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Kelly v. Greer

decided: September 7, 1966.

JANE G. KELLY
v.
AGNES J. REEVES GREER AND MELLON NATIONAL BANK AND TRUST COMPANY JANE G. KELLY, INDIVIDUALLY AND/OR ON BEHALF OF HER CHILDREN, RICHARD GREER RAESE, JOHN REEVES RAESE, DAVID AUBREY RAESE AND JANE KELLY, APPELLANTS. JANE G. KELLY V. AGNES J. REEVES GREER AND PITTSBURGH NATIONAL BANK



Reargued May 19, 1966.

Staley, Chief Judge, and Kalodner and Forman, Circuit Judges.

Author: Kalodner

Opinion OF THE COURT

KALODNER, Circuit Judge.

These are appeals from a Memorandum Order of the District Court for the Western District of Pennsylvania entered April 14, 1965 dismissing all pending motions in this action and requiring the parties to proceed to carry out the terms of a "Settlement Stipulation" in accordance with the District Court's instructions. The Order was a consequence of a Mandate sent down by this Court, following our Opinion in these preceedings, 334 F.2d 434 (1964), which vacated earlier Orders of the District Court and remanded the cause for further proceedings.

Plaintiff, Jane G. Kelly, complains that the Memorandum Order of the District Court is improper in that it deprives her of her right to pursue her legal remedies. We find no merit in this contention.

For the purposes of this appeal, the history of this long, drawn-out litigation involving an intrafamily dispute between daughter, Jane G. Kelly, and mother, Agnes J. Reeves Greer, may be summarized as follows: In 1959 the present plaintiff brought an action in the Western District*fn1 against the present defendant and the Mellon National Bank and Trust Company seeking an adjudication regarding her rights in certain shares of stock of the Union Gas Company of Canada, Ltd. held by the Bank. In 1961 plaintiff brought a second action in the Western District against the defendant and the Pittsburgh National Bank to recover dividends deposited in the Pittsburgh Bank in defendant's name. Both of these suits were in rem actions, service of the defendant having been accomplished pursuant to 28 U.S.C.A. ยง 1655. In May 1961, the District Court consolidated the two actions, and this was upheld on appeal. Kelly v. Greer, 295 F.2d 18 (3 Cir. 1961).

There followed a period of extensive discovery and pretrial extending to January 1963. The parties then began negotiations to settle the litigation as well as all other existing disputes between them. From time to time, the District Court assisted in these negotiations. On January 22, 1963 the parties advised the District Court that a settlement had been reached and submitted a "Stipulation and Agreement" which provided for a general resolution of all disagreements between the parties and called for the dismissal of all actions then pending between plaintiff and defendant. The "Stipulation and Agreement" was then made part of the record. Pursuant to its terms, counsel executed a Stipulation for the dismissal of the civil actions in the Western District, and the District Court entered an Order dismissing the suits with prejudice on January 23, 1963.

Execution of the "Agreement" was to be carried out in accordance with paragraph XX which read:

"XX. Prior to March 1, 1963, the attorneys for the parties will draw up the definitive agreement needed to carry out the above plan and will establish a calendar for the transfer of assets or delivery of documents or dismissals needed. It is intended that the details of this settlement will be carried out before May 1, 1963, except that all pending suits shall be dismissed with prejudice forthwith."

Later, a dispute arose between the parties concerning compliance with the terms of the settlement agreement. On March 11, 1963 plaintiff filed a motion to vacate the dismissal Order and to compel performance of the "Settlement Stipulation." On April 5, 1963 this motion was withdrawn, and an ancillary complaint was filed seeking damages for alleged breach of the settlement agreement. On July 9, 1963 a second ancillary complaint was filed requesting a judgment declaring that the settlement agreement was valid and enforceable. Defendant moved to dismiss the complaints for lack of personal jurisdiction, and plaintiff moved for summary judgment on her second ancillary complaint. On October 17, 1963 the District Court dismissed the complaints for lack of jurisdiction. Thereafter, plaintiff moved to vacate the dismissal Order of January 23, 1963. The motion was denied on November 13, 1963 and plaintiff appealed.

In Kelly v. Greer, 334 F.2d 434 (3 Cir., 1964), we held that "the district court has jurisdiction to vacate its own orders of dismissal which were based upon the stipulation of the parties in reliance upon their settlement agreement." (334 F.2d at 436). We vacated "the orders of October 17 and November 13, 1963", and remanded "the cause to the district court with directions to vacate its orders dismissing the original actions and reinstate them to the status quo existing immediately prior to the entry of the orders of dismissal, i.e., following the reading into the record of the settlement agreement but prior to the orders dismissing the actions." (334 F.2d at 437)

In accordance with the Mandate of this Court, an Order was entered by the District Court on September 23, 1964 vacating its Orders of October 17 and November 13, 1963 and setting a time for a hearing on all matters presently pending in the litigation; viz., the question of reinstating plaintiff's original actions, and the status of plaintiff's two ancillary complaints and the motion for summary judgment. Prior to that hearing, plaintiff filed two additional motions; one for the entry of a consent judgment, nunc pro tunc, and the other for injunctive relief pendente lite.

On December 17, 1964, a hearing was held at which time the District Court dismissed the petition for injunctive relief and reserved ruling on the other pending motions. Subsequent to this hearing plaintiff filed an amended motion for injunctive relief and a motion to calendar her ancillary complaints for jury trial. On April 14, 1965 the District Court entered the Memorandum Order under review. This Order stated that "the parties are bound by the terms of the settlement stipulation read into the record on January 22, 1963", and that ...


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