C. J. Oliver v. Home Indem. Co., Intervenor, Monsanto Co., Defendant-Third-Party v. A. A. Pruitt, Third-Party v. Hydrocarbon Constr. Co., Third-Party, 470 F.2d 329 (3rd Cir. 1972). · Go Syfert
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C. J. Oliver v. Home Indem. Co., Intervenor, Monsanto Co., Defendant-Third-Party v. A. A. Pruitt, Third-Party v. Hydrocarbon Constr. Co., Third-Party, 470 F.2d 329 (3rd Cir. 1972). Cases Citing This Book View Copy Cite
53 citation events (19 in the last 25 years) across 22 distinct courts.
Strongest positive: Alin Pop v. LuliFama.com LLC (ca11, 2024-01-02)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Top citers, strongest first. 17 distinct citers. How cited ↗
cited Cited as authority (rule) Alin Pop v. LuliFama.com LLC
11th Cir. · 2024 · confidence medium
Co., 470 F.2d 329, 329-30 (5th Cir. 1972).
discussed Cited as authority (rule) Villegas v. Sanofi US Services Inc.
E.D. La. · 2022 · confidence medium
Co., 470 F.2d 329, 330 (5th Cir. 1972)). 7 As discussed above, Plaintiff uploaded the subpoena at issue to MDL Centrality, curing her CMO 12A deficiency, prior to this Court dismissing her case with prejudice.
cited Cited as authority (rule) Baker v. Wal-Mart Stores East, LP
S.D. Ga. · 2022 · confidence medium
Co., 470 F.2d 329, 331 (5th Cir. 1972); Meadows v. Cohen, 409 F.2d 750 , 752 n.4 (5th Cir. 1969)).
cited Cited as authority (rule) Travis Horne v. United States
11th Cir. · 2022 · confidence medium
Co., 470 F.2d 329, 330-31 (5th Cir. 1972). 5 A district court may initiate reconsideration of such a judgment or order sua sponte, at least before any party takes appeal.
cited Cited as authority (rule) Alford v. Chevron U.S.A. Inc.
E.D. La. · 2014 · confidence medium
Such an approach is justified because it “prevents] the unnecessary wasting of energies by ... courts and litigants.” Oliver, 470 F.2d at 330-31.
discussed Cited as authority (rule) PG 1044 Madison Associates, L.L.C. v. Sirene One, L.L.C.
S.D.N.Y. · 2005 · confidence medium
“Although 60(b)(1) does not serve as a substitute for appeal, it nevertheless ‘encompass[es] judicial mistake in applying the appropriate law.’ ” Badian, 2005 WL 1083807 , *2 (piloting Oliver v. Home Indemnity Co., 470 F.2d 329, 330 (5th Cir.1972)).
discussed Cited as authority (rule) Shepherd v. International Paper Co.
5th Cir. · 2004 · confidence medium
Plaintiffs also make a brief attempt at arguing that we have allowed a district court to grant a motion for reconsideration after the filing of a notice of appeal and without the filing of a motion for leave, citing Oliver v. Home Indemnity Co., 470 F.2d 329, 331 (5th Cir.1972), as evidence of this.
discussed Cited as authority (rule) Brickwood Contractors, Inc. v. United States
Fed. Cl. · 2001 · confidence medium
Co., 470 F.2d at 330 (finding that “the district court properly entertained Pruitt’s motion which was filed within the period allowed for giving notice of appeal and in fact after notice of appeal had been filed”); Schildhaus v. Moe, 335 F.2d at 531 (confirming a prior holding that a Rule 60(b) motion may be considered when “[ejleven days after the entry of a defendant’s judgment in that case, correct under the law laid down by this Court, the Supreme Court rendered a decision which showed the judgment to be erroneous” and “the plaintiff moved under Rule 60(b) ten days thereafter…
cited Cited as authority (rule) Thompson v. County of Franklin
N.D.N.Y. · 2000 · confidence medium
April 1, 1998) (quoting Oliver v. Home Indemnity Co., 470 F.2d 329, 330 (5th Cir.1972)) (other citation omitted)), thus promoting judicial efficiency.
cited Cited as authority (rule) Max Nisson, Plaintiff-Counter-Defendant-Appellant-Cross-Appellee v. Nell W. Lundy, Defendant-Counter-Claimant, Appellee-Cross-Appellant
11th Cir. · 1992 · confidence medium
Oliver v. Home Indemnity Co., 470 F.2d 329, 330 (5th Cir.1972); Glass v. Seaboard Coast Line Railroad Co., 714 F.2d 1107, 1109 (11th Cir.1983).
cited Cited as authority (rule) Ellie Marie Parks and Willis Eugene Parks v. U. S. Life and Credit Corporation
11th Cir. · 1982 · confidence medium
In such circumstances, it is difficult to see how this reconsideration by the district court could have worked an injustice to any party. 470 F.2d at 331 (footnote omitted).
discussed Cited as authority (rule) Knox v. Lichtenstein
8th Cir. · 1981 · confidence medium
Oliver v. Home Indemnity Co., 470 F.2d 329, 330 (5th Cir. 1972); Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir. 1964). 17 Courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake.
cited Cited as authority (rule) Knox v. Lichtenstein
8th Cir. · 1981 · confidence medium
Oliver v. Home Indemnity Co., 470 F.2d 329, 330 (5th Cir. 1972); Schildhaus v. Moe, 335 F.2d 529, 531 (2d Cir. 1964).
discussed Cited as authority (rule) Quincy Lairsey and Frances Lairsey v. The Advance Abrasives Company
5th Cir. · 1976 · confidence medium
See Sommer Corp. v. Panama Canal Co., 475 F.2d 292, 299 (C.A.5, 1973); Oliver v. Monsanto Company, supra; Oliver v. Home Indemnity Co., 470 F.2d 329, 331 (C.A.5,1972); Meadows v. Cohen, supra, at 752 n. 4.
discussed Cited "see" Henry v. Independent American Savings Ass'n (2×)
5th Cir. · 1988 · signal: see · confidence high
See id. at 742. . 470 F.2d 329 (5th Cir.1972). .
discussed Cited "see" Gabriel Barrier v. C.W. Beaver, Warden
6th Cir. · 1983 · signal: see · confidence high
See Stewart, supra, and Oliver, supra. This Court is persuaded that the better view is to allow reconsideration of a point of law under Rule 60(b)(1) when relief from judgment is sought within the normal time for taking an appeal.
cited Cited "see, e.g." Thomas A. McCrary v. David B. Poythress, Secretary of the State of Georgia and Chairman State Election Board
5th Cir. · 1981 · signal: see, e.g. · confidence low
See e. g., Oliver v. Home Indemnity Co., 470 F.2d 329 (5th Cir. 1972), *1315 and Meadows v. Cohen, 409 F.2d 750 (5th Cir. 1969).
Retrieving the full opinion text from the archive…
C. J. Oliver
v.
Home Indemnity Company, Intervenor, Monsanto Company, Defendant-Third-Party v. A. A. Pruitt, Third-Party v. Hydrocarbon Construction Company, Third-Party
72-2781.
Court of Appeals for the Third Circuit.
Dec 7, 1972.
470 F.2d 329
Published

470 F.2d 329

C. J. OLIVER et al., Plaintiffs-Appellees,
v.
HOME INDEMNITY COMPANY, Intervenor,
MONSANTO COMPANY, Defendant-Third-Party Plaintiff-Appellant,
v.
A. A. PRUITT, Third-Party Defendant-Appellee,
v.
HYDROCARBON CONSTRUCTION COMPANY et al., Third-Party Defendants.

No. 72-2781.

United States Court of Appeals,
Fifth Circuit.

Dec. 7, 1972.

Robert C. Floyd, Tom Alexander, Houston, Tex., for Monsanto Co. and Home Indemnity Co.

Walter E. Workman, Houston, Tex., for Monsanto Co.

David H. Burrow, Houston, Tex., for Oliver and Evans.

John T. Golden, W. Bryant Russell, Houston, Tex., Henry G. Dalehite, Jr., Galveston, Tex., Don Hallmark, Houston, Tex., for other interested parties.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

LEWIS R. MORGAN, Circuit Judge:

[*~329]1

Appellant Monsanto Company has filed a motion requesting this court to determine whether any final appealable judgment has been entered in this cause. After due consideration, we find that no final order has yet been entered.

2

The original action in this case has grown into a complex, multiparty affair and has been dragging through the district court since 1966. Basically it involves personal injury actions by several construction workmen injured in a fire at a Monsanto chemical plant. The suit has involved the application of the somewhat complex Texas law on indemnity clauses in construction contracts. During an early phase of this litigation, on January 31, 1969, the district court entered an order holding that Pruitt was obligated under its contract with Monsanto to assume Monsanto's defense and to indemnify any loss by Monsanto to the injured employees who were employees of Pruitt. On April 20, 1972, the district court entered an order denominated "Final Judgement", which, of course, presumably made all earlier rulings, such as the indemnity holding, final and appealable.

3

After the normal ten-day period for amending final judgments had elapsed, but before the expiration of the thirtyday period for filing notice of appeal, Pruitt filed with the district court a motion for reconsideration of the January 1969 ruling which had held that Pruitt was obligated to indemnify Monsanto, alleging that relatively recent Texas decisions had changed the law applicable to this determination and that the 1969 ruling was now incorrect. The district court held that it could entertain this motion for reconsideration and amend the "final judgment" under the provisions of Rule 60(b) of the Federal Rules of Civil Procedure. Having made this determination, the district court entered a "Memorandum and Order" on August 15, 1972, which reversed the indemnity ruling of January 1969, and held Monsanto not entitled to indemnity from Pruitt. Monsanto then filed a motion for a new trial which was denied in an "Amended Memorandum and Order", basically restating the order of August 15th with the addition of the reasons for denial of Monsanto's motion, on September 19, 1972, D.C., 56 F.R.D. 370. In both of these last orders, the court indicated that an "Amended Final Judgement" in line with those orders should be prepared for entry. As of the time this matter was presented to this court, no such "Amended Final Judgment" had been entered.

4

During the period after this "Final Judgment" of April 20, 1972, appeal proceedings were initiated in at least two instances. The first was a notice of appeal filed by Pruitt in Monsanto's name prior to the reconsideration of the indemnity issue by the district court. The second was an appeal filed by Monsanto after the orders of August 15th and September 19th which changed the indemnity result. Monsanto is at a loss to know which appeal, if either, should be pursued. This motion was filed to obtain an answer and avoid the costly waste of briefing and printing an appeal which may be premature.

5

At the outset it seems incumbent on this court to determine if the district court was correct in entertaining Pruitt's motion for reconsideration made after the normal period for amending final judgments but prior to the expiration of the period for filing notice of appeal. If it was improper for the district court to entertain that motion, then presumably the orders of August 15th and September 19th were improper and the April 20, 1972, judgment is the only one subject to appeal. If the reconsideration was permissible, then any appeal of the April judgment is now moot but there still would remain the question of whether either or both of the orders entered on August 15th or September 15, 1972, were intended to be the "final act" of the district court and are therefore appealable.

6

The district court found that it could entertain Pruitt's motion for reconsideration under the provisions of Rule 60(b) of the Federal Rules of Civil Procedure[1] The district court adopted a construction of that rule which read the term "mistake" to encompass judicial mistake in applying the appropriate law. This view of the rule is that urged by the most noted commentators, 3 Barron & Holtzoff, Federal Practice & Procedure, p 1325 at 407 (Wright ed. 1958); 7 Moore's Federal Practice, p 60.22(3) (1971), and has, apparently, been accepted by this court. Meadows v. Cohen, 5 Cir. 1969, 409 F.2d 750; McDowell v. Celebrezze, 5 Cir. 1962, 310 F.2d 43.

7

The policy favoring such a construction is, of course, one aimed at preventing the unnecessary wasting of energies by both appellate courts and litigants. It seems that absent the chance of serious injury to the rights of any party, the possible saving of judicial energies warrants the use of such a discretionary reconsideration by the district court.[2] Here the district court properly entertained Pruitt's motion which was filed within the period allowed for giving notice of appeal and in fact after notice of appeal had been filed. In such circumstances, it is difficult to see how this reconsideration by the district court could have worked an injustice to any party. See Meadows v. Cohen, supra; McDowell v. Celebrezze, supra.

8

Having thus found that the district court here properly reconsidered its ruling on the indemnity issue, we must reach the question of whether or not the orders of August 15th and/or September 19, 1972, are sufficienty "final" to be proper for review. We find that by their very terms neither may be considered final. Both orders refer to the entry of an "Amended Final Judgment" at some unstated point in the future. Until this step has been taken, this case has not reached its final stage in the district court and any appeal is premature.[3]

[*~330]9

Appeal dismissed.

1

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect

2

This case illustrates the time saving which may be possible by the use of Rule 60(b) under these circumstances. Had the April final judgment been undisturbed and Pruitt, on appeal, been able to convince this court that the district court had not properly applied Texas law on the indemnity question, remand would have been necessary because application of the test that Pruitt urges would make it necessary to determine if Monsanto was negligent in this case. In its reconsideration, the district court made a finding that Monsanto was negligent. Thus if in a proper appeal this court is convinced that the Pruitt position on Texas law is correct and that it was within the power of the trial court itself to determine negligence on the part of Monsanto, that finding has already been made by the trial court and can be reviewed without the necessity for remand to determine the possible negligence of Monsanto

This court does not mean to indicate in any way how the ultimate resolution of these complex issues will be decided. Nor do we feel that by allowing this reconsideration the possibility of remand will be obviated. Rather it is simply presented as an example of how much reconsideration could save judicial energies, time, and possibly expense.

3

It may be that such an "Amended Final Judgment" has been filed in this case since this motion was presented to this court. If so, the parties are granted an additional thirty-day period from the date of this opinion to file notices of appeal of that judgment