merits in any respect, and the order here

sought to be reviewed does not define the rights

of any party. It is not clear what the precise

effect of the order will be on the outcome of

the litigation; nor what subsequent decree, either

dismissing the case or permitting them to pro-

ceed as a class action, will define their

rights. .

Q

| District Court Proceeding After Denial of Interlocutory

Appellate Review

After the Court of Appeals‘held it had no jurisdic-

tion to review the interlocutory order, the district court

granted petitioners additional time to comply. with the

order (R. 185-186). Finally, on May 9, 1967, petitioners

amended their complaints in supposed compliance with -

the September 14th order, but merely added certain for-

eign corporations as named plaintiffs and named none of

the Florida corporations they admittedly _Fepresented

filed : an affidavit to the effect that the Florida members

of the class had “elected to remain in that- capacity”

(R. 228).

The Dismissal With Prejudice for Matlure to Obey The °

Court’s Order

The district court’s Order of Dismissal provides in’

pertinent part as follows: tear

a Notwithstanding the pemating of two

centtunatisi to the plaintiffs to comply with

the order of September 14, 1966, plaintiffs, in

the opinion of this Court, havé failed to comply

therewith. The Amendment to the Complaint

filed on May 9, 1967 in an effort to comply with

the order of September 14, 1966, conspicuously

fails to include three Florida corporations which

the plaintiffs have represented to this Court,

as well as the Appellate Court—the Fifth Cir-

cuit Court of Appeals—to comprise members of

10

the ikea class which must be named pursuant

to the Order of September 14, 1966, since ‘they ~

were legally represented by counsel for the

plaintiffs. As argued by-counsel for the de-

fendant, a failire to name these corporations

constitutes a failure to comply with the order

of September 14, 1966.

3. This Court expressly notes that at the time

of the hearing on this motion no determination

had been made as to whether this action is prop-

erly maintainable as a class action. In this re-

gard, the posture’ of this case at the time of the

hearing was the same as when the order of Sep-

tember 14, 1966 was entered. This Court, then,

as now, as noted by the Fifth Circuit Court of

Appeals, was engaged in a ‘housekeeping’ opera-

tion with a view to determining whether this

action is properly maintainable as a class action.

A full and good faith compliance with the order

of September 14, 1966 was also necessary in

order for this Court to determine the jural rela-

tionships of all interested parties among them-

selves as well as theii* relationship to the subject

matter of the litigation and discovery processes

incident thereto.

4. .'The Amendment together with counsel’s af-

fidavit of compliance does: not respond to the

Court’s order of September.14, 1966 and instead

of facilitating a disposition of the matters set

forth in the complaint it serves to frustrate and ©

; hamper this Court’s effort to resolvé-the perti-

nent issues.

11

5. The Court expressly finds that the plaintiffs

have failed to comply with the order of Sep-

tember 14, 1966 as they were ordered to do. It —

Is Therefore; Ordered And Adjudged, that this

cause be and the same is hereby dismissed with

prejudice pursuant to Rule 41(b} and that ‘the

Defendant, Security Trust Co. go hence without

day with its costs as may. hereafter be taxed upon

motion. »..-”. (R, 229-231).

Court of Appeals’ Ruling That Dismissal — Be

~ Without eases ; \

In its initial opinion at 396 F.2d 803, the Court. of

Appeals states:

*... We agree with the order of dismissal by

the district court, but vacate that part of the

order making the dismissal with prejudice and

remand with instructions to enter the. order

_ without prejudice.”

_ In its Order on Petition for —. at 399 F.2d

665, the Court. of Appeals states:

“... For rehearing, appellants urge two prin-

ciple points, both of which deal again with the

merits or demerits of the District Court’s’ order

in attempting to define the parties to be in-

cluded within the appéllants’ class action. Again

appellants overlook that really the only issue on

appeal is the compliance vel non with the Dis-

trict Court’s order of September 14, 1966, and,

> ape a

having four? a failure of compliance on the part :

of appellants,.the District Court’s judgment of

dismissal was affirmed with directions that the

order be entered without prejudice as set out in |

our Per Curiam of June 28, 1968. This Court will

. - Not modify its previous ruling despite any Flor-

ida law claimed by appellants which may or may

-not bar a rie cause of action_in any fu-

ture suit. ay ale iy Ss

2

ee of Order On Mandate and Denial of Certiorari

e

The Court of Appeals’ denial of the: fetition for re-

hearing on August 29, 1968, was foll lowed on September

10, 1968, by the district court’s entry of a dismissal with-

out prejudice in accordance with the appellate mandate

(A. 333-334). Thereafter, on January 13, 1969, this Court

denied certiorari. 393 US. 1024.

Rule 60 —— In anaeatet pias ;

On aa 24, 1969, over six x months after the Cagis

denial of certiorari, the Court of Appeals granted peti-

tioners leave to file a Rule 60 motion stating:

. However, the granting of this leave to file

said motion is not to be construed for or against —

the merits of the plaintiffs’ Rule 60 motion.’

(A. 398).

On July | 1, 1969, petitioners filed their Rule 60 mo-:

tion in the district court which was styled “Joint Motion

for Plaintiffs and Class meats for Relief = oe

13 Pore re

. ments, ‘Pursuant: to Rule 60(b) (6) of the Federal Rules

_ of Civil Procedure.” (A. 340-345). In their joint motion,

petitioners requested that the: dismissal without preju-

dice be vacated so that dismissals without prejudice “and

with leave to filé amended complaints” could be entered

(A. 345). .

- In Paragraph 7 of the Joint Motion, petitioners ex-

plained their failure to comply :with the September 14th

order and their grounds for vacating: the prior dismissal

without -prejudice as follows:

; “7, The circumstances leading to the .order of

dismissal of July 12, 1967 involved the failure

of plaintiffs to join as parties four Florida cor-

- porations whose. joinder would have concomit-

antly destroyed diversity and federal jurisdic-

tion. The failure to join the Florida companies

arose from.a bona fide misunderstanding of the

order of September 14, 1966 and a procedural

pone occasioned by the July 1, 1966 amend-

nt to Rule 23 altering the character of these

actions (which had originally been filed as class

actions determinable from the face of the plead-° - -

ings) so as to render them without classification _

until an ‘order of Court, pursuant, to Rule

~ ., 23(e)(1) had been entered. The-order cf Septem-

ber. 14 admits of two interpretations and the

interpretation taken by counsel for the plaintiffs Bens

was that all’members of the class were required

to be joined as parties, pursuant to paragraph

1 of said order. The decharacterization effect of

the July 1 — to fale 23 was such that

, 14

the amendment to the complaints, which counsel |

believed to be required: by paragraph 1 of the °

September 14 order, would have defeated federal

jurisdiction in a manner inconsistent with the

applicable provisions of Rule 19 and 20. Thus,

counsel in an attempt to preserve federal juris-

diction was caught in the cross-fire of confusion

between Rule changes and an order of this Court

which seemingly-embraced elements of both the

old and the amended Rule... . ” (A. 342).

_ Two weeks later, petitioners’ counsel filed. a memo-

randum in support of the joint motion in which they ex- —

panded the grounds for relief by claiming that they had .

in fact complied with the September 14th order because

they had actually’ not been “retained” by the Florida «

corporations they failed to name as plaintiffs (A. 353-

- 856). As noted, supra, the district court found to the

contrary when it entered the initial dismissal with prej-

udice (A. 229-231); and its finding in this respect was

affirmed by the Court of Appeals on the prior. appeal. —

The prior findings that petitioners did not comply

with the. September 14th order: could have come as no

surprise since they had previously admitted that the order

required them to name the Florida corporations as plain-

tiffs. Thus, petitioners’ counsel anmitted ‘in the district

court that:

(Furthermore, three of the corporations that

we do represent are Florida corporations. One

of them is General Guaranty of Orlando. The

full name of that corporation is General Guar-

» + ee + RIE TE Oy) ERE RP Cn

(15

anty Insurance Company of Orlando. Three of

the corporations that are Florida corporations .

that we}represént are General’ Guaranty Insur-.

, we

ican Firé gnd Casualty Company: of Orlando; and

pany.of Winter Park, Florida; Amer-

Carolina’ Casualty Company of Jacksonville,

Florida.” (R. 253. Cf. 229-230).

Moreover, ‘in their. “Brief-of Petitioner” before the

Court of Appeals in the prior ‘mandamus and prohibition

proceedings, petitioners stated:

“On September 14, 1966 the trial court sua

sponte entered an order requiring that the com-

plaint be amended so as to add-as additional par-.

ties plaintiff all members of the class who have

retained counsel for the plaintiffs to represent

_them in the case. (Exhibit C). It is undisputed

that four (4) of the companies whose : ‘joinder

’ would be required under this ruling are Florida

_ corporations. (Exhibit F). The ‘defendants like-

»

wise are -Florida residents.” ( Brief. For Peti-

tioner, p. 2). :

oe

On November 19, 1969, the district court denied the

Rule 60 motions’as untimely filed (A. 448-450).

trict court found that, “The pleadings indicate the typi-

cal case of mistake and. nothing more.” (A. 449}.

ing and holding that the motions were untimely, the ‘dis-

trict court reasoned & follows: |

“Rule 60(b) (1) must be ial within a reason-

able time not to exceed one year ‘from the date

of the order from which relief is sought. Plain- —

‘

The dis-

-In find-

3,

q ’

res

16

tiff feels that the time should run from Order

on Mandate dated September 10, 1968. It is as-

‘Serted that the time runs from.a: substantive :

change in the order. The cases cited by Plain-

tiffs are not authoritative since they deal with

the time limit for appeals. In fact, the case most

strenuously urged by Plaintiff argues to the con-

trary result. Federal Trade Commission ae

Minneapolis- Honeywell Regulater Company, 344

U.S. 206 (1952). The decision of the- Fifth Cir-

cuit in the present case did cause a substantive ©

’ change in that it reversed the dismissal ‘with

prejudice.” However, the aspect of the order that

was so vitally important to Plaintiffs was the dis-

missal itself. The complaint: remained dismissed.

As far as Plaintiffs stood they remained as they

were at the time of the July Dismissal Order. It

cannot be said that in context ‘this was a sub-

stantial modification. The Court is compelled to

the conclusion that it is the July Dismissal Order .

that Plaintiff seeks relief from and the time limit

must run from.that date unaffected by the Order

on Mandate. °

A reasonable time is usually construed: as the

time allowed for appeal. McDowell v. Celebrezze,

210 F.2d 43 (5th Cir. 1962); 7: Moores Federal

Practice, Para. 60.22[3](2nd ed. 1955). How-

ever the prosecution of an appeal does not bar .

the application to the District Court for relief

pursuant to Rule 60(b). Ferrell v. Trailmobile,

Inc., 223 F.2d 697 (5th Cir. 1955). Plaintiff

should have sought relief in this Court within

17 -

one year of the Order of July 12, 1967. An ap-

peal does not toll the one year time limit. Al-

though the Petition for Rehearing had not been

denied, the decision -of-:the Fifth Circuit had

been rendered leaving sufficient time to file the..

motion here under consideration which was filed

July 1, 1969. It is therefore

Ordered and Adjudged that Plaintiffs’ Motion

for Relief Pursuant to Rule 60(b)(6) be treated |

as a motion pursuant to 60(b)(1) and as such be

denied as being untimely filed... . ”- (A. 450).

"Opinion of Court of Appeals Below

In affirming the district court, the.Court of Appeals

agreed “with the District Court that this is a typical case

of mistake and nothing more.” 441 F.2d at 792. Having

so agreed, the Court of Appeals concurred in the district

court’s findings and holding that the motions were not

filed within the one year period prescribed in Rule

60(b) (1) saying at 441 F.2d 791: 2

“Although plaintiffs ignakind from the order of .

dismissal, such appeal does not toll the time -for:

making a 60(b) motion. This is because such mo-

tion can be made even though an appeal has been

taken and is pending. Corn v. Guam Coral Co.,

318-F.2d 622 (9th Cir. 1963); Ferrell v. Trailmo-

bile, Inc., 223 F.2d 697 (5th Cir. 1955); 7 Moore,

Federal Practice, § 60.28[2] (2d Ed. 1970). If

_ the appeal results in a substantive change, then

18

the time would run from the substantially modi-

fied order entered on mandate of the appellate

court. Federal Trade Commission v. Minneapo-

lis-Honeywell Co., 344 U.S. 206, 72 S.Ct. 245, 97

"L.Ed. 245 (1952). The decision of our Court on_

the appeal did not cause a substantive change

in that the dismissal was merely changed to be

without’ prejudice. As far as this suit was con-

cerned, after the entry of the order on the man-

date on September 10, 1968, the plaintiffs stood

in the exact position as they did on July 12; 1967.

As far as their claim was concerned, the appeal

deter mined that the dismissal would not act

as a bar to another suit in this or another forum,

but as to pursuing the cause of action in this suit,

the complaint remained dismissed. Changing a

dismissal with prejudice to a dismissal without

prejudice is not such a substantial substantive

change as to renew the right of plaintiffs to

. bring a motion for relief under Rule 60(b), F.R.

Civ.P., or extend their time for filing such a

motion.

“The District Court correctly held that the time

for bringing the 60(b) motion for relief from

the dismissal of the ee, began on July 12,

1967.”

19

REASONS FOR DENYING THE WRIT

1. Petitioners concede at page 22 of their petition

that there is no decision in conflict with the holding below

that the Rule 60(b)(1) one year time period was not

tolled by the subsequent appellate proceedings. What little

authority there is, is in accord with the holding below.

Corn v. Guam Coral Company (9th Cir. 1963), 318 F.2d —

622, 629; Nyssonen v. Bendix Corporation (1st Cir. 1966),

356 F.2d ae cert.den. 385 U.S. 846; 7 Moore’s Foderhl

Practice, § 60.28(2), p. 320, fn. 37.

2. The decision, below is correct and in probable ac-

cord with this Court’s prior decisions. See, Federal Trade

Commission v. Minneapolis-Honeywell R. Co., 344 U.S:

3. Since both courts below found and held that -pe-

titioners’ motions presented a typical case of mistake and

nothing more, the record raises no issue concerning what

result should obtain when a motion for relief also pre-

sents “any other. reason” within the meaning of Rule

60(b) (6). Indeed, the concluding paragraph of the Court

of Appeals opinion below states:

“Nevertheless, the District Court further con-

sidered whether any other reasons brought

. plaintiffs within the broad equitable power of

Rule 60(b) (6), which could be invoked to pre-

vent extreme -hardship or injustice. Barron &

* Holtzoff (Wright Edition) § 1330, p. 426 (1958).

"The Court determined that ‘the situation’ here

is not the type that justifies such an extreme’

> ee

20

exercise of discretion.’ Our review of the rec-

ord reveals no other reasons which-would com-

pel the court to exercise its discretion in grant-

ing relief or would show any abuse of discretion

in denying relief.” 441 F.2d at 792. ° .

4. Even if petitioners’ motions are treated as aris-

ing under Rule 60(b)(6), it is clear that they were not

-made “within a reasonable time”. The motions were‘ —

_ made two years after the original dismissal; more than

a-year after the Court of Appeals’ first opinion on appeal;

_ and six months after this Court’s denial of. certiorari.

During the entire time, the only thing that happened was

that petitioners were told again and again by one court

_after another that their cases were properly dismissed

for failure to obey a court order. Cf. Goldfine v. United

. States (Ist Cir. 1964), 326 F.2d 456; McDowell v. Cele-

brezze (5th Cir. 1962), 310 F.2d 43; 7 Moore's Federal

Practice, § 60.22(3), p. 238.

21

CONCLUSION

It is respectfully: submitted that the petition for a

writ of certiorari to the United States Court of Appeals

for the Fifth Circuit. = be denied.

Respectfully caheibted,

JAMES A. DIXON

700 Roberts Building

Miami, Florida 33130

and .

SAM DANIELS

1414 duPont Building

Miami, Florida 33131

Attorneys for Respondent

Security Trust Company

By __

Sam Daniels

oe se

CERTIFICATE OF SERVICE

_I HEREBY CERTIFY that in accordance with Su

preme Court Rule 33, true copies of the foregoing were

mailed on this —_.. day of September, 1971, to the fol-

_ lowing counsel of record:

E. BARRETT PRETTYMAN, JR.; ESQUIRE

. PETER F. ROUSSELOT, ESQUIRE

815 Connecticut Avenue

Washington, D. C. 20006

GEORGE P. BOWIE, “ESQUIRE

. 901 Washington Avenue

St. Louis, Missouri 63178

SAMUEL J. POWERS, JR., ESQUIRE

First Federal Building —

Miami, Florida 33132.

MacFARLANE, FERGUSON, ALLISON & KELLY

P.O. Box 1581 - ,

Tampa, Florida 33601.