Schiavone v. Fortune

LOCATION: Hardwick's Apartment

DOCKET NO.: 84-1839
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Third Circuit

CITATION: 477 US 21 (1986)
ARGUED: Feb 26, 1986
DECIDED: Jun 18, 1986

Morris M. Schnitzer - On behalf of the Petitioners
Peter G. Banta - On behalf of the Respondents

Facts of the case


Media for Schiavone v. Fortune

Audio Transcription for Oral Argument - February 26, 1986 in Schiavone v. Fortune

Morris M. Schnitzer:

In any case, an outcome, not to be rested on adjectives or adverbs, but it said something when in point of policy every court which comments on it says the right road is this direction and somehow I am compelled to take the other one.

Well, I submit that that is not a penultimate compulsion for as this Court wrote the rule, it can read the rule and the reading of the rule can match its purpose and its purpose at least was unmistakeable in 1966.

There are... there is another reason.

Justice Stevens by his question noted that this case belongs with misnomers.

Now, there is no state system of procedure I know that is today so primitive that it would labor, much less gag, over the correction of misnomer.

Now, I think there's something more than anomalous if in 1986 in this Court a standard application, correction of misnomer as distinguished from other party changes is when measured by procedural developments throughout the country, regressive.

And yet that's what it would be, at least by comparison.

I have already said that in my outlook any rule, any rule in this this book which applies in such a way as to blemish, deform, much less screen out the merits over procedural errors which are correctable without prejudice--

Mr. Schnitzer, one of the purposes of the rules is to require thing to be done in a particular period of time.

You have to have some time limits.

Morris M. Schnitzer:

--Of course, and I advocate it, Your Honor.

I advocate it exactly as defined by the Committee's comment in my reading, and by Judge Feinberg in his reading of that, and to other circuits as well, i.e. the very same period of time and not any longer than would be appropriate to bring notice home to this very same party had this very same party been correctly named in the first place, no double standard, no endless stretch-out.

All things must end including litigation and stages of litigation, but no double standard.

Well, of course the reason the Third Circuit said the double standard was because your case is different than that of the kind you say it should be analogized to.

Morris M. Schnitzer:

On the contrary, Your Honor.

The Third Circuit merely shrugged and sighed and said, the rule is too literally written to allow us to infuse it with some higher purpose, and I say that no rule in this book is written in that fashion.

Well, the higher purpose is to let in people who make mistakes?

Morris M. Schnitzer:

Well, of course, Your Honor, because it is part of a system of procedure to involve and to cope with frailties, not only of the litigants which gives rise to the meritorious claims, but even lawyers who sometimes fall below the standard of perfection, as I'm sure I do and have, and I remember some of those episodes.

Now, the rules have flexibility.

They were written to have a little give so that the elbows are not constrained or tied to the frame.

They were meant not to be loose, heaven forbid, but they were meant to move slightly, particularly in the three classic instances which are so familiar to any practitioner, and that is, you do have misnomer, there is the oversight of forgetting to tag one additional party, and then there are the occasions when you aim the arrow at A, only to learn later on B.

Now, no system except a narrow interpretation of 15-C bars that, has ever barred that, by the way, past what our former Chief Justice Vanderbilt used to call the special pleading which Baron Park made so well known.

So, our system, our system, the federal civil practice system, is quite capable of dealing with mistakes and 15-C was designed exactly to do that, and the question is, will it work.

Your Honor, if any time is left I reserve it for rebuttal.

Warren E. Burger:

Mr. Banta.

Peter G. Banta:

Mr. Chief Justice, and may it please the Court, petitioners would have this Court, in the guise of doing justice in their particular cases, engage in a radical enterprise, namely amending a federal rule in the guise of construing it, and establishing a principle which I think is novel in the Federal Rules, that the clear language of the Rules may be disregarded and new language implied into the rule when the Court might prefer the result so obtained in a particular case.

Are you suggesting that any judges or any courts who disagree with your view are radicals?

Peter G. Banta:

I think the Second Circuit has disagreed with it, and other circuits who have implied the period of reasonable service as an additional time.

I think that is what they have done.

As often happens in criminal cases, if the complaint here had described Fortune a.