William Kelly v. Pennsylvania Railroad Company

attorneys’ in the instant the contention defendants fees party case, only a Clayton allowed Film was were excessive. Paramount of5 action. Section to such and the reversed 16, provides Act, that such 15 U.S.C.A. § remanded, cause grant with instructions to prima facie evidence a decree shall be the defendants a new trial. respecting which such “as to all matters estoppel an or decree would be parties Admis thereto.” as between the

sibility by a refer must be determined principles estoppel.11 We

ence to adjudicated find no in

can issue ma which would be Paramount decree case, any

terial issue in the instant estoppel

or would constitute an against any party William KELLY case.12 to the instant conclude that the trial court com We admitting prejudicial mitted error in PENNSYLVANIARAILROAD such decree. COMPANY. No. 11689.

By injunctive decree the trial its prohibited Appeals Paramount Film court licensing United States Court of Third Circuit. pictures, other than for 3, multiple, Argued simultaneous exhibitions Oct. 1955. specified each two zones in the decree. DecidedDec. 1955. zoning The result is that downtown theatres are all in zone one only major and the theatre in other Thus,

zone is the Villa Theatre.

fact, gives the decree Theatre Villa right to all Paramount films on first

run, without clearance between it and competing

other theatres.

In the event that on a retrial the Villa prevails, opinion

Theatre we are of the the court would not be warranted entering injunctive decree, such

as it heretofore entered. Such a decree

more than removes the effects of the

alleged conspiracy, should it be estab- gives actually

lished. It the Villa Thea- competitive advantage. positive

tre a It go put no further than

should they position

parties enjoy conspiracy had existed.13

if no reversed, is to be

Since unnecessary pass upon

we deem Loew’s, Inc., Amusements, Loew’s, Inc., v. Cinema 11. v. Milwaukee Towne Inc., Corp., Cir., 19, 23, certiorari certiorari 347 U.S. 74 S.Ct. denied denied 345 U.S. 73 S.Ct. L.Ed. L.Ed. 1374. Machinery Corp. Shoe 12. See United States, 451, 458, 459, United U.S. 66 L.Ed. S.Ct. Philip Price, Philadelphia, (F. Pa.

Hastings Griffin, Jr., Pa., Philadelphia, Barnes, Dechert, Price, Myers Rhoads, & Pa., Philadelphia, pellant. brief), ap- on the Richter, Philadelphia, B. Nathaniel Pa., appellee. BIGGS, Judge,

Before Chief GOODRICH, Judg- MARIS and Circuit es. Judge.

MARIS, Circuit has moved dismiss an from the defendant upon the district court entered plaintiff’s a verdict in the ren- favor brought dered an action under the Liability Employers’ Act, 45 U. seq. S.C.A. 51 The motion et is made § ground upon judgment yet appealable. final and hence not entered on the ver dict in on the district court 1954. Five later the defend ant filed its motions for in its favor n.o.v. and for a new trial. argument motions on for came May 20, on court June the district entered judg order its motion for dismissing ment n.o.v. and a new latter trial. The action ground stated motion for a new trial had been aban doned the defendant. Two later the defendant filed for re- argument peal action a civil making asserting abandoned had not is terminated motion, the district not com- on June trial and does again petition granted defendant’s to the the mence run until motion has (cid:127)court reargument provides new 59(b) its motion for a of been denied. Rule that for a that at bar informed motion a be served We were shall trial.1 place. yet days entry reargument On not later than 10 after the not taken had judgment. present the defendant filed of the In the case 1955 the June appeal days from of the motion was five after the court its notice filed (cid:127)district entry sug- been entered of which had There is no the gestion against 24, 1954. on that it the it was served was, therefore, clearly same time. It appeal that contends the timely. pre- by was the defendant thus taken timely mo- defendant’s mature since the points defendant, however, reinstated trial had been tion for a new to the that fact the motion was dis granting by re- court’s order district the by missed the district court June argument pending and undeter- and was argues ap 1955 and it that the time appeal taken. the the mined at time again to run on that peal commenced is correct that this contention We think the action date and that therefore, must, appeal be and that the reinstating (cid:127)dismissed. reargument granting in viola of it was 73(a), 28 U.S. Civil Procedure operate 6(b) did not of Rule part: C.A., provides pertinent period. appeal stop the the by permitted an is “When contrary agree. we the do not On We a to a court from district court law appeals time of a district the no have doubt the appeal may taken shall 30 dismissing an be be court, a mo or after days judg- from the ap an to entertain * * appealed ment *. The reargument motion plication the time for is the thereupon motion to reinstate by timely terminated a motion made reargued.2 Moreover order it to be pursuant any rules herein- days action, than 10 if taken more such enumerated, after and the full time does after fixed in this subdivision 6(b) prohibition of Rule violate the commences to run and is to be com- extending against by Rule time fixed puted any from the serving motion for following upon orders made time- * ** reargu ly application for motion For an under such rules: trial. denying a motion a new trial prior trial of a for a new motion under Rule 59.” regarded motion not to as itself a is be a new as a even renewal It will thus seen be simply request ap- It is such motion.3 the time for Dunagan Appalachian Co., day Power 4 On the same court ordered Cir., 1928, 58, 59; execution or Klein’s Out enforcement stayed Lipton, 2 ment be let v. F.2d until 10 after “the disposition by final certiorari denied 340 U.S. of the issues raised petition reargument.” L.Ed. defendant’s Nielsen v. Ara S.Ct. Co., Cir., 1953, We assume bian American Oil the court here meant by Peters, raised also Blaine v. issues F.2d 391. See a new U.S.App.D.C. 207, peti- trial since issues raised F.2d 887. appear suggestion contrary in to the Ter- disposed been have of when the Lines, Cir., rasi v. South Atlantic granted. upon thereby its action court reconsider reinstated within two original If had motion. dismissed been original granted motion is heard it. As we have seen mo- original papers just as tion for a new trial was filed within the anew Having previously 59(b). heard or had never been limited if it been reinstated for it must determined.4 regarded having still be been so filed that if It conceded accordingly given and must the effect grant reargument does not district court stopping the time for while trial until after new of the motion for a pending it remains and undetermined. Rule for time allowed the yet Since the reinstated motion has original 73(a) denial run the has from been court, judgment denied the the of the court motion the action of the appealed regarded from must be as still doing subsequently the will affect so lacking appealable finality. orig judgment finality appealable of the Accordingly the will be dis- filing inally mere entered. For the missed. reargument mo of a stop not itself a new trial does running appeal period.5 And BIGGS, the the Judge (dissenting). Chief subsequent of the the action appealable I think the is an again denying motion the U.S.C., 1291, 28 one under Section Title running operate stop the could not majority and that the decision of the already fully which had run. of time is erroneous. reargument of if directs But the court 24, 1954; On the thereby motion for a new trial and the against verdict secured a the defendant- appeal period it the reinstates within 58, appellant $75,760. Rule Under original pendency mo revived the F.R.C.P., the clerk entered again operates to terminate the tion running forthwith on this verdict. On Novem- appeal. In such of the time for ber within ten after commence to case the time will judgment, defendant-appellant again computed run will be motions, made two one for the date of of the court’s subse 50(b), n.o.v. under and an- Rule motion, quent it is order if 59(b). other for a new trial under Rule judgment which denied. Meanwhile the 6, 1955, On June “dis- court below subject pending motion is the missed” the motion for a trial on new lacking regarded a new trial must as ground abandoned .that had been appealable finality. the motion for n. denied days later, us dis o.v. the de- In case before Two June reargument fendant-appellant petition filed a trict court directed of the re- argument. Eight days later, on June motion for a trial6 and defendant’s regarded C.J.S., Orders, 4. must obiter Motions § 226 F.2d as dictum since the motion for a Hess, F.2d Marten case, being oral, new trial could Products Deena Co. v. United Brick regarded proper hardly be as a Clay America, Cir., 1952, & Workers complying trial with Rule 612; Randolph Randolph, (b). Pictures, Fine v. Paramount U.S.App.D.C. Accordingly 181 F.2d 300. reargument the motion of the mo- 6. It noted will be the defendant’s a new Terrasi case petition proper raise new did not the first motion which had merely questions and, but to the called made in the case since it was been attention fact that it had not court’s . filed quite properly abandoned for a new trial. it was held stop appeal. of the time for granted 6, 1955, dis- court below on June the court below petition for a new trial and missed the motion for a new trial and on the stayed judgment. judgment n.o.v., denied

enforcement taking defendant-appellant period filed the time for On June provided 73(a) appeal. Rule started its notice again. however, point, At this comes amended, provides that disagreement. defendant-appellant “ * * * a United district court States that, contends argument when for re- taking any may not time for extend the grant- granted, the order * * * 50(b) action * * * under rules ing reargument did not terminate for a * * * 73(a) period second time the * * *, except to the extent and un- appeal. for the of an Inherent der the conditions stated in them.” is, course, concept in this view pro- also was amended and granting that the did not precise vides taking for the limitations of time destroy finality naming appeals, specific rules plaintiff-appellee, hand, The on the other under which motions made terminate petition insists that the for appeal. the 73(a) of time for Rule pleading (motion) was not the kind of a provides also when the that 6(b), light at which Rule read a denies motion under made one -59(b) 73(a), Rules and was aimed. designated, taking rules so the time for view, majority This latter which the ac- again. commences to run cept, is a controversion of those rules One of the rules named is Rule 59 and and, indeed, plan of the ordered created one of the motions which terminates speedy disposition for the of business of time for an is a mo- in United States district courts as re- 59(b) pro- tion for a new trial. Rule quired by Rule 1. vides that “[a] ruling majority of this court re- The days shall be served later not than 10 defendant-appellant’s concep- jects the judgment.” after the operation of the tion of the rules re- designed These amendments were totality. majority ferred to in The eliminate the then uncertainties attend have no doubt of the states: “[W]e taking ant on appeals times and court, power of a district to limit the of the trial court to dismissing trial, a motion for a new enlarge periods during ap reargu- to entertain an peals taken, having 6(c) could be Rule thereupon ment of the motion and to re- away done with the so-called “End-of- instate the motion and order it to be re- 1946 to ed. Committee Note of argued.” stopped the Term” rule. See 149, 150, Co., Cir., 1950, Everyone agrees Reading Co., Cir., 1950, 1948). of an motions on November Practice, Amended Rule and Cf. our decisions in Green appeal. Healy 181 F.2d Vol. that the of the time for the There Pennsylvania 6(b), filing ¶ 601 also seems 180 F.2d ^[6] Moore’s jority cites several of the adopted.1 1954 Cir., 1950, (2d R. amendments to the Rules but almost a as too in fact first of decade before the Rules decided not Power Co., Cir., 1928, dismissed, late. these, For this In Klein’s Outlet v. only Moreover, Dunagan not as before the proposition, authorities. themselves 29 F.2d 58 was v. premature, that case in- Appalachian pertinent Lipton, were ma- but an reargue to be accord the view bankruptcy that when a volved motion yet expired; 1. Professor Moore’s comment the case time had not nor in fact points up inaptness: appear any judgment further “It does that was en apparent should noted it is tered at all at that time.” Moore’s Fed opinion [3], the time in which to eral 59.13 ¶ n. 3 originally 1953) move for new trial at begs argument reconsideration,2 the- decision, I think that this first true, majority reargue question. It is as the a motion a motion to out, points 59(b) provides that- request recon that Rule for a second as we a motion for a new trial shall be served such sideration of Ameri not later than ten after the Arabian Nielsen v. have here.3 con and that the motion Co., F.2d 391 can days- here was served five of the denial cerned reconsideration peti dis after quash a summons a motion to interlocutory (motion) action, in literal an miss nonappealable Peters, certainly view motions not one of the Blaine v. order. referred to in 1952, U.S.App.D.C. 207, as a which not be the dis extended under held correctable say, de trict court. But inadvertent as does the ma mistake” the “clerical jority, reargument., petition that the n.o.v. nial of motions for “regarded” day is not to be the motions as a motion on the same new trial sup a new trial or the renewal of a mo cases cited do such were made. The port court, only majority’s major premise. request but as a that the prior reconsider its action unfavorable goes say, majority in sub on to seems an exercise in It can dialectics. granting stance, that the petition plea, not be denied that the is a ten /of the on a filed within reconsideration, of the mo the- order of denial or dismissal but it is also prohibition of practical equivalent does not the violate of a of the- renewal extending against 6(b) Rule the time practical! motion for a new trial and the serving 59(b) fixed a motion Rule equivalent of a motion for a new trial. majority, trial; for, say for a new the The fact that the is based on- reargument application pri- “an of a original papers the immaterial' seems or garded not to be re motion for a new trial is contemplates when which« one the result as itself a motion in the amendments to the rules were or of even as a renewal such a motion. effect, speedy disposition- * * * tended to the granted If is the Compare Farm National business. original upon motion heard the is anew Wood, Union Auto. & 10 original ers Cas. Co. v. papers just the if nev as it had Cir., 1953, previously er 207 F.2d 659. been heard or determined.” 2. The court period Note of is any is cited 7, the referee’s under running Klein’s Outlet v. quoted follows: sion 73(a). argued “in The different The relevance ¶ noteworthy. bankruptcy established decision. effect, 73.01 time therein. is has Rule in Moore’s Federal before unless 1946 to questionable. ^[5] “In .no for a characterized second at report terms it has the district good will bankruptcy proceedings effect A motion for the court entertains p. A Lipton, supra, and cases of a automatically stops Amended not extend motion for reargument” reason to revise its of the two as bankruptcy time under Rule See Committee argued court rendered bankruptcy new rehearing 1955) motions because and 73(a), deci re- it. as as thereby 1943, Norris when rules thereafter anew. cases]. diction to the do trial or for amend, cedure, on v. 771 expiration judgments erned appeal & F.2d 1.” plication Tio, Cir., 1944, faith of its action. [148 disposition of the expire, the time Hill, 9 [78 time as however, v. Safeway Stores, start and In the Federal Rules be entertained even A.L.R. 782]; entertain or orders the case entertain such a motion and' U.S.App.D.C. Camp, will start ordinary before time for the court rehearing limits the better view is that- rights may be, upon motion, civil prescribed Jusino appeal, Cir., 1944, 144 motion, F.2d or to vacate or A motion loses its 19] 149 F.2d have vested on seasonable Inc., time actions 946; as for new anew v. Morales Civil 136 F.2d and such v. running- cannot in the- [citing juris Neal so Pro Coe, gov ap rehearing of motion to set Court issue the respect this In and a mo Circuit, verdict and aside Chief Appeals for the Second rehearing Advisory motion for a Clark, Reporter of the Judge that extend the trial are not motions Civil Rules on the Committee Procedure, finality appealing time aifect recently Terrasi v. stated 73.” Cf. 1955, under Rule Lines, Inc., 226 F. Atlantic South Randolph Randolph, 91 U.S. also 824: “A motion 2d App.D.C. 170, Deena course trial is of motion for a aof Clay rehearing & Products United Brick Co. v. nothing but a motion America, Cir., 1952, Workers of but itself thereof, in essence is and thus denied 344 U.S. F.2d certiorari under F. new trial * * my Peyser, If inter 73 S.Ct. 97 L.Ed. 640. 59(a) *. Slater R. correct, pretation of these decisions U.S.App.D.C. * * majority’s very there no need to discuss the led reasons *. The that, Advisory conclusion if the district court to recommend Committee grants, reargu appeal period, within the in the interest the amended motion “the clarity as for a new avoid confusion and to pendency equally appeal apply revived operates proper again to terminate must motion. Of course it to this appeal.” of the time for [from made within specified judgment], in F.R. The theoretical conflict between the any de thus in event cannot just cases cited Terrasi v. South lay unduly.” proceedings Since Inc., Lines, supra, Atlantic is of no im- in Terrasi had portance presents here. Terrasi ten-day period, made within the been rare where the case motion to recon- the court held that sider is made ten itself stayed. period judgment.4 When the mo- to reconsider is not made within majority “if that The “concedes” ten-day period, grant reargument it would seem that not court does following both the Second Circuit Ter- new trial until after motion for a of the following rasi and the Sixth Circuit time allowed agree Marten v. Hess would (a) denial run has from the ap- motion would have no effect on the court action of the in the motion the subsequently period. peal doing will aifect so not orig finality appealable question presented The substantial filing inally For the mere entered. our determination is whether the court below, of a mo six some months after stop trial does not itself judgment, had the to reconsider appeal period.5” In its dismissal of the motion for a new tri- in the cited in footnote 5 lay herent cases al. That such a course within the majority opinion principle power prior is the of the district court to the ju not have that the district does amendments to the Rules is indubitable. Reading to entertain a motion to recon risdiction our See decisions in v. Green Healy Pennsylvania Co., denial the motion for a sider Co. supra. v. R. to recon thing, at least when It was a reasonable I days give think, oppor- more than ten after to a sider is made entry trial court an example, tunity to if Cf. for correct decision it was of Hess, it had Marten v. 176 F.2d the view that committed error. Supreme in it “A the Rules are which is stated: mo- made But suggested in limits Rule 59 4. Professor behind the time “[i]f Moore preclude motion to can not consideration.” Moore’s a rare case a reconsider days Practice, 59.1311], (2d Vol. ¶ be and served not later than 10 Federal policy 1953). after judge trial in- flexible rule. There the revise them here. Court, and we advertently denied motions for a reconsideration court’s trial Because motions, and for a new trial on consider- n.o.v. of such their denials they day appeals same were made. The delay been encoun- Court had able -Appeals held that this error could tered, particularly field of bank- days plain in corrected later than ten his ruptcy makes Moore law. original judgment “clerical what Revised on comment Advisory However, thought 60(a). mistake” Committee was under Rule he judge’s “dis- getting away I was uncertain- do not see how the trial That from. finality respect ty missal” of the motion for a new trial in as to establishing categorized this “In the instant case can be period. said, as ei- He Advisory principle, the Commit- ther a “clerical mistake” under Rule 60 [new] (a) party legal consciously rule estab- or a mistake “a avoided his tee ” ** 5 representative” bankruptcy 60(b). proceedings. under Rule Cf. lished support solidly Safeway Coe, supra; Gray the view Stores The cases v. v. Bank, Cir., 1954, that, court “dis the time the district Dukedom trial in the for a new missed” jurisdic bar, lost court had case judgment appealed from was final further. The defendant-ap the matter consider on June should ten pellant dismissed. for a new were could move following immediately “the the ten entry judgment” provision in the Rules is no 1954. There following ten-day period for another for a new trial. of the motion denial that under Rule is unlike

situation begins (a) time to run where denial of such a a second Loyola Rose WOODS and Charles H. Lines, Atlantic Terrasi v. South motion. Woods, Appellants, Hess, supra; Inc., supra; v. Marten 59. ¶¶ Moore’s America, UNITED STATES of 1953). 59.13[1], ed. supra, 09[1], 59.13[3] Appellee. Randolph Randolph, so Cf. No. 5163. regard 59(e). holding See with Union Auto. & National Farmers also Appeals States Court of United Bergeron Wood, supra; Co. v. Cas. Tenth Circuit. 27; Mansour, 1 Dec. 1943, U.S.App. Safeway Coe, Stores v. Goldman William D.C. Loew’s, D.C.E.D.Pa.1949, 83 Theatres v. majority position F.Supp. judge, by permit “enter taining” to reconsider numerous motions motions, previous to extend denials almost in the time definitely. Such result flies language and clear intent of face 73(a). Rules supra, presents Peters,

Blaine exception

only I found in- have to this 1955). p. See also note ¶73.09[4] Moore’s supra.

Case Details

Case Name: William Kelly v. Pennsylvania Railroad Company

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 29, 1955

Citation: 228 F.2d 727

Docket Number: 11689

Court Abbreviation: 3rd Cir.