Petition for Writ of Certiorario — Arrow Packing Co. v. Atchison, Topeka & Santa Fe Railway Co.

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Sudreme Court, U.S

it i Y iD D

No. - MAY 20 1992

: OARGE OF THE GLERK

In the

Supreme Court of the United States

OCTOBER TERM, 199]

VARIOUS RECEIVER-PLAINTIFFS.

PETITIONERS,

VARIOUS RAILROAD-DEFENDANTS,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Morris M. GOLpDINGsS

Counsel of Record

RICHARD S. Jacoss

MAHONEY, HAWKES & GOLDINGS

40 Rowes Wharf

Boston, Massachusetts 02110

(617) 439-7600

Counsel for Petitioners

BATEMAN & SLADE, INC BOSTON, MASSACHUSETTS

¥. Pin ltd 9 ARE NOI ET

QUESTIONS PRESENTED

[. Whether 31 individual plaintiff-petitioners shall be de-

prived of their constitutional rights under the due process clause

by virtue of the erroneous, unprincipled and discriminatory

dismissal of 1700 freight damage cases by the District Court

prompted by the unreasonable fear that docket congestion

might cause unacceptable delays in the disposition of other

cases, and because of the resultant “distortion of statistics.”

The dismissals were predicated upon the transparently specious

guise of want of prosecution.

I]. Whether the District Court for the District of Massachu-

setts, having erroneously rebuffed every effort by the plaintiff-

petitioners to restore to the active docket 1700 freight damage

cases administratively closed in 1980, by the purposeful disre-

gard of the plain language of the rule under which they were

closed, Rule III(H) of the Administrative Office of the Judicial

Conference of the United States, may wrongfully and abusively

apply Local Rule 41.1(b)(1) for the sole purpose of dismissal

of the cases under the transparently specious guise of want of

prosecution.

iii

PARTIES

Receiver-Plaintiffs

Arrow Packing Co.; Boston Celery Co.; Boston Tomato

Co., Inc.; B&R Produce; Community Suffolk, Inc.; Charles

P. Sweeney d/b/a Sweeney Co.; D’ Arrigo Bros., Inc.; Fein-

berg Co.; Felix Rocco Co.; Forlizzi Bros., Inc.; J.R. Freni:;

Frontier Produce Co.; Gilfenbain Bros., Inc.; W.H. Lailer

Co.; Lampros Bros., Inc.; Matarazzo Bros. Co.; MarcoTomato

Co.; Manhatten Tomato Co.; Mid N.E. Produce, Inc.; Nathan

Warren and Sons; New England Farms; Prince Tomato Co.:

A. Pelligrino & Sons; Royal Tomato Co.; Rodes & Sons Co.;

Sawyer & Co.; A.J. Sarno d/b/a Sunlight Tomato, Co.;

Stillman Produce Co.; Sunshine Tomato Co.; Tourtellot &

Co.; William J. Canaan.*

Railroad-Defendants

Atchison, Topeka & Santa Fe Railway Co.; Bangor &

Aroostock R.R.; Boston & Maine Corporation; Burlington

Northern Line; Central Cal. Traction Co.; Chicago, Mil-

waukee, St. Paul & Pacific; Consolidated Rail Cor.; Florida

East Coast Railway Co.; Holton Interurban; Illinois Central

Gulf R.R.; Northwestern Pacific; Penn Central Transportation

Co.; San Diego & Arizona Eastern; Seaboard Coastline Rail-

road Co.; Santa Maria Valley; Southern Pacific Transportation

Co.; So. San Luis Valley R.R.; Stockton Terminal & Eastern:

Sunset Railway; Texas Mexican Railway Co.; Trustees N.Y.

N.H. & Hartford.

* As testified by the Chief District Judge for the District of Massachusetts

at United States Senate hearings in 1975 (infra), “The plaintiffs are the

wholesale distributors of fruits and vegetables for Massachusetts and New

England. Substantial distributors on the wholesale top level are involved.”

App. 15.

TABLE OF CONTENTS

Questions Presented

Parties

Table of Authorities

Opinions Below

Jurisdiction

Constitutional Provision Involved

Rules Involved

Statement of the Case

Reasons for Granting the Writ

I. This Court Should Grant Certiorari to Explicate

the Plain Meaning of the Automatic Re-Opening

Provision of the Rule of the Judicial Conference

of the United States on Administrative Closings

of Cases, and to Require District Courts to Adhere

to It.

If. This Court Should Grant Certiorari to Instruct

the Judiciary That Increasing Tension Between

Docket Congestion and the Integrity of the Judicial

Process Must Be Resolved in Favor of the Rule of

Law.

Conclusion

Appendix follows page 21

TABLE OF AUTHORITIES

Cases:

Applebaum v. Ceres Land Co., 546 F.Supp. 17 (D.

Minn. 1981) 19

Blanchette v. Cataldo, 734 F.2d 869 (1st Cir. 1984) 1]

Condakes v. Southern Pacific Co., 295 F.Supp. 121

(D. Mass. 1968) 7

Condakes v. Southern Pacific Co., 303 F. Supp. 1158

(D. Mass. 1968) 7

Feif v. A.H. Robbins, 90 F.R.D. 526 (E.D. Penn.

1981) 19

Frazier v. Heebe, 482 U.S. 646 (1987) 15

Freed v. Braniff Airways, Inc., 119 F.R.D. 10 (S.D.

N.Y. 1987) 18

Hickman v. Taylor, 329 U.S. 495 (1947) 15

Johnson v. Rogers, 917 F.2d 1283 (10th Cir. 1990) 18

Jones v. Shell, 572 F.2d 1278 (8th Cir. 1978) 18

Link v. Wabash Railroad Co., 370 U.S. 626 (1962) 15

Markel v. Scovil Mfg Co., 657 F.Supp. 1102 (W.D.

N.Y. 1987) 19

Missouri Pacific R.R. v. Elmore and Stahl, 377 U.S.

134 (1964) 1]

RAAB v. Taber Instrument Corp., 546 F.2d 522 (2nd

Cir. 1976) 19

Rollins v. United States, 286 F.2d 761 (9th Cir.

1961) 19

S.E.C. v. Everest Management, 466 F.Supp. 167 (S.D.

N.Y. 1979) 19

ieee

Vil

TABLE OF AUTHORITIES (cont.)

Sarno, d/b/a Sunlight Tomato Co. v. Southern Pacific

Co., 277 F. Supp. 628 (D. Mass. 1967) 7

Schlagenauf v. Holder, 379 U.S. 104 (1964) 15,20

Sibbach v. Wilson & Co., 312 U.S. 1 (1941) 15

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336 (1976) 17,18

U.S. Industries, Inc. v. Blake Const. Co., 671 F.2d

539 (D.C. Cir. 1982) 18

United States v. Myers, 38 F.R.D. 194 (N.D.Cal. 1964) 19

Western Pacific R. Corp. v. Western Pacific R. Co..,

345 U.S. 247 (1953) 15

Statutes:

28 U.S.C. § 331 15

28 U.S.C. § 601 15

28 U.S.C. § 603 15

Rules:

Supreme Court Rule 10. 1(a) 20

Supreme Court Rule 16.1! 21

Guide to Judicial Policies and Procedures,

Rule III(H) 2,3n,10,15

Local Rule 41.1 3,13

Miscellaneous:

Hearing before the United States Subcommittee on Im-

provements in Judicial Machinery,

November 13, 1975 7,8,9,17

Vili

TABLE OF AUTHORITIES (cont.)

Ex Parte No. 263, 345 1.C.C. 515 (1972)

2B Barron & Holtzoff, Federal Practice and Proce-

dure, § 918, pp. 139-40

Wright & Miller, Federal Practice and Procedure:

Civil § 2370, p. 20

“The Supervisory Power of the Federal Courts,” 76

Harvard Law Review 1656 (1963)

No. -

In the

Supreme Court of the United States

OCTOBER TERM, 1991

VARIOUS RECEIVER-PLAINTIFFS,

PETITIONERS, ~~”

VARIOUS RAILROAD-DEFENDANTS,

RESPONDENTS.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Petitioners, Various Receiver-Plaiptiffs,' respectfully

pray that a Writ of Certiorari issue to review the Order of the

United States Court of Appeals for the First Circuit entered in

the above-entitled proceedings on February 21, 1992.

‘The Petitioners have been referred to in all captions and pleadings in the

courts below as “Various Receiver- Plaintiffs,” the Respondents as “Various

Railroad- Defendants,” and the 1700 cases which are the subject of this Petition

as the “Freight Damage Cases.”

A full list of the parties is provided at p. iii.

_——_,,_,__

OPINIONS BELOW

The Order of the Court of Appeals for the First Circuit of

which review is sought is reprinted in the Appendix attached

hereto, App. 1.

The Memorandum of the United States District Court for

the District of Massachusetts (Tauro, J.), referred to and relied

or: by the First Circuit in its aforementioned Order of February

21, 1992, is reprinted in the Appendix attached hereto, App. 3.

JURISDICTION

The jurisdiction of this Court to review the Order of the

First Circuit, dated and entered February 21, 1992, affirming

the Order of the District Court for the District of Massachusetts,

October 7, 1991, is invoked pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Due Process Clause of the Fifth Amendment of the

Constitution of the United States provides:

No person shall be . . . deprived of . . . property

without due process of law .

RULES INVOLVED

Rule III(H) of the Guide to Judicial Policies and Procedures,

App. 8, provides:

If a case has been pending for more than three

years and no action has been taken for more than twelve

months, the clerk may submit a JS-6 form to remove

the case as a pending matter. The procedural progress

at termination should be shown. The case should not

be dismissed.

If a minute entry is desired it may be phrased as follows:

This case having been pending for over three

years, all presently contemplated proceedings having

been completed, and there having been no action

herein for over 12 months, there appears to be no

further reason at this time to maintain the file as an

open one for statistical purposes, and the Clerk is

instructed to submit a JS-6 form to the Administrative

Office.

Nothing contained in this minute entry shall be

considered a dismissal or disposition of this matter,

and, should further proceedings in it become neces-

sary or desirable, any party may initiate it in the

same manner as if this minute entry had not been

entered.

(Emphasis added.)

Local Rule 41.1 of the Local Rules of the District of Mas-

sachusetts provides:

(b)(1) [E]ach judge may from time to time give

notice of not less than twenty (20) business days of

hearing on a dismissal calendar for actions or pro-

ceedings assigned to that judge that appear not to

have been diligently prosecuted.

STATEMENT OF THE CASE

SUMMARY STATEMENT OF THE CASE

Seventeen hundred (1700) freight damage cases, involvng

thirty-one plaintiff-receivers from Massachusetts, Connecticut

and Rhode Island were the subject of an unprecedented, dis-

criminatory and unprincipled mass dismissal by the district

court for the District of Mussachusetts (Tauro, J.), on October

7, 1991. The ostensible basis given was “failure to prosecute,”

assertedly prior to and after 1987, with reference to a supposed

unavailability of evidence. The speciousness of the reason

given is revealed in the Court’s own Memorandum, which

refers to and specifically lists the Petitioners’ “repeated efforts”

to prosecute these cases. App. 4. The railroads are required

by federal regulation to retain their records, 49 C.F.R. § 1220

et seq., and these records have been produced at settlement

conferences over the years. Affidavits as to past practice are

available in the record of this case, and judicial notice may

be taken as to recent state freight damage cases. Both these

sources demonstrate that the requisite evidence to proceed is

readily available.’

The underlying reason for dismissal of the cases is the district

judge’s expressed but unreasonable fear that continued pros-

ecution would produce “intolerable congestion in this court's

calendar and unacceptable delay in the disposition of other

pending cases.” App. 4. The Court of Appeals affirmed, “for

essentially the same reasons,” without elaboration. App. |.

These cases have been the subject for over fifteen years of

sometimes intense extrajudicial concern by the Chiet Judges

>“(T]}he defendant railroads, in compliance with Federal Regulations, have

previously conveyed to the Plaintiff-Receivers all pertinent documents which

resulted from their investigation of the freight loss and damage claims, and

the Plaintiffs would be happy to return copies of Defendants’ own documents

should they have been lost or destroyed.” App. 29.

of the district court for the District of Massachusetts and the

Court of Appeals for the First Circuit, internally and externally.

For example, at a hearing before the United States Senate

Subcommittee on Improvements in Judicial Machinery on fed-

eral jurisdiction of freight damage claim:, held on November

13, 1975, these judges “strongly, indeed fervently” supported

a bill which they erroneously “believe[d], if enacted, would

eliminate a glut of more than 7,000 small ICC cases presently

congesting the docket of [the District of Massachusetts] court.”

App. 16. The requiring of a $10,000 freight damage claim for

federal jurisdiction did nothing, however, to eliminate the

legitimately filed cases already on the docket.

In 1978 the Penn Central Railroad, in an attempt to dismiss

en-masse the thousands of pending cases, filed a civil action

alleging unfair practices and abuse of process on the part of

the Receiver-Plaintiffs. All railroads, over vehement objections

of the Plaintiffs, suspended settlement practices awaiting resol-

ution of the civil action. Every effort by the Plaintiffs to con-

tinue settlements were rejected by the railroads. All docket

activity ceased.

In 1980, in an effort to eliminate the distortion of statistics

for the federal docket, the court invoked Rule III(H) of the

Guide to Judicial Policies and Procedures, and administratively

closed for statistical purposes only, all freight loss and damage

cases.

The civil action undertaken by the Penn Central Railroad

was finally resolved in 1987. Immediately upon final adjudi-

cation, the Plaintiffs resumed settlement practices with the

railroads. Four defendant carriers settled all outstanding

claims. Five major carriers adamantly refused to settle the

majority of the 1700 cases remaining outstanding, and it be-

came apparent to the Plaintiffs that, so long as these cases

were administratively closed, neither legal nor financial im-

perative existed to entice the reluctant railroads to settle.

The Plaintiffs undertook actions necessary to restore the

cases to the active docket, the sine-qua-non for final disposition

of the cases. Seventeen Hundred (1700) individual Motions

to Bring Forward were filed covering the outstanding cases.

All were denied. Sometime later, one (1) blanket Motion to

Restore was filed. This was denied. Five separate Motions for

Summary Judgment were filed on cases which had twice before

been denied restoration to the active docket, and these were

denied because the cases were not on the active docket. Finally,

in a State of frustration, Plaintiffs filed a Motion for Determi-

nation of Status of the 1700 cases. At this point, Rule 41.1(b)(1)

was invoked by the District Court and the 1700 cases were

dismissed for “lack of prosecution,” and because restoration

of the cases “would produce intolerable congestion in this

court’s calendar, and unacceptable delay in the disposition of

other pending cases.” App. 4.

The courts below have successfully used judicial process to

thwart every attempt by Petitioners to activate the administra-

tively closed cases, notwithstanding the automatic right man-

dated by the plain terms of the very rule pursuant to which

the cases had been closed.

Thus, in an effort to accommodate criminal and other civil

cases, an act of gross discrimination has been committed

against thirty-one Plaintiffs who, by virtue of the District

Court’s willful disregard of the plain language of Rule III(H),

the Administrative Closing Rule, and its persistent denial to

restore 1700 freight damage cases to the active docket, have

now been deprived of their Constitutional rights under the Due

Process Clause by the dismissal en-masse of said 1700 cases,

not on their merits, but for purported failure to prosecute. The

unprecedented dismissal of these cases for “want of prosecu-

tion,” despite Petitioners’ acknowledged “repeated efforts” to

prosecute and the court’s willful disregard of the automatic

re-opening provision of Rule III(H), cries for relief in this

Court.

1. The Judges of the District of Massachusetts and the Court

of Appeals for the First Circuit Have Long and Actively

Sought to Rid the Federal Docket of the Many Freight

Damage Cases.

American railroads have, as an historical practice, used their

massive bargaining position over the individual receivers of

perishable produce to deny liability and reject and refuse to

settle claims notwithstanding clear proof of liability and dam-

ages, as detailed by the Interstate Commerce Commission in

a landmark decision, Ex Parte No. 263, 3451.C.C. 515 (1972).

Such was the practice in the District of Massachusetts, where

the railroads’ contumacious behavior was not diminished de-

spite their virtually unbroken record of losing the freight dam-

age cases that went to trial and established the law in the area.°

Although the railroads’ tactic of forcing all meritorious

claims into suits threatened to clog the civil justice system,

since 1973 approximately ten thousand suits have been resolved

through settlement conferences, under orders of the district

judges, without a single case having been tried in the federal

district court. Little, if any, court participation preceded settle-

ment. An exhibit introduced by Judge Caffrey at a Senate

Judiciary Subcommittee Hearing on creating a $10,000 claim

requirement for federal jurisdiction of freight damage claims

concluded:

We do not anticipate any significant savings in

judge time since a very small percentage of the I.C.C.

cases actually go to trial.‘

‘Several cases resulted in published opinions: Condakes v. Southern Pacific

Co., 295 F.Supp. 121 (D. Mass. 1968); Sarno, d/b/a Sunlight Tomato Co. v.

Southern Pacific Co., 277 F. Supp. 628 (D. Mass. 1967); Condakes v. Southern

Pacific Co., 303 F. Supp. 1158 (D. Mass. 1968). Not one of the litigated

cases was appealed by the railroads.

“Exhibit VI, Hearing before the Subcommittee on Improvements in Judicial

Machinery, November 13, 1975, p.23. In 1972, “1002 of these cases were

disposed of in the federal court. Two of them were tried.” William P. Westphal,

Chief Counsel to the Subcommittee, Hearings, supra, p.3l.

The real displeasure of the district judges in Massachusetts

and the cause of “the deleterious effect of this clog of small

cases ... on the morale of the court,” App. 12, was not

docket congestion but the “distortion of statistics.” The chief

district judge testified:

At a meeting of the metropolitan chiefs last week,

Massachusetts had the longest median time for civil

cases .. . [I]t is obvious that our pending time is

being distorted by the presence of these cases .. .

[T]hey sit there, and fester, and don’t get much ac-

tion, but they distort our statistics . . .

Every time I go to a meeting of the metropolitan

chief judges I have to explain this situation all over

again. There are always some judges who are new

and want it explained to them all over again.

App. 11-13.

Perhaps believing that the pending and legitimately filed

freight damage cases would settle, as was the custom and

practice, the chief district judge testified:

All members of this court and all members of the

Judicial Council of the First Circuit strongly, indeed

fervently, support S-346 as a Bill which we believe,

if enacted, would eliminate a glut of more than 7000

small ICC cases presently congesting the docket of

this court.

Letter to Senator Quentin Burdick, dated November 5, 1975,

submitted as exhibit at hearing. App. 15-16) (emphasis added).°

* Similar sentiments were expressed at the hearing: wi

The first point I wish to make, of course, is that the judges of

our court, all eight of us, plus the three judges in the U.S. Court

of Appeals sitting as a judicial council for the circuit, strongly

endorse this bill because it would eliminate what I have charac-

terized as a glut of small ICC cases.

App. 10 (emphasis added).

The Chief Judge of the First Circuit wrote to Senator Edward

M. Kennedy:

The removal of these cases would not only ease

the flow of paper work in the clerk’s office and. to

some extent, relieve judges of the almost ministerial

task of processing settlement agreements, but would

remove from controversy the presence of such cases

in the statistics of the Massachusetts court.

Each member of the Council has read Judge Caf-

frey’s letter and wishes to be recorded as enthusias-

tically approving it.

Letter of October 14, 1975, introduced as Exhibit at Hearings,

supra, App. 20 (emphasis added).

A $10,000 jurisdictional requirement for Interstate Com-

merce Act cases was created — but the cases already filed

necessarily remained on the docket.

2. The Administrative Closings and the Litigated and Af-

firmed Propriety of the Filing of the Suits.

In 1978, the Penn Central Railroad filed a civil action® in the

District of Massachusetts, attempting to dismiss the thousands

of pending freight damage suits en masse by challenging as

an unfair practice and abuse of process the Receivers’ filing

of the thousands of suits. The practice and process of resolution

of the cases through settlement largely ground to a halt as most

railroads waited to see what effect these charges would have

on the situation. The Receivers reluctantly acceded to those

circumstances, thereby resulting in a period of inactivity,

awaiting the resolution of the Blanchette allegations.

During the pre-trial period of Blanchette, on September 16,

1980, the Chief Judge of the First Circuit wrote to the Chief

* Blanchette v. Cataldo, Civ. No. 78-2368-S.

sok Nae saa > Dern,

10 |

Judge of the district of Massachusetts, requesting that the pend-

ing freight damage cases be “statistically” closed pursuant to

Rule ITI(H) of the Guide to Judicial Policies and Procedures:

In particular, I remind you and your clerk of the

rule approved by the Subcommittee on Judicial Sta-

tistics in 1973: that you can statistically close any

civil case three years old or older to which no action

appears imminent. (This can be found in the Statis-

tical Analysis Manual, Guide to Judicial Policies

and Procedures, Vol. 11, p. I-29).

The [Judicial] Council [of the First Circuit] also

requests a report from you by the end of October

giving us information as to whatever action you may

have taken and your best thinking of what further

action should be taken to reduce this problem in your

district.

We would appreciate in particular some further

planned initiative on the part of your court, e.g., use

of special masters, to reduce as much as possible

the remaining ICC-case backlog.

App. 6-7 (emphasis added).

In view of the inactivity occasioned by Blanchette, the cases

were so administratively closed in 1980 pursuant to Rule III(H),

which provides and concludes:

Nothing contained in this minute entry shall be

considered a dismissal or disposition of this matter,

and, should further proceedings in it become neces-

sary or desirable, any party may initiate it in the,

same manner as if this minute entry had not been °

entered.

App. 8 (emphasis added).

aaasceaaneeaeiaenamenneneinienel

In 1982, the district court (Skinner, J.), sitting without a

jury, upheld the propriety of the filing of the suits.? The Court

of Appeals for the First Circuit affirmed:

We add that we have reached this conclusion after

studying the parties’ briefs with care and after read-

ing all of the nearly 4,000 pages of record material

presented in the parties’ briefs and appendices. We

undertook this effort because familiarity with detail

seemed necessary to understand the essence of the

case and the likelihood of district court error, and

because we wished to understand the details, given

the relationship of the case to the administration of

Justice within the circuit.

Blanchette v. Cataldo, 734 F.2d 869, 872 (ist Cir. 1984)

(emphasis added).

3. Subsequent Efforts to Settle or Prosecute the Cases.

After post-appeal litigation, the final order in Blanchette v.

Cataldo was entered in February, 1987. Upon final adjudica-

tion, four defendant railroads settled all their pending cases.

Serious settlement negotiations were conducted with regards

to virtually all of the 1700 cases that are subject to this Petition.

App. 28.

At hearings in October, 1987 district judge Tauro (the same

judge whose later Order is the basis of this Petition), ordered

global settlement discussions on the 1700 cases.* The discus-

"In the trial; the Freight Claims Manager of the Penn Central Railroad

responsible for the handling of railroad claims testified that the policy of his

railroad was to follow not the decision of the majority of the Supreme Court

in the landmark freight damage decision, Missouri Pacific R.R. v. Elmore and

Stahl, 377 U.S. 134 (1964), but rather the dissenting opinion!

* At hearings on subsequent motions in 1989 and 1990, district judge Tauro

again ordered the parties to confer regarding settlement of all the remaining

freight damage cases. Several times parties traveled across the country to

settlement conferences, but discussions proved fruitless. App. 28-29.

sions broke down, and, in further efforts to prosecute the cases,

the Petitioner-Receivers moved to place the remaining freight

damage cases on the active docket — as a necessary prelude

to settlement,’ or trial if necessary. The motions to restore to

the active docket were denied, despite the plain and mandatory

wording of Rule III(H), allowing for the automatic re-opening

of the cases.

4. “Further Proceedings” Pursuant To Rule III(H).

In 1990, in an additional attempt to avail themselves of the

automatic re-opening provisions of Rule III(H), and specifi-

cally that segment which reads “and, should further proceed-

ings in it become necessary or desirable, any party may initiate

it,” the Plaintiff-Receivers filed individual motions for sum-

mary judgment in five of the 1700 cases. The Motions for

Summary Judgments, ipso facto, restored the cases to the

active docket, and the motions were entitled to adjudication

on the underlying merits of the cases.

District Judge Tauro ruled “that [the Summary Judgment]

motions are essentially motions to reconsider and vacate this

Court’s prior orders [the denial of two previous motions by

Plaintiff-Receivers to restore the cases to the active docket].

This court declines to do so.” Thus, the Motions were incor-

rectly denied on procedural grounds and the cases were neither

restored to the active docket nor adjudicated on their merits."

*The “state of limbo . . . provide[d] [defendant-railroads] neither the legal

nor the financial incentives for the cases to be resolved on their merits.” App. 31.

The litigation history and efforts to activate and prosecute the cases

are summarized in part in a footnote in the district court’s Memorandum

5. The Unprincipled Dismissal of the Cases.

In June, 1991, confronted with the enigma that the court

would neither restore the cases to active docket nor allow any

“further proceedings” unless the cases were first restored, the

Petitioners filed a Motion for Determination of Status of Cases.

On July 17, 1991, district judge Tauro issued an order to show

good cause why the freight damage cases should not be dismis-

sed for “want of diligent prosecution” pursuant to Local Rule

41.1(b)(1), which allows for the dismissal of cases “that appear

not to have been diligently prosecuted.” The Petitioners’ re-

sponse recited the diligent prosecution in which they had in

fact been engaged, including actions taken within the last year,

and stated that they continued to stand ready for trial.

On October 7, 1991, characterizing “plaintiffs” [Petitioners’ |

repeated, unsuccessful efforts at restoration” as “this history

of inaction,” District Judge Tauro dismissed all of the remain-

ing freight damage cases “ for want of prosecution.” App. 4.

of October 7, 1991 dismissing the cases for “failure to prosecute” prior to

1987:

In more recent history, these cases were the subject of a motion

to “bring forward” [pursuant to Rule III(H)] that this court denied,

after hearing, on February 5, 1988. On February 23, 1988, this

court denied plaintiffs’ motion for reconsideration. There was no

appeal.

In April 1989, various receiver- plaintiffs filed motions to “re-

store” these same 1700 cases. On July 27, 1989, after hearing,

this court denied the motion, and stated its reasons in an accom-

panying memorandum. Plaintiffs appealed, but later withdrew the

appeal before it was acted upon.

In 1990, plaintiffs filed motions for summary judgment in five

of these cases. This court treated those motions as motions to

reconsider and to vacate its prior orders and denied them in a

Memorandum dated September 10, 1990. Plaintiffs appealed, but,

in an Order dated January 3, 1991, the First Circuit allowed the

defendant’s appellees’ motion to dismiss the appeal for failure to

present a substantial question.

App. 3-4.

The underlying supposed justification was that resolution of

the cases “would produce intolerable congestion in this court’s

calendar and unacceptable delay in the disposition of other

pending cases.” App. 4. Perhaps subconsciously revealing the

congestion-driven motivation of the judges who had previously

petitioned the Congress on this matter, he added, “the Court

of Appeals has already upheld the dismissal of these lawsuits.”

App. 5."

The First Circuit affirmed, “essentially for the reasons stated

in the district court’s memorandum of October 7, 1991,” with-

out elaboration. App. 1.

The Various Receiver-Plaintiffs respectfully petition this

Court for a Writ of Certiorari.

REASONS FOR GRANTING THE WRIT

It is respectfully urged that this Court grant Certiorari to

interpret and authoritatively pronounce the plain meaning of

Rule III(H), to correct the abusive exercise of inherent power

by the courts below, and to resolve the increasing tension

between docket congestion and the integrity of the judicial

process in favor of the rule of law and the rights of civil

business litigants. All courts and all civil litigants would be

benefited by such action of this Court, notably in these days

of threatened strangulation of civil case dockets by criminal

cases.

''In dismissing an appeal of the denial of five receiver-plaintiffs’ rights to

move for summary judgment, the First Circuit had stared in obiter dictum on

an issue not presented in the railroads’ motion to dismiss the appeal, “the

underlying cases, being stale, were properly dismissable for want of prosecu-

tion.” App. 5.

I. THIS COURT SHOULD GRANT CERTIORARI TO

EXPLICATE THE PLAIN MEANING OF THE AU-

TOMATIC RE-OPENING PROVISION OF THE

RULE OF THE JUDICIAL CONFERENCE OF THE

UNITED STATES ON ADMINISTRATIVE CLOS-

INGS OF CASES, AND TO REQUIRE DISTRICT

COURTS TO ADHERE TO IT.

As an important exercise of its supervisory power over the

federal courts, this Court has traditionally granted Certiorari

to review the validity and construction of federal rules of

procedure,'’ local district rules,'* and Circuit court rules."

See generally, “The Supervisory Power of the Federal Courts,”

76 Harvard Law Review 1656 (1963), cited by this Court in

Frazier v. Heebe, supra at fn. 12.

Supervisory power should be exercised here to pronounce

the plain meaning of the rule of the Administrative Office of

the Judicial Conference of the United States '° on administrative

* Sibbach v. Wilson & Co., 312 U.S. 1 (1941); Hickman v. Taylor, 329

U.S. 495 (1947) (discovery of attorney work-product under federal rules);

Schlagenauf v. Holder, 379 U.S. 104, 109 (1964) (Rule 35, regarding the

ordering of mental and physical examinations of a defendant).

' Frazier v. Heebe, 482 U.S. 646 (1987) (overruling residence requirements

for bar of district court).

‘Western Pacific R. Corp. v. Western Pacific R. Co., 345 U.S. 247. 267

(1953):

We hold that . . . whatever the [en banc] procedure which is

adopted, it should be clearly explained, so that the members of

the court and litigants in the court may become thoroughly familiar

with it;....

‘The Guide to Judiciary Policies and Procedures is the official medium of

the Administrative Office of the United States Courts. /bid., Vol.1, ch. I. p.t.

The Administrative Office was created by an act of Congress, 28 U.S.C.

§ 603, and is subject to the supervision and direction of the Judicial Conference

of the United States. 28 U.S.C. § 601.

The Judicial Conference is comprised mainly of the Chief Justice of the

United States and the Chief Judges and a district judge of each judicial circuit.

28 U.S.C. § 331.

closings, and to require district courts to adhere to it. Rule

III(H) of the Guide to Judiciary Policies and Procedures pro-

vides:

Nothing contained in this minute entry shall be

considered a dismissal or disposition of this matter,

and should further proceedings in it become neces-

sary or desirable, any party may initiate it in the

same manner as if this minute entry had not been

entered.

App. 8 (emphasis added).

This mandatory provision, automatic in application, could

hardly be more clear. Yet, despite the several and strenuous

efforts of the Petitioner-Receivers to “initiate further proceed-

ings,” the district judge dismissed, “[i]n light of this history

of inaction and the administrative status of these cases.” App.

4. The circumstances of this matter call for this Court to grant

Certiorari and instruct all courts and affected litigants that,

regardless of fears of docket congestion or of the “distortion

of statistics,” due process and the rule of law require that the

plain wording of the rule be respected.

Il. THIS COURT SHOULD GRANT CERTIORARI TO

INSTRUCT THE JUDICIARY THAT INCREASING

TENSION BETWEEN DOCKET CONGESTION

AND THE INTEGRITY OF THE JUDICIAL PROC-

ESS MUST BE RESOLVED IN FAVOR OF THE

RULE OF LAW.

In 1962 in Link v. Wabash Railroad Co., 370 U.S. 626,

631, fn. 7 (1962), relied upon by the district judge below, this

Court stated, “in the more populous districts . . . calendar

congestion has become a severe problem.” In 1975 at the

Congressional freight damage hearings, supra, Chief District

Judge Caffrey stated, “The impact of the criminal docket has

kept the youngest and most vigorous of our six judges trying

nothing but criminal cases all year.” App. 21. The situation

is far worse now.

Huge increases in the number of civil and criminal actions

generally, and burdensome increases in drug cases and habeas

corpus petitions particularly, have caused serious docket back-

log, disturbing to parties and judges. But the serious problems

of case overload and backlog do not grant license to discrimi-

nate against other parties, and are no excuse for the continued

prejudice against thirty-one Plaintiff-Receivers by the dismissal

of 1700 legitimately filed and meritorious freight damage cases

here. It is contradictory, and logically and constitutionally

impermissible, for “repeated efforts at restoration” to be termed

“this history of inaction” and it is even more outrageous and

incomprehensible that motions for summary judgment on five

cases, which on two different occasions had been denied resto-

ration to the active docket, should have been dismissed because

they were not on the active docket. All of this was done by

the District Court and approved by the First Circuit. It is a

denial of procedural and substantive due process of law to

prevent successful action on a case or group of cases and then

pretend that there has been no action and dismiss for “want

of prosecution.”

In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336 (1976), this Court granted Certiorari and reversed the

remanding of a case to state court because of the crowded

condition of the federal court docket. In language fully applic-

able to the instant Petition, this Court stated:

It is indeed unfortunate if the judicial manpower

provided by Congress in any district is insufficient

to try with reasonable promptness the cases properly

filed in or removed to that court in accordance with

the applicable statutes. But an otherwise properly

removed action may no more be remanded because

the district court considers itself too busy to try it

than an action properly filed in the federal court in

the first instance may be dismissed or referred to

state courts for such reason.

Ibid. at 344 (emphasis added).

The district court’s unreasonable fears '* of the “intolerable

congestion in this court’s calendar and unacceptable delay in

the disposition of other pending cases” are no excuse. While

this Court may take judicial notice of the well-publicized and

long-standing shortage of federal judges in the district of Mas-

sachusetts, “[C]rowded dockets do not excuse compliance with

rules and statutes.” Johnson v. Rogers, 917 F.2d 1283, 1285

(10th Cir. 1990), summarizing Jones v. Shell, 572 F.2d 1278,

1280 (8th Cir. 1978). The words of the district court for the

Southern District of New York in denying a motion to dismiss

for failure to prosecute are also relevant here: “[A]lithough this

court’s dockets are among the busiest in the nation, [plaintiff]

has a due process right to present her case in court.” Freed v.

Braniff Airways, Inc., 119 F.R.D. 10, 11 (S.D.N.Y. 1987).

In the instant matter as in U.S. Industries, Inc. v. Blake Const.

Co., 671 F.2d 539, 551 (D.C. Cir. 1982), “the real reason

for dismissal was convenience of judicial administration. That

is not a valid ground for dismissing a properly asserted claim.”

THE ASSERTION OF WANT OF

PROSECUTION WAS A TRANSPARENTLY SPECIOUS GUISE

The cases at issue were dismissed under the guise of want

of prosecution, but the record shows that there has been no

‘©The fears are unreasonable because the cases would likely settle if on the

active docket. If not, the use of special masters, as suggested by the Chief

Judge of the First Circuit, App. 7, and consolidation of cases pursuant to Local

Rule, as suggested by Petitioners, could be employed.

failure to prosecute. During and after 1987, there were court-

ordered settlement conferences and intensive and extensive

prosecution through the filing of motions to restore the cases

to the active docket and motions for summary judgments. The

district judge’s reaching back to 1987 and before in an attempt

to find want of prosecution was without factual or legal basis.

First, there should not be dismissal for inactivity where there

was related litigation activity, as there was in the case challeng-

ing the propriety of the suits, Blanchette v. Cataldo. S.E.C.

v. Everest Management, 466 F.Supp. 167, i71 (S.D.N.Y.

1979); Markel v. Scovii Mfg Co., 657 F.Supp. 1102, 1105

(W.D.N.Y. 1987). Second, there were undeniable and unde-

nied settlement conferences and actual settlements before, dur-

ing, and after Blanchette. Even in the context of a single case,

settlement activity is sufficient to withstand a motion to dismiss

for failure to prosecute. Feif v. A.H. Robbins, 90 F.R.D. 526,

530 (E.D. Penn. 1981). A fortiori here, where settlement ac-

tivity was the accepted and in fact court-ordered method of

prosecution, before and after 1987.

Further, the cases may not now be dismissed for claimed

prior inactivity. “[I]f the claim is presently being prosecuted

with diligence it cannot be dismissed because at some earlier

time plaintiff did not act diligently.” Wright & Miller, Federal

Practice and Procedure: Civil § 2370, p. 204; 2B Barron &

Holtzoff, Federal Practice and Procedure, 918, pp. 139-40;

RAAB v. Taber Instrument Corp., 546 F.2d 522, 524 (2nd

Cir. 1976) (“breathed new life into dormant cases”); Rollins

v. United States, 286 F.2d 761 (9th Cir. 1961); Applebaum

v. Ceres Land Co., 546 F.Supp. 17, 22 (D.Minn. 1981) (“‘Fur-

thermore, Levitt is now prosecuting the claim with diligence.

It would be inappropriate for the Court to grant Ceres’ motions

at this time.”); United States v. Myers, 38 F.R.D. 194, 197

(N.D.Cal. 1964). Furthermore, there has been significant doc-

ket activity and diligent prosecution of the cases not only over

the years but also specifically and extensively within the last

year.

“The writ [of certiorari] is appropriately issued . . . when

there is ‘usurpation of judicial power’ or a clear abuse of

discretion.” Schlagenaut v. Holder, supra, 379 at 110.

Foremost among “the character of reasons that will be consi-

dered” in determining when this Court will grant a petition for

a Writ of Certiorari is, “When a United States Court of Appeals

. . . has so far departed from the accepted and usual course

of judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court’s power

of supervision.” Supreme Court Rule 10.1(a). This is such a

case. The “strong, indeed fervent” feelings of the judges in

the courts below concerning docket congestion and the “distor-

tion of statistics” caused by these legitimately filed and

meritorious cases cannot be allowed to displace due process

of law.

CONCLUSION

Therefore, based on the foregoing reasons and authorities.

the Petitioners respectfully urge that a Writ of Certiorari be

granted.

Pursuant to Supreme Court Rule 16.1, this Court may order

a summary disposition, instructing the courts below to allow

the reactivation of the 1700 freight damage cases that are the

subject of this Petition.

Respectfully submitted,

MORRIS M. GOLDINGS

Counsel of Record

RICHARD S. JACOBS

MAHONEY, HAWKES & GOLDINGS

40 Rowes Wharf

Boston, Massachusetts 02110

(617) 439-7600

Counsel for Petitioners

May 21, 1992

TABLE OF CONTENTS

Order of the United States Court of Appeals for the

First Circuit, dated February 21, 1992

Order of the District Court for the District of Massachu-

setts, dated October 7, 1991

Memorandum of the District Court for the District of

Massachusetts, dated October 7, 1991

Letter from the Honorable Frank M. Coffin, Chief

Judge of the Court of Appeals for the First Circuit,

to the Honorable Andrew A. Caffrey, Chief Judge of

the United States District Court for the District of

Massachusetts, dated September 16, 1980

Guide to Judicial Policies and Procedures,

Section ITI(H)

United States Senate Subcommittee Hearings on Fed-

eral Jurisdiction of Freight Damage Claims

Local Rule 41.1 — Dismissal for Want of Prosecution

Affidavit of John M. Cataldo

A23

A25

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 91-2188

VARIOUS RECEIVERS, Et AL.,

PLAINTIFFS, APPELLANTS,

VARIOUS RAILROADS, ET AL.,

DEFENDANTS, APPELLEES.

Before

TORRUELLA, Circuit Judge,

CAMPBELL, Senior Circuit Judge,

and SELYA, Circuit Judge.

ORDER OF COURT

Entered February 21, 1992

We have considered the motion to dismiss and the opposition

thereto, including appellants’ brief, and the record on appeal.

We agree with appellees’ contention that no substantial ques-

tion is presented and affirm essentially for the reasons stated

in the district court’s memorandum of October 7, 1991.

Affirmed. Loc. R. 27.1.

By the Court:

Francis P. Scigliano

Clerk.

[cc: Messrs. Goldings, Chused, Gleason, Ferriter, Inselise, Osborne and

Ms'’s. Insoft, Lipton]

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Various Receiver-Plaintiffs,

Plaintiffs,

v. Freight Damage Cases '

Various Railroad-Defendants,

Defendants.

ORDER

October 7, 1991

TAURO, D.J.

For the reasons stated in the accompanying Memorandum,

this case is hereby dismissed, with prejudice.

/s/

United States District Judge

"A compiete list of all these cases is listed in the Appendix attached to the

Memorandum.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Various Receiver-Plaintiffs,

Piaintiffs,

Vv. Freight Damage Cases '

Various Railroad-Defendants,

Defendants.

MEMORANDUM

October 7, 1991

TAURO, D.J.

On June 27, 1991, plaintiffs filed a Motion for Determination

of Status of Cases with respect to approximately 1700 interstate

freight damage cases that were administratively closed more

than a decade ago.’ In a prior Memorandum, this court noted

A complete list of all these cases is listed in the Appendix attached to the

Memorandum.

*In more recent history, these cases were the subject of a motion to “bring

forward” that this court denied, after hearing, on February 5, 1988. On February

23, 1988, this court denied plaintiffs’ motion for reconsideration. There was

no appeal.

In April 1989, various receiver-plaintiffs filed motions to “restore” these

same 1700 cases. On July 27, 1989, after hearing, this court denied the motion,

and stated its reasons in an accompanying memorandum. Plaintiffs appealed,

but later withdrew the appeal before it was acted upon.

In 1990, plaintiffs filed motions for summary judgment in five of these

cases. This court treated those motions as motions to reconsider and to vacate

its prior orders and denied them in a Memorandum dated September 10, 1990.

Plaintiffs appealed, but, in an Order dated January 3, 1991, the First Circuit

allowed the defendants-appellees’ motion to dismiss the appeal for failure to

that “despite their successful opposition to defendants’ stay

request, plaintiffs did nothing to prosecute these cases [for]

. nine years.” Memorandum dated July 27, 1989 at 2. In

fact, the cases were administratively closed in 1980 and, fol-

lowing plaintiffs’ repeated, unsuccessful efforts at restoration,

remain so even to this day. In light of this history of inaction

and the administrative status of these cases, this court issued

an Order dated July 17, 1991 pursuant to Local Rule 41.1(b)(1)

requiring the parties to attend a hearing on September 27, 1991

to show cause why these cases should not be dismissed for

want of diligent prosecution.

In response to this Order, both parties filed Certificates in

compliance with Local Rule 41.1.(b)(1). This court then con-

ducted a hearing on the issue of dismissal on September 27,

1991. Plaintiffs have failed to identify any good reason, either

in their Certificate or at the September 27, 1991 hearing, which

would justify the nine-year delay in prosecution of these cases.

This prolonged period of unjustifiable inactivity has allowed

ue evidentiary trail in these cases, some of which are twenty

years old, see, e.g., CA Nos. 70-1398-F and 71-939-G, to

cool to the point where resolution of the underlying factual

issues would be so difficult and time consuming that it would

produce intolerable congestion in this court’s calendar and

unacceptable delay in the disposition of other pending cases.

See Link v. Wabash Railroad Co., 370 U.S. 629-30 (1962).

Moreover, so long a delay has substantially prejudiced the

defendants, as witnesses’ memories have faded and physical

evidence has disappeared. See Boudwin v. Graystone Ins. Co.,

Inc., 756 F.2d 399, 401 (Sth Cir. 1985). The parties have not

suggested any lesser sanction, short of dismissal, which would

address these concerns, and this court, on its own considera-

present a substantial question. Various Receiver Plaintiffs v. Penn Central

Transportation Co., et al., No. 90-1963 slip op. at 2 (Ist Cir. Jan. 3, 1991).

tion, finds no other adequate alternative. See id.; Locascio v.

Teletype Corp., 694 F.2d 497, 499 (7th Cir. 1982). Indeed,

the Court of Appeals for the First Circuit has already upheld

the dismissal of these lawsuits, noting that “the underlying

cases, being stale, were properly dismissible for want of pros-

ecution .. . .” Various Receiver Plaintiffs v. Penn Central

Transp. Co., et al., No. 91-1963, slip op. at 1 (Ist Cir. Jan.

3, 1991). Accordingly, this court exercises its inherent power

to dismiss sua sponte for lack of prosecution, see Link, 370

U.S. at 639-31, and orders the dismissal, with prejudice, of

all these actions.

An Order will issue.

/s/

United States District Judge

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

156 FEDERAL STREET

PORTLAND, MAINE 04112

September 16, 1980

Honorable Andrew A. Caffrey

Chief Judge, U.S. District Court

1503 Post Office and Courthouse

Boston, Massachusetts 02109

Dear Chief Judge Caffrey:

Acting on behalf of our Judicial Council, I am enclosing

the latest print-out of civil cases pending as of June 30, 1980

three years or more. Mr. Foley tells us that the percentage of

such cases to total civil cases nationally is 11.7% — an all

time high.

We have no desire to put you or your clerk to fruitless work

but ask that, with your clerk’s help, you go over the list to

identify cases which may be susceptible to some kind of action.

You may be able to identify some problems that may account

for a number of old cases. In particular, I remind you and

your clerk of the rule approved by the Subcommittee on Judicial

Statistics in 1973: that you can statistically close any civil case

three years old or older to which no action appears imminent.

(This can be found in the Statistical Analysis Manual, Guide

to Judicial Policies and Procedures), Vol. 11, p. II-29).

The Council also requests a report from you by the end of

October giving us information as to whatever action you may

have taken and your best thinking of what further action should

be taken to reduce this problem in your district.

We would appreciate in particular some further planned

initiative on the part of your court, e.g., use of special masters,

to reduce as much as possible the remaining ICC — case

backlog.

We shall much appreciate your cooperation in this effort.

Sincerely,

Frank M. Coffin

trans. 10 vol. XI

July 1, 1978

Special Situations

Three-year old cases

If a case has been pending for more than three years and

no action has been taken for more than twelve months the

clerk may submit a JS-6 form to remove the case as a pending

matter. The procedural progress at termination should be

shown. The case should not be dismissed.

If a minute entry is desired it may be phrased as follows:

This case having been pending for over three years,

all presently contemplated proceedings having been

completed, and there having been no action herein

for over 12 months there appears to be no further

reason at this time to maintain the file as an open

one for statistical purposes, and the Clerk is in-

structed to submit a JS-6 form to the Administrative

Office.

Nothing contained in this minute entry shall be con-

sidered a dismissal or disposition of this matter, and,

should further proceedings in it become necessary

or desirable, any party may initiate it in the same

manner as if this minute entry had not been entered. *

* Approved by the Subcommittee on Judicial Statistics April

26, 1973.

Volume-XI Page II-29

Cepinilialbitititltt cc

FEDERAL JURISDICTION OF FREIGHT

DAMAGE CLAIMS

HEARING

BEFORE THE

SUBCOMMITTEE ON

IMPROVEMENTS IN JUDICIAL MACHINERY

OF THE

COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE

NINETY-FOURTH CONGRES

SECOND SESSION

S. 346

NOVEMBER 13, 1975

Printed for the use of the Committee on Judiciary

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON: 1976

A1l0

STATEMENT OF

HON. ANDREW A. CAFFREY, CHIEF JUDGE,

U.S. DISTRICT COURT FOR THE

DISTRICT OF MASSACHUSETTS

Judge Carrrey. | think the letter I sent to the committee

gives you an outline of what I had in mind for my presentation.

| have prepared a number of exhibits which I will refer to. I

brought along three sets of the exhibits if the committee would

care to receive them.

Senator BURDICK. They will be received as part of the record

without objection.

Judge CaFFREY. The first point I wish to make, of course,

is that the judges of our court, all eight of us, plus the three

judges in the U.S. Court of Appeals sitting as a judicial counsel

for the circuit, strongly endorse this bill because it wouid

eliminate what I have characterized as a glut of small ICC cases.

Exhibit I shows the statistics as of the first of the month.

There were 7,191 ICC cases pending in Massachusetts. I had

my staff prepare and analyze a list of the actual figures involved

in the closing of two groups of these cases.

Exhibit I(a) includes all cases filed in the calendar year 1973

and assigned to me personally. All of those cases have been

closed as of the time my secretary transcribed the figures.

They amounted to 206 cases. You will see that the exhibit

gives the docket number, the filing date, the addendum, the

closing date, and the dollar amount of settlement.

At the last page, I summarize the dollar amount. You will

see that 20 of the cases were closed without any payment

whatsoever; 57 of them were settled for something between

$100 and $300; 36 were between $300 and $500; 49, $500

up to $1,000 and the rest, some figure over $1,000. To update

this, I had my staff make a second exhibit, exhibit I(b). This

time we took all of the cases for the entire court filed in the

calendar year 1974 and closed as of October 24, 1975.

All

Again, I have the same information as I just mentioned with

reference to these cases. You will see the column totals are

that 50 of these were closed without payment, 43 less than

$300, 32 less than $500, 34 less than $1,000, and 19 for

something over $1,000.

In total, these exhibits reflect the fact that of 384 cases, 62

percent were settled for less than $500, 84 percent closed out

for less than $1,000. The largest dollar amount involved in

any case was $3,700. Only eight of them involved a figure

over $3,000.

I have acquired a second piece of evidence which I refer to

in my letter and that is an IBM runoff.

The Administrative Office of the U.S. Courts ran off a

computer printout of all the ICC cases filed with us from 1970

through 1972, which were still pending as of June 1975. That

document reflects that as of June 30, the end of the fiscal year,

there were 175 of the cases pending which means all of those

have got a pending time of at least 42 months.

There were 700 of those cases filed in 1972 which are still

pending and that means they have a minimum pending period

of 30 months, or a median of 36 months. There were still nine

cases pending since 1970 which means they were 54 months

old.

I mention this for this reason. At a meeting of the metropoli-

tan chiefs last week, Massachusetts had the longest median

time for civil cases. It was 19 months. If you crank into your

average Statistics these periods of 54, 42, and 30 months, it

is obvious that our pending time is being distorted by the

presence of these cases.

These cases pend, and pend, and pend for the simple reasons

that the requirements of the speedy trial act, with the priority

given to civil rights cases and other emergency matters, these

cases do not get much judge attention. The result is that they

sit there, and fester, and don’t get much action, but they distort

our Statistics.

Al2

I should say that these cases do not involve any practical

use of the Federal Rules of Civil Procedure or the Federal

discovery tools. There is nothing about these cases that they

require Federal court as the forum.

Exhibit II is a sample pleading which I just signed the day

before yesterday showing you the printed complaint, the

routine answer, the agreed statement of fact, and a piece of

paper I signed. That can be done in any court. That can be

done in a justice of the peace court as well as a Federal court

aS a practical matter.

Senator BURDICK. That is mass production.

Judge CAFFREY. Without any question, Senator.

Exhibits III, IV, and V are the three relevant documents

from the State courts. I have the opinion of the judge in the

municipal court who tried the case, and that of the three-judge

appellate court. It took Mr. Infelise 1 year to get from the trial

court to the Supreme Court of Massachusetts. He got the orig-

inal ruling in June 1967 and 3 days short of | year he got the

supreme court ruling. ,

Mr. Infelise, having gotten a favorable ruling, declined to

take his business back to the State courts where similar cases

are handled in every other one of the 50 States, as far as I know.

I would like to call attention to the fact that Mr. Kirks in

his annual report has a very specific comment as to the deleteri-

ous effect of this clog of small cases. I could say also on the

morale of the court. In all other Federal district courts, this

type of case is less than one-half of | percent of the total

caseload.

Our court has 64 percent of all cases pending in the country.

Exhibit VI shows the extra costs to the taxpayers and I think

the figure was $62,000 in the exhibit.

Exhibit VI(a) shows that these figures have been slightly

changed. The figure has been changed from $62,000 to

$66,000 as a result of the recent 5 percent pay raise to Federal

employees.

Al3

Senator BurDIck. It will be received without objection.

Judge CAFFREY. Thank you. :

I would like to point out that what has happened in Massa-

chusetts could happen in any State other than Florida or Califor-

nia. Every time I go to a meeting of the metropolitan chief

judges I have to explain this situation all over again. There

are always some judges who are new and want it explained

to them all over again.

That plus the exhibits pretty much covers what I had in

mind for presentation.

If there is anything I omitted to say, I think it is in my letter

to the committee.

Senator Burbick. Thank you, judge. You presented your

case very precisely. I got the picture in a hurry.

I have a few questions for you. In your testimony before

this committee when we were considering the omnibus district

judgeship bill, you recommend a jurisdictional limit from

$3,000 to $5,000. Do you have any opinion as to what is

preferable, $10,000 as in this bill or something lower?

Judge CAFFREY. The $10,000 would be much more realistic.

I did not think it was my job to tell the Senate what they ought

to do about it but if the Senate picked 10, I support that.

Senator BurRDICK. I assume that exhibit I(a) and exhibit I(b)

are a Sampling.

Judge CaFFREY. The first group are all my cases which were

closed as of a certain date and the second exhibit is the cases

that were registered with all the judges.

Senator BurDICK. Do you think this is a representative sam-

pling?

Judge CAFFREY. Yes.

Senator BuRDICK. These cases were handled in State court

but have moved to your court after an erroneous State court

ruling. What was the nature of the case?

Judge CAFFREY. It was a routine case of this type in which

the trial judge admitted the certificate of the State inspector.

| —s

Al4

The trial judge admitted that as evidence. The appellate division

of the municipal court made a wierd ruling in which they

construed the words “the courts of the United States” as exclud-

ing all State courts.

They also ruled these were not business records. The Su-

preme Court said we won’t go into the question whether the

State court is included in the phrase “courts of the United

States” because the records were business records of the De-

partment of Agriculture.

It is immaterial that they were not business records of the

shipper. They reversed the appellate division and ordered that

these records be admissible in courts in Massachusetts.

Senator BuRDICK. The trend of cases did not reverse?

Judge CAFFREY. No, sir. The cases have been with us ever

since.

Senator BurpiIckK. I would like your opinion on the argument

that perhaps this bill is an overkill and that the cure is more

harmful than the disease. Would the denial of access to the

Federal court prejudice the small plaintiff and how do State

procedures differ?

Judge CAFFREY. These cases do not involve the use of any

of the Federal Rules of Procedure, particularly with reference

to pretrial discovery. The State courts have recently adopted

the Federal Rules of Civil Procedure as the rules of procedure

for the State of Massachusetts.

At the same time procedural things available in our court

are now availabie in the State courts. The entry fee in the State

court is $5. It is $15 in our court. It costs the plaintiff 3 times

as much to come into our court as in a State court.

Second, every other plaintiff in every other State except

Massachusetts, who is using the appropriate court of that par-

ticular State is in the State courts.

I am conversant with what is going on in other Federal

courts. It is just a fluke and a freak that we have them and

AlS5

nobody else does. The plaintiffs are the wholesale distributors

of fruits and vegetables for Massachusetts and New England.

Substantial distributors on the wholesale top level are in-

volved.

Senator Burpick. The plaintiff is not prejudiced by being

in State court?

Judge CaFFREY. I say no.

Senator BuRDICK. These cases are nearly always settled and

you have stated that little, if any, court participation precedes

settlement. Would this be changed in the State court?

Judge CAFFREY. I am not that conversant with what Mr.

Infelise would do but he can explain his problems better than

I. I understand he has to get court action so the defendant

Carrier can get contributions from connecting carriers.

Senator BurDICK. Thank you very much, judge. You have

been very helpful. I commend you for keeping it within the

limits of time.

Judge CaFFrey. I think I have a fairly fast moving court-

room.

[Exhibits submited by Chief Judge Caffrey follow:]

UNITED STATES District CourRT

Boston, Mass., November 5, 1975.

Hon. QUENTIN N. BurRDICK,

U.S. Senator, Senate Office Building, Washington. D.C. ,

DEAR SENATOR BurRDICK: In response to your letter of Oc-

tober 21, 1975, requesting that I submit a statement regarding

my intended testimony relative to S-346 to the subcommittee

at least forty-eight hours before the scheduled hearing date, I

wish to advise that I plan to testify substantially as follows:

All members of this court and all members of the Judicial

Council of the First Circuit strongly, indeed fervently, support

iat

Al6

S-346 as a Bill which we believe, if enacted, would eliminate

a glut of more than 7,000 small ICC cases presently congesting

the docket of this court.

My office has prepared and I plan to file with the committee

two exhibits analyzing the dollar amounts involved in 206

cases filed in 1973. The other exhibit covers 178 cases filed

in 1974. Both exhibits establish that the vast majority of these

384 cases were settled for ridiculously low figures as compared

to the cost of processing litigation in the federal court.

I am also prepared to file an exhibit setting out the pending

Case statistics for the individual members of this court as of

November |, 1975, which will show that as of that date there

were 7191 of these ICC cases pending.

I next plan to file as exhibits and to discuss with the com-

mittee, if requested to do so, the opinion of the Supreme

Judicial Court of Massachusetts in Sawyer & Company v.

Southern Pacific Company, 354 Mass. 481, as well as the

report of a judge of the Boston Municipal Court who rendered

the original decision in that case, and an opinion of the appellate

division of the Boston Municipal Court. These opinions, be-

tween them, constitute the historical fluke which brought this

mass of ICC cases to this court. The erroneous ruling by the

Appellate Division appears to be the prime reason that the

District of Massachusetts is presently saddled with 64.1% of

all the ICC cases filed among the total of 93 federal district

courts.

I would respectfully plan to testify to the committee that

although Massachusetts presently is the only federal district

court on whose dockets small ICC cases amount to more than

one-half of 1% of the total docket, it is nevertheless true under

the present version of 28 U.S.C. § 1337 that any metropolitan

federal court located in any state other than Florida, California

and possibly Arizona, could be inundated with a mass of iden-

tical cases should counsel in any of those metropolitan areas

Al7

elect at any future time to use the federal rather than the state

courts that they are presently using.

I will be prepared to explain to the committee the degree

of judge-participation necessary to dispose of these cases and

to explain why they cannot be settled by counsel without jud-

icial participation in the settlement procedure.

I next plan to advise the committee that I have arranged to

have a representative of the Financial Management Division

of the Administrative Office of the United States Courts present

at the hearing for the purpose of testifying as to the actual cost

to the United States of processing these cases in this court.

Lastly, I would like to file with the committee as an exhibit,

my letter of September 16, 1975 to the Honorable Edward M.

Kennedy, which discusses in detail the impact of these cases

on this court’s operation and which includes an evaluation

thereof contained in the Annual Report of Mr. Rowland Kirks,

Director of the Administrative Office of the United States

Courts.

I would also like to advise the committee that the most

recent Administrative Office statistics establish that the median

time for disposing of civil cases in this court is 19 months,

the highest median in the entire federal court system. It is my

opinion that this long median is due in large part to the longevity

of these ICC cases.

The last exhibit I plan to file with the committee is a letter

written on October 14, 1975 by Chief Judge Frank M. Coffin,

on behalf of the Judicial Council of the First Circuit, to Senator

Kennedy, in which letter the Judicial Council strongly endorses

S-346.

It is possible that one or two additional pieces of evidence

may become available to me between now and November 13

and, if so, I would request the Opportunity to present them

although not referred to in this letter.

Sincerely,

ANDREW A. CAFFREY.

Al8

EXHIBIT VII

UNITED STATES DistTRICT CouRT.

Boston, Mass., September 16, 1975.

Hon. EDWARD M. KENNEDY,

U.S. Senator, Senate Office Building,

Washington, D.C.

DEAR TED: Confirming our telephone conversation of last

Thursday, September 11, 1975. I wish to advise that on June

23, 1975 Senator Burdick introduced a Bill captioned S. 346.

I have been advised by a member of Senator Burdick’s staff

that this Bill was instigated by my testimony before Senator

Burdick’s subcommittee on February 2, 1973 and certain cor-

respondence between Mr. Westphal of the Senator’s staff and

myself dealing with the inundation of the Massachusetts docket

by trivial freight damage cases.

The thrust of Senator Burdick’s S. 346 would be to amend

28 U.S.C. § 1337 so as to insert therein a jurisdictional

minimum requirement that the bill of lading for the shipment

involved in the case exceed $10,000 exclusive of interest and

costs.

To illustrate the very small dollar amounts involved in the

settlement of cases presently being filed in this court, in the

absence of such a jurisdictional requirement, I enclose herewith

an analysis of settlements made in about 200 of these cases

assigned to me, which analysis shows the dollar amount in-

volved in each case is trivial when compared to the cost of

processing a case in a Federal District Court.

The presence of these cases, which, as of September 1,

1975 totalled 6,898 cases pending in this court, is having a

very deleterious effect on the currency of our civil docket as

was noted in the Annual Report of the Director of the Adminis-

trative Office of the United States Courts. (Page XI-57 of the

Report for fiscal year 1975.) Mr. Kirks stated:

Al9

“The case flow of I.C.C. cases in the district

courts continue to show that six out of ten of them

are filed, terminated or pending in only one district

court, Massachusetts. Stated another way, in the

other 93 district courts, on a percentage basis I.C.C.

cases Comprise about a half of a percent of the work-

load. These statistics illustrate how ina single district

a specialized caseload envelopes the entire court,

thereby affecting its overall procedures in disposing

of the civil caseload. It is therefore, no surprise that

this district has the highest per judgeship pending

civil caseload among the 94 courts, 1737 compared

to 278 for the 93 other district courts.”

In our conversation you indicated that you would be amen-

able to using your good offices, with Senator Burdick’s com-

mittee, in bringing this Bill on for a hearing and hopefully

moving it on to enactment. Such enactment would substantially

eliminate use of this court for trivial cases and send them back

to the state courts which are being used in all other parts of

the United States for such litigation.

As a further point of interest, Mr. Kirks States, on page

XI-125, that Massachusetts “accounts for approximately 837

of the national total for this nature of suit. These cases receive

a weight of .57 and seldom require court action.”

In his letter to me of February 20, 1975, Senator Burdicx

asked me to make myself available to testify at the hearing on

S. 346 and expressed the opinion that the hearing would be

held early in the spring of 1975. Despite the fact that this

timetable has been delayed by more pressing matters, I wish

to advise that I am available to testify in support of this Bill

as is the Clerk of our Court.

If I or any member of the staff of this court can be of any

assistance to you or any member of your staff, please do not

hesitate to call.

| ‘

A20

Thank you for your cooperation in this matter.

ANDREW A. CAFFREY,

Chief Judge.

EXHIBIT VII

UNITED STATES COURT OF APPEALS,

FOR THE First CIRCUIT.

Portland, Maine, October 14, 1975.

Hon. EDWARD M. KENNEDY.

U.S. Senate,

Washington, D.C.

DEAR SENATOR KENNEDY: I write on behalf of the Judicial

Court of our Circuit to endorse Chief Judge Caffrey’s request

contained in his letter to you of September 16, 1975, to support

S. 346. As his letter explains in more detail, this bill would

eliminate from federal jurisdiction an oppressive quantity of

small freight damage claims from the docket of the Massachu-

setts district court. The removal of these cases would not only

ease the flow of paper work in the clerk’s office and, to some

extent, relieve judges of the almost ministerial tasks of proces-

sing settlement agreements, but would remove from con-

troversy the presence of such cases in the statistics of the

Massachusetts court.

Each member of the Council has read Judge Caffrey’s letter

and wishes to be recorded as enthusiastically approving it.

FRANK M. COFFIN,

Chief Judge.

A21

Senator Scott. Judge Caffrey?

Judge CAFFREY. The American Law Institute could not pos-

sibly have known about this situation because it did not develop

until after 1969. Second, I would like to make the point that

Mr. Infelise has expressed the great expertise of my colleagues

and myself in matters Federal and as Mr. Westphal has pretty

well brought out, you settle 1,000 out of 1,002 cases, there

is not much expertise called upon.

These cases do not involve sophisticated or difficult legal

ruling by any judge of our court. So I say that the claimants

do not need Federal judge expertise. The judges of the State

courts today are much more conversant with Federal law due

to the recent changes in the legal operation so that these cases

are perfectly adequate for State courts and they are in State

courts in all the other 49 States, which puts to rest any question

that this type litigation cannot be handled by State courts.

With regard to getting these cases tried, they just are not

tried and they are not about to be tried.

With regard to the meat grinder operation Mr. Westphal

mentioned, that would temporarily give some relief but these

cases are being filed five a day, 25 a week, at least 1,200 a

year, so they would be back in a very short time.

On the cost to the United States, the change from the docu-

ment I filed to the one he handed me this morning reflects the

5-percent pay increase.

Mr. Infelise has referred to Judge Caffrey’s problem. The

problem is not Judge Caffrey’s. It is the problem of the people

who would like to have the judges of the Federal court involved

in other litigation.

It is not personal to me. The impact of the criminal docket

has kept the youngest and most vigorous of our six judges

trying nothing but criminal cases all year. This type case is

not going to be the subject matter of any Federal judicial

expertise even if it were necessary which I submit it is not.

A22

With regard to the fact, there may be some cases where it

needs a ruling, a significant case could be procesed for a ruling,

but the mass produced things would be just as well off on the

State side of the slate.

Senator Scott. Thank you, gentlemen. This will conclude

the hearings. We will adjourn the hearings but should there

be something else you would like to submit for the record,

feel free to do so.

(Whereupon, at 11:05 a.m., the subcommittee adjourned

subject to call of the Chair. ]

A23

UNITED STATES DISTRICT COURT

LOCAL RULES

RULE 41.1 DISMISSAL FOR WANT

OF PROSECUTION

(a)(1) Whenever in any civil action the clerk shall ascertain

that no proceeding has been docketed therein for a period of

ONE (1) year, he shall then mail notice to all persons who

have entered an appearance in such a case thet, subject to the

provisions of subsection (a)(3), the case will be dismissed

without further notice thirty (30) days after the sending of the

notice.

(2) After the thirtieth day following the sending of the

notice, without order of the court the clerk Shall, subject to

the provisions of subsection (a)(3), enter an order of dismissal

‘ for all cases on the list. It shall not be necessary for the clerk

to send additional notice of the dismissal to any counsel or

party.

(3) A case shall not be dismissed for lack of prosecution if

within thirty (30) days of the sending of notice an explanation

for the lack of proceedings is filed and the judge to whom the

case is assigned orders that it not be dismissed.

(b)(1) Additionally, each judgé may from time to time give

notice of not less than twenty (20) business days of hearing

on a dismissal calendar for actions or proceedings assigned to

that judge that appear not to have been diligently prosecuted.

Unless otherwise ordered by the assigned judge, each party

shall, not less than ten (10) business days prior to the noticed

hearing date, serve and file a certificate describing the status

of the action or proceeding and showing that good cause exists

for the court to retain the case on the docket. Nothing in this

rule precludes the filing of a motion for dismissal under Rule

41(b) of the Federal Rules of Civil Procedure.

A24

(2) Failure on the part of the plaintiff to file the required

Statement or his failure to appear at the scheduled hearing shall

be grounds for the dismissal of the action.

operate as an adjudication on the merits unless the court on

motion of a party directs otherwise.

A25

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Various Receiver-Plaintiffs,

Plaintiffs,

Vv. Freight Damage Cases

Various Railroad-Defendants,

Defendants.

AFFIDAVIT OF JOHN M. CATALDO

I, John M. Cataldo, being duly sworn depose and state:

1. I have been proprietor of National Freight Traffic Service

since 1945. In this capacity I have filed claims on behalf of

the named Plaintiff-Receivers in the pending freight damage

cases.

2. At the time of the filing of the freight loss and damage

claims which ultimately became the subject matters of the

cases pending before this Court, the defendants were common

carriers subject to regulation by Federal Statutes, and by the

decrees of the Interstate Commerce Commission. Accordingly,

the defendant railroads were mandated to compile all pertinent

data with respect to the transportation of perishable shipments

and they were compelled to convey this information to the

claimant upon presentation of a freight loss and damage claim.

This exchange of pertinent documents was faithfully carried

out by the defendant carriers and it obviated the need on the

part of the plaintiffs to seek additional discovery upon the

commencement of litigation. This federally mandated inves-

tigative requirement, plus the sheer number of freight damage

A26

cases filed in this Court, prompted deviations from the normal

procedures utilized to prosecute the average lawsuit. Since

1965, over 20,000 lawsuits involving freight loss and damage

claims have been processed in this Court. This enormous vol-

ume of cases created the imperative for the Defendants, the

Plaintiffs, and even the Court to forgo the usual methods for

the prosecution of the cases.

3. In the late 1960’s, approximately fifteen freight damage

cases were tried and judgments entered in the U.S. District

Court in Massachusetts, establishing the law on various con-

tested points. Under pressure of the Court, settlement confer-

ences were then held. A District Judge would give trial lists

to the parties and tell them to confer and come back with status

reports. For years thereafter, freight damage cases were settled

voluntarily by the parties on the basis of the decided law

without the need for additional trials. The railroads insisted,

however, that damage claims become lawsuits first because

railroad Freight Claim Rules required that stipulated settle-

ments be entered as court judgments in order to allow paying

carriers to seek reimbursement from participating railroads.

This insistence upon court judgments by the railroads was

directly responsible for the avalanche of lawsuits which inun-

dated this Court.

4. Although in a few instances interrogatories and answers

to interrogatories were filed subsequent to the resolutions of

the questions of freight damage law, it was the consistent

practice of all the parties that, except for the entry of judgment,

the freight damage cases would be settled or dismissed without

docket activity irrespective of the length of time a case was

on the docket.

5. Thus, since 1968 thousands of freight loss and damage

cases have been resolved in this Court without the need for

unnecessary discovery procedures. Had the Plaintiffs under-

taken additional motions in this Court for discovery and for the

res

A27

production of documents previously submitted to them by the

defendants, such actions would have been deemed by the rail-

roads as unwarranted harassment. Yet, aside from the final

judgment, which was predicated upon agreed statements of

facts, no activity of any kind was recorded on the docket. The

fact that all unresolved cases remained on the active docket

compelled continual activity in the prosecution of the Cases,

which resulted in the settlement of thousands upon thousands

of cases.

6. The filing of the Blanchette case, however, produced a

dramatic interruption of the smooth functioning of the settle-

ment procedures developed over many years between the rail-

road Defendants and the Receiver-Plaintiffs. The Blanchette

case, according to Penn Central attorney John Hally, was spec-

ifically intended to cause such disruption and to bring about

wholesale dismissal of all pending suits. It must be noted,

however, that this case involved extensive discovery proce-

dures which led to the production of millions of documents,

including thousands from the pending cases. This, in itself,

constituted an intense form of “prosecution of the cases.”

Subsequent to the filing of Blanchette, the Southern Pacific

Railroad, in a further effort to forestall the continuing out-of-

court settlements, introduced a “Motion for a Moratorium” on

such settlements. Defendant’s Memorandum in response to

Court Order of July 17, 1991, makes reference to this Motion

and states that “Attorney Frank Infelise . . . opposed the request

(for a Moratorium) on the basis . . . that the commencement

of the (Blanchette) litigation should not disrupt the judicial

processes of this Court.” The Memorandum continues, “During

the entire pendance of Blanchette (from September 1978 until

February 20, 1987. . . the Receiver-Plaintiffs did nothing to

prosecute the Law Suits.” The stated objective to be attained

by Attorney Infelise in his Opposition to the Moratorium was

to continue the out-of-court settlements strongly favored by

A28

some railroads and vehemently opposed by other railroads.

Unfortunately, even though the Motion for a Moratorium was

denied by the Court, a former Counsel to Penn Central Railroad

made it clear to those railroads in favor of continuing the

settlement process in existence before Blanchette, that the Penn

Central would, henceforth, refuse to reimburse participating

railroads for Penn Central’s proportion of any claim settle-

ments. Subsequent to this action all railroads, without excep-

tion, ceased to participate with the Plaintiff-Receivers in any

out-of-court settlements. In short, the Penn Central Railroad

and the Southern Pacific Company attained de facto what they

failed to attain de jure.

Even during the pendance of Blanchette, and subsequent to

the administrative closing of the cases, continual conversations

and meetings occurred between Plaintiffs’ attorneys and the

legal representatives of many of the defendant railroads. These

exchanges constituted repeated attempts to importune the de-

fendanis to resume the practices of settlement extent prior to

Blanchette. As a result of this continual dialogue, upon final

adjudication of Blanchette, the Union Pacific, Western Pacific,

Missouri Pacific, and Seaboard Coastline Railroads settled all

pending cases out-of-court. True to its promise, the Penn Cen-

tral Railroad refused to reimburse those railroads for their just

apportionment under appropriate Freight Claim Rules, so much

so that the Seaboard Coastline Railroad commenced litigation

against the Penn Central in an effort to recover that which they

believe is justly due them.

Subsequent to Blanchette, and to the filing of 3000 individual

motions to restore the pending cases to the active docket, Judge

Tauro ordered al! parties to negotiate settlement of all claims.

To this end, Plaintiffs’ representatives journeyed to California

on two separate occasions to conference claims over a span

of ten days with the Southern Pacific Railroad. The Southern

Pacific representatives, in turn, visited Boston on at least three

A29

occasions to discuss settlements. Similarly, several confer-

ences were held with the Santa Fe and Penn Central Railroads.

This activity was in addition to the items listed in the “Summary

of Litigations Activity.”

7. In Defendant’s Memorandum in response to Court Order

of July 17, 1991, it is alleged that prejudice would result to

the defendants inasmuch as “many of the documents relating

to the more than 2,200 shipments involved in the Lawsuits

have, in many cases, been inadvertenly lost or destroyed.” As

previously explained, the defendant railroads, in compliance

with Federal Regulations, have previously conveyed to the

Plaintiff-Receivers all pertinent documents which resulted from

their investigation of the freight loss and damage claims, and

the Plaintiffs would be happy to return copies of Defendants’

own documents should they have been lost or destroyed.

8. The second way in which the Railroads allege that prej-

udice would result relates to the defendants’ professed reliance

for the defense of the cases upon “oral testimony of lay witnes-

ses whose availability and ability to remember events which

occurred anywhere from 15 to 20 years ago is unlikely.”

Throughout the years, cases have been tried principally in the

Boston Federal District Court. Virtually all of the cases previ-

Ously tried covered trans-continental shipments transported by

many different railroads over a span of 3000 miles. Not one

witness who testified on behalf of the defendant railroads was

an “eye-witness” to any segment of the movement, either at

origin, in transit, or at destination. Before deregulation, the

railroads were transporting tens of thousands of cars of fruits

and vegetables, and thus the probability of finding an employee

who had an independent recollection of any specific rail ship-

ment was highly unlikely. Furthermore, each of the pending

claims alleges some specific act of railroad negligence such

as delay, refrigeration failure, or bruising resulting from rough

handling in transit. In rail shipments of 3000 miles, it is vir-

A30

tually impossible to become an eye-witness to unpredictable

delays which cause the missing of a vital connection, or to

the fact that the refrigeration did not malfunction in transit,

but was on a defrost cycle, or that a freight car was not bumped

at a speed in excess of the allowable limit to cause extensive

bruising. Even in those instances where a railroad representa-

tive personally inspected the merchandise at its final destina-

tion, the railroads presented as a witness their Chief Inspector

who had not seen the shipment in preference to the individual

who physically performed the inspection.

9. Accordingly, in the past, those called upon by the rail-

roads to help defend their cases were “expert” witnesses who

drew conclusions from business records and not from a recall

memory. Thus, the time span between the date of shipment

and the trial of the case, be it 1 or 10 or even 20 years, was

rendered totally irrelevant in the prosecution of the cases.

Hence, the burden should be placed upon the railroads to

identify the individuals who were eye-witnesses to the shipment

and who are now handicapped because of the passage of time.

10. Were it to develop that the railroads could produce such

eye-witnesses, each case should be handled on a case-by-case

basis. Justice would hardly be served by the dismissal of 2200

cases because a few aberrations might present themselves.

11. As previously noted, the de facto Moratorium on settle-

ments which resulted from Blanchette, provoked the adminis-

trative closing of 2200 cases, thereby delaying their settlement

for twelve long years. Yet, only nine Receiver-Plaintiffs were

party to the Blanchette case. There are an additional twenty-

nine Receiver-Plaintiffs not included by the railroads as defend-

ants in Blanchette who have become innocent victims by virtue

of the administrative closing of their pending lawsuits. This

injustice would be severely compounded by the dismissal of

cases which would have been resolved on their merits years

ago had they been allowed to remain on the active docket.

A31

12. It has become my firm conviction, unfortunately, that

the cooperative spirit which permeated the pre-trial conferences

before Blanchette has been supplanted within the ranks of the

few remaining defendants by the expectation that the pending

cases will either be dismissed on technical grounds, or remain

administratively closed, a state of limbo which will provide

neither the legal nor financial incentives for the cases to be

resolved on their merits. Plaintiffs, in good faith, have attemp-

ted every prudent remedy known to them to diligently prosecute

cases which have been administratively closed. The fact that,

thus far, these efforts have not been successful, ought not be

interpreted as a lack of effort, willingness or eagerness to

diligently prosecute the cases. Recent history suggests that

these cases will not be resolved until they are restored to the

active docket. This action of restoration will remove the shack-

les of the administrative closings from the hands of the plain-

tiffs. Only then will it be apparent to all that the plaintiffs

Stand ready to prosecute these cases with as much diligence

as is required, a position which the plaintiffs have held since

the date of each individual filing.

Signed this 20 day of September, 1991, under the pains and

penalties of perjury.

/s/

John M. Cataldo

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.