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Gamble v. Pope & Talbot Inc.

July 20, 1962

JOHN GAMBLE
v.
POPE & TALBOT, INC. V. JARKA CORP. OF PHILADELPHIA. APPEAL OF TIMOTHY J. MAHONEY ET AL.



Author: Mclaughlin

Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE and SMITH, Circuit Judges.

McLAUGHLIN, Circuit Judge.

On April 24, 1958, John Gamble, a longshoreman, commenced a personal injuries action in the United States District Court for the Eastern District of Pennsylvania against Pope & Talbot, Inc., a shipowner. On September 22, 1959, the latter with leave of court impleaded Jarka Corp. of Philadelphia, the stevedoring company which had employed Gamble. The case was tried in March of 1961 resulting in verdicts in favor of Gamble against Pope & Talbot with indemnity in favor of the latter against Jarka Corp. The merits of the litigation are not before us. Our problem is solely concerned with pretrial procedure.

In effect in the United States District Court for the Eastern District of Pennsylvania are two "standing orders" which provide as follows:

"PRE-TRIAL CONFERENCES IN OTHER THAN PROTRACTED CASES

"(Adopted October 23, 1958)

"1. The Clerk of the Court shall list for pre-trial all civil cases which have been answered for trial on the Jury and Non-Jury Preliminary Call lists. The filing of a pre-trial memorandum by all counsel is mandatory.

"3. * * * Not later than 30 days after the publishing of said [civil pre-trial] list, counsel for plaintiff shall file a written pre-trial memorandum with the Clerk of the Court and serve two copies on all other counsel of record.

"Within 30 days of receipt of such pre-trial memorandum, all counsel served with plaintiff's memorandum shall file a written pre-trial memorandum with the Clerk of the Court and serve two copies on all other counsel of record. * * *

"Plaintiff's pre-trial memorandum shall contain the following:

"C. The names and addresses of all witnesses (except rebuttal) whom the plaintiff expects to call to testify at the time of trial.

"Defendant's counsel shall also include in his pre-trial memorandum the same material pertaining to defendant's case as required of plaintiff in paragraphs C, * * *.

"IMPOSITION OF SANCTIONS WITH

"@IMPOSITION OF SANCTIONS WITH RESPECT TO PRE-TRIAL PROCEDURES

"(Adopted February 8, 1960)

"For failure to appear at a pretrial conference, or to participate therein, or to prepare therefor, the Court, in its discretion, may make such order with respect to the imposition of fines, costs and counsel fees, as is just and proper; with respect to the continued prosecution of the cause (complaint, cross-claim or counterclaim), a dismissal may be entered, or as to the defense, the preclusion of all or any part thereof, as is likewise just and proper."

In compliance with the October 23rd standing order, counsel for the plaintiff and third-party defendant filed their pretrial memoranda with the court and served their adversaries with the required copies. The defense memorandum was not filed until the day before the pretrial conference. It was more than ten months overdue. There is no question but that counsel's lapse was unintentional. After receiving regular notice from the court clerk of the ...


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