Lyford v. Carter, 274 F.2d 815 (2d Cir. 1960). · Go Syfert
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Lyford v. Carter, 274 F.2d 815 (2d Cir. 1960). Cases Citing This Book View Copy Cite
14 citation events across 5 distinct courts.
Strongest positive: Christian v. Bruno (dc, 1968-10-24) · Strongest negative: Leonhard v. United States (ca2, 1980-08-28)
Top citers, strongest first. 8 distinct citers. How cited ↗
discussed Cited "but see" Leonhard v. United States
2d Cir. · 1980 · signal: but see · confidence high
But see dictum in Lyford v. Carter, 274 F.2d 815 , 815 n. 1 (2d Cir. 1960), suggesting that a dismissal even as to unserved defendants is a prerequisite to appeal, but construing the dismissal to have applied to all named defendants.
discussed Cited as authority (rule) Christian v. Bruno
D.C. · 1968 · confidence medium
We do not in this decision lightly invade the discretion of the trial court, but merely believe, as did the court in Lyford v. Carter, 274 F.2d 815, 816 (2d Cir. 1960), that “[u]nder the circumstances the doom entered below seems altogether too final and definitive.
discussed Cited as authority (rule) Mely v. Morris
Alaska · 1966 · confidence medium
Typical of the federal authorities which have modified dismissals with prejudice are: Lyford v. Carter, 274 F.2d 815, 816 (2d Cir. 1960) ; Peterson v. Moore, 267 F.2d 496 (3d Cir. 1959) ; Kuzma v. Bessemer & L.
discussed Cited "see" Battle v. Jackson
D.C. · 1984 · signal: see · confidence high
See Christian v. Bruno, supra, 247 A.2d *1147 at 58 (“ ‘[ujnder the circumstances the doom entered below seems altogether too final and definitive’ ” to warrant holding client to suffer his attorney’s neglect) (quoting Lyford v. Carter, 274 F.2d 815, 816 (2d Cir.1960)); Morgan v. Leitner, supra, 444 A.2d at 934 (Kern, J. dissenting) (attorney’s neglect should not be imputed to his client, but would remand to determine if client aware of trial date or only attorney).
discussed Cited "see" Leonhard v. United States
2d Cir. · 1980 · signal: see · confidence high
See Fed.R.Civ.P. 58, quoted in note 16 infra 10 But see dictum in Lyford v. Carter, 274 F.2d 815 , 815 n. 1 (2d Cir. 1960), suggesting that a dismissal even as to unserved defendants is a prerequisite to appeal, but construing the dismissal to have applied to all named defendants.
cited Cited "see" Preston v. Mendlinger
S.D.N.Y. · 1979 · signal: see · confidence high
See Lyford v. Carter, 274 F.2d 815 (2d Cir. 1960) (two years); contra Charles Labs, Inc. v. Banner, 79 F.R.D. 55 (S.D.N.Y.1978) (eighteen months).
cited Cited "see" Levin v. Ruby Trading Corporation
S.D.N.Y. · 1965 · signal: accord · confidence high
Accord, Lyford v. Carter, 274 F.2d 815 (2d Cir. 1960).
discussed Cited "see, e.g." Murray Ferguson, as Trustee in Reorganization of Equitable Plan Company v. Bartels Brewing Company (Pa.) (2×)
2d Cir. · 1961 · signal: compare · confidence low
Compare Lyford v. Carter, 2 Cir., 274 F. 2d 815 , where the point was adverted to, but was not necessary to decision. 1 But the other named codefendant, H.
Retrieving the full opinion text from the archive…
Frederic E. Lyford and William C. Eberle, Doing Business Under the Firm Name and Style of Lyford & Eberle
v.
A. F. Carter, Commonwealth Oil Refining Company, Inc., Jose Guillermo Vivas and Lucas P. Valdivieso
25860_1.
Court of Appeals for the Second Circuit.
Jan 27, 1960.
274 F.2d 815
1960 U.S. App. LEXIS 5504
Cited by 4 opinions  |  Published

274 F.2d 815

Frederic E. LYFORD and William C. Eberle, doing business under the firm name and style of Lyford & Eberle, Plaintiffs-Appellants,
v.
A. F. CARTER, Commonwealth Oil Refining Company, Inc., Jose Guillermo Vivas and Lucas P. Valdivieso, Defendants-Appellees.

No. 156.

Docket 25860.

United States Court of Appeals Second Circuit.

Argued January 14, 1960.

Decided January 27, 1960.

Enrico S. Sanfilippo, New York City, for plaintiffs-appellants.

Stephen Rackow Kaye, of Sullivan & Cromwell, New York City, for defendant-appellee Commonwealth Oil Refining Co., Inc.

Before CLARK, HINCKS, and WATERMAN, Circuit Judges.

PER CURIAM.

1

In this case plaintiffs filed a complaint and took out a summons on April 5, 1957, in an action claiming damages for misappropriation of property and loss of profits in connection with an oil refining venture in Puerto Rico. The summons and complaint were not served on defendant Commonwealth Oil Refining Company, Inc., until May 8, 1959, and have not yet been served on the other defendants, who are nonresidents of the District. Commonwealth has been amenable to service throughout and, on motion promptly made on May 28, 1959, secured a dismissal of the action[1] for failure to prosecute, which the court refused to reopen on motion for reargument. Since no limitation is stated in the order, the dismissal is one with prejudice which "operates as an adjudication upon the merits." F.R.Civ.P. 41(b). Plaintiffs say they delayed the service upon Commonwealth because of continued attempts to effect personal service upon defendant Carter, whom they term the "prime conspirator"; but having recently effected service on Carter in a new action brought in the federal court in South Carolina, they are now prepared to proceed against Commonwealth.

2

The court has, and should have, a wide discretion as to penalties for failure of diligent prosecution of litigation. Had the court contented itself with merely dismissing the present action without prejudice, we should not have thought it necessary to interfere. But as it stands, the plaintiffs face a permanent bar for a delay which in our congested trial courts is hardly unusual. Had the plaintiffs been sophisticated procedurewise, they could have withdrawn their action at this stage without leave, F.R.Civ.P. 41(a) (1), and could have begun again at any time permitted them under applicable statutes of limitations. As it is, they are much worse off than had they delayed suit altogether. We note further that our court has held erroneous a dismissal in favor of unserved defendants who have not sought such relief. Waterman v. Nelson, 2 Cir., 177 F.2d 965. Under the circumstances the doom entered below seems altogether too final and definitive. We think the action should take the more normal course of ordinary pleading and disposition in ways less abrupt.

3

Reversed and remanded.

Notes:

1

The order is somewhat ambiguous as to whether the dismissal is just as to Commonwealth or is as to all defendants. We think the latter was intended, as the court clerk apparently assumed; hence the order is presently appealable