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Orange Theatre Corp. v. Rayherstz Amusement Corp.

August 6, 1942


Appeal from the District Court of the United States for the District of New Jersey; Thomas Glynn Walker, Judge.

Author: Goodrich

Before BIGGS, MARIS, JONES, and GOODRICH, Circuit Judges.

GOODRICH, Circuit Judge.

This action is brought to recover treble damages for alleged violation by the defendants of the Sherman and Clayton Anti-Trust Acts. 15 U.S.C.A. ยง 1 et seq. Suit was filed in the District Court of New Jersey. That court granted the plaintiff's petition for process and ordered the respective United States Marshals to serve the defendants in the districts wherein they resided, all outside the District of New Jersey. This was done on October 17, 18 and 21, 1940 respectively for various of the defendants. On November 7, the first of two stipulations was entered into by counsel for all parties, extending the time "within which the said defendants may answer or otherwise move with respect to the Complaint herein, * * * ". The second stipulation postponed the date still further. The stipulations were duly filed with the Clerk of the District Court However, there was no order of the court allowing or disallowing either stipulation. Within the extended period the defendants filed a motion to dismiss the complaint on the basis of the venue being improperly laid. This motion was granted by the District Court and the plaintiff appeals.

Under the statute a defendant is to be sued in the district in which he is an inhabitant.*fn1 The defendants' objection to venue, therefore, is well taken*fn2 unless they have lost it. On argument and reargument the question submitted for determination was whether the stipulations for the extension of time entered into on behalf of the defendants had lost them their right to object to the venue. This issue assumed that the stipulations were effective and binding upon the parties and the court. We believe this assumption was erroneous.

Rule 6(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, provides that when "an act is required or allowed to be done at or within a specified time [under the Rules], the court for cause shown may, at any time in its discretion" enlarge the time limit, if the request therefor is made before the original period expires, or if later, upon a showing of excusable neglect. There was, as already noted, no order by the court extending the time. Furthermore, the stipulations themselves nowhere show any cause or excusable neglect which might move a court to do so, but merely state that the "time * * * is extended." Clearly, there was no compliance with any of the requirements of Rule 6(b). Is the method provided for by that rule exclusive or can litigants by their own stipulation effect an enlargement of time?

There is a lack of unanimity of opinion by the propounders of the Rules upon this point.*fn3 It is noteworthy, however, that in other places there are specific Rules providing for stipulations by the parties with no mention of court approval. Thus, the parties themselves may by stipulation designate the manner of taking depositions,*fn4 waive the signing of depositions by witnesses,*fn5 consent to a trial without a jury,*fn6 dismiss the action,*fn7 agree for a jury of less than twelve or that the verdict of a stated majority shall be the finding of the jury,*fn8 agree to the finality of a master's findings of fact,*fn9 determine the parts of the record, proceedings, and evidence to be included in the record on appeal,*fn10 correct the record on appeal*fn11 and finally but significantly, enlarge the time for the service of opposing affidavits on a motion for a new trial based upon affidavits.*fn12 With the exception of the last instance, in every case where stipulations are permitted by the Rules, a definite objective is sought: shortening the time of trying a case. And, even the exception is limited so that the extended time cannot exceed 20 days. It is of moment that Rule 6(b) which makes no allowance for enlargement of time by stipulation without a court order, expressly provides that by 59(c) the parties may do this in the case of a motion for a new trial based upon affidavits.

However, in addition to implications and technical rules of construction, there exists a sound policy for denying litigants the privilege of enlarging time for pleading by mere stipulation.The guiding mandate of the Federal Rules is that "They shall be construed to secure the just, speedy, and inexpensive determination of every action."*fn13 As previously noted, the express provisions in the Rules allowing stipulations aim at this goal. But, if the practice followed by the parties in this case were permitted, the purpose of the rules would be departed from. Litigants could, as they have done in the past, materially prolong the time for the trial of a case to suit their convenience and interests.

The courtesies extended by counsel in such instances, although commendable as professional comity cannot be permitted to interfere with what we think the Rules require. And our conclusion is that the Rules require court approval to make effective such stipulations as those here involved.

We have then this situation: the stipulations extending the time were ineffective and the defendants are in the position of having failed to plead or otherwise to defend within the twenty days allotted under Rule 12(a). They are, therefore, in default. There has been no entry of default in accordance with Rule 55(a).*fn14 But that entry is a purely formal matter.

When this case is remanded the defendants may apply to the trial judge to be permitted to answer under Sections 55(c) and 60(b) of the Rules. Permission to plead after the allotted time is a matter for the discretion of the trial judge, but we have no doubt that upon remand the trial judge will take into account the fact that the stipulations which we now hold invalid to create an extension were, nevertheless, relied upon by the parties.

The order of the District Court is reversed and the case remanded for further proceedings not ...

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