Link v. Wabash Railroad Company Page 11

Link v. Wabash Railroad Company general information

Media for Link v. Wabash Railroad Company

Audio Transcription for Oral Argument - April 03, 1962 in Link v. Wabash Railroad Company

John Bodle:

This is found only -- I suggest to the Court by the fact that he had never taken the least initiative to attempt to move the case forward.

William J. Brennan, Jr.:

Aren't you really suggesting that he was holding it over your head in hopes that the railroad would pay substantive settlement?

John Bodle:

Yes Your Honor that's exactly what I'm suggesting.

You said something about on what's here --

Earl Warren:

Well --

-- is that a --

Hugo L. Black:

The District Court's ruling on this?

John Bodle:

The District Court has a one year rule permitting dismissal where a case has been inactive for that amount of time.

Incidentally, of course that's only one type of lack of prosecution, a failure to comply with the border or a setting is a pacific type of failure to prosecute which we had involved here.

William J. Brennan, Jr.:

Incidentally under the Federal Rules, if you have followed the motion route on his none appearance, would there have been any requirement under the rule that you served a notice of motion (Voice Overlap) --

John Bodle:

A motion which originates with the defendant, of course I would've had to file a motion and notice of that would've gone to the party.

But here where the trial court moves sua sponte it has already exercised its discretion and it knew from the telephone conversation of counsel of the secretary where he alleged the facts to be and the door of the trial court was opened under the Rule 60 (b).

If the counsel for petitioner felt that he had not explained all the facts and that he had meritorious facts to present that would have made the trial court exercise its discretion in the opposite manner --

William J. Brennan, Jr.:

Well what I'm getting at is --

John Bodle:

-- he could've --

William J. Brennan, Jr.:

I think you know that you had a motion --

John Bodle:

Which I had --

William J. Brennan, Jr.:

You did not --

John Bodle:

-- rushed out and did not file.

William J. Brennan, Jr.:

Did not file but had you filed it and Judge Swygert chose to proceed under it, there could not have been any action of dismissal that day, there would've had to be a service of the motion on your adversary.

John Bodle:

That's correct.

That's right Mr. Justice Brennan.

By the same talking, the courts often have power to make a decision and then a notice period is granted and of additional facts are desired to be presented.

They are presented as in a case where a third party complaint is filed or counterclaim is filed.

The party can be heard and the action set aside.

This is the whole purpose of Rule 60 (b).

William J. Brennan, Jr.:

And incidentally, was -- was there a motion before Judge Swygert to set aside the order of dismissal?

John Bodle:

No, Your Honor and this is the last point I want to make.

I think this is of greatest significance because if there had been any facts which the counsel wanted to bring before the trial court to try to explain exactly what is undisclosed alleged work in another city was and he never filed any affidavit or anything about that.

He could have and we submit should have in fairness to this Court come before the trial court and said, "Now here are my facts.