Opinion · Court of Appeals for the Second Circuit

Dixon v. American Telephone & Telegraph Co.

Dixon v. Am. Tel. & Tel. Co., 159 F.2d 863 (2d Cir. 1947)

Type
Opinion
Court
Court of Appeals for the Second Circuit
Jurisdiction
Federal
Date
1947-02-03
Topic
general

FRANK, Circuit Judge. We think plaintiff failed to show adequate ground for delay in bringing his suit. His affidavits show that in 1937 he knew all the facts which he knew when he instituted his suit in 1943. The only excuse he gives is that in August 1940 he suffered a serious accident. We assume (although, in his affidavits, he does not so state) that the result of this accident wholly incapacitated him from August 1940 to the date when he brought this suit.

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DIXON v. AMERICAN TELEPHONE TELEGRAPH CO.,159 F.2d 863(2nd Cir. 1947)
DIXON v. AMERICAN TELEPHONE TELEGRAPH CO. et al.
No. 91, Docket 20364.
Circuit Court of Appeals, Second Circuit.
February 3, 1947.
Appeal from the District Court of the United States for the Southern District of New York.

Action by Thomas Bullitt Dixon against American Telephone and Telegraph Company and others in the nature of a bill of review to set aside a judgment in a prior action for infringement of a patent. From a judgment granting motion for summary judgment and dismissing complaint on the merits, plaintiff appeals.

Affirmed.

In 1932, plaintiff brought suit against the corporate defendants for damages for infringement of a patent. In December 1935, the district court entered a judgment dismissing that suit on the merits, D.C.,12 F. Supp. 996. In January 1937, this court affirmed that judgment; 2 cir., 87 F.2d 1002. On January 20, 1943, plaintiff began the instant suit, in the nature of a "bill of review," to set aside that judgment. In his amended complaint herein he alleged that he had lost the patent action because his own attorneys had entered into a corrupt bargain with the defendants and their attorneys to suppress evidence favorable to him, the precise terms of that bargain being unknown to plaintiff. He also alleged that he had been delayed in bringing the suit because of a serious injury due to an accident from the effects of which he had not yet fully recovered. The defendants answered; they included in their answers the defense of laches. The trial judge denied defendants' motions to dismiss plaintiff's amended complaint. The defendants then moved for summary judgment; they filed affidavits and plaintiff filed opposing affidavits. In one of his affidavits plaintiff stated: "Respecting the allegations of defendants that plaintiff has been guilty of laches I deny this and aver that since the discovery of the fraud alleged I have done everything in my power to get an action under way to the end of the action now pending. While never totally disabled as a result of the injury received in the accident referred to in paragraph 28 of the re-amended complaint, I here state that this accident occurred on the 7th day of August 1940 and prior to that time I had not been able, on account of lack of sufficient personal legal knowledge and training to institute a proper suit, acting as my own attorney and was not financially in a position to employ an attorney qualified to properly handle such a case. The said accident, due to a fall, caused a serious and painful injury to my left shoulder which also affected seriously my left arm and hand and proved very obstinate and from the effects of which I still suffer considerably at times both with respect to pain and as affecting more or less my general state of health, notwithstanding that I have steadily followed treatment ordered by my physician. This injury has been especiallyPage 864difficult for me to cope with owing to the fact that when a child I lost my right hand as a result of an accident." The defendants' affidavits stated that they had no knowledge or information relating to diligence in bringing the suit beyond that given in the complaint. It appears from the complaint that James J. Kennedy, Sr., who allegedly supervised the activities of James J. Kennedy, Jr., plaintiff's attorney of record in the patent suit, died in 1942, before the present action was commenced. Charles Neave and Merrell E. Clark, who were associated with two of the named defendants as attorneys for the American Telephone and Telegraph Company in the patent suit, also died in the interval between the two actions. The district judge entered a summary judgment for defendants on the ground that, although plaintiff's amended complaint set forth a sufficient claim, all the defendants had categorically denied that there was any corrupt bargain or suppression of evidence, and plaintiff, in his affidavits, did not disclose any proof of the corrupt bargain or conspiracy.
Thomas Bullitt Dixon, pro se.

James J. Kennedy of New York City, for Philipp, Sawyer, Rice Kennedy and James J. Kennedy, Jr.

Cravath, Swaine Moore, of New York City (Bruce Bromley and Benjamin R. Shute, both of New York City, of counsel), for Fish, Richardson Neave and Henry R. Ashton.

Homer H. Breland, of New York City, for American Telephone and Telegraph Company, Western Electric Company and John McGlone.
Before SWAN, CHASE, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
We think plaintiff failed to show adequate ground for delay in bringing his suit. His affidavits show that in 1937 he knew all the facts which he knew when he instituted his suit in 1943. The only excuse he gives is that in August 1940 he suffered a serious accident. We assume (although, in his affidavits, he does not so state) that the result of this accident wholly incapacitated him from August 1940 to the date when he brought this suit. But he states no sufficient reason for the delay from 1937 to 1940. Since 1937, three of the lawyers connected with the patent action, who might well have been important witnesses for the defendants, have died.

The facts bearing on the issue of laches are wholly within plaintiff's knowledge; nothing that could be learned at a trial could add to the data bearing on that issue; with respect thereto, he is in nowise dependent "on what he can draw out of" the defendants.1Had there been a trial, none of the defendants, by their testimony, would have contributed anything concerning the reasons for the delay; if, at a trial, his testimony had been in accord with his affidavits and had been believed, nevertheless dismissal for laches would have been necessary. As a trial would have involved no question of credibility, our precedents are not in point.2Since, as to laches, there was no issue of fact but only one of "law," the vice of "trial by affidavits"3is here absent, and the summary judgment must be affirmed.

Affirmed.Page 865
  1. Bozant v. Bank of New York, 2 Cir.,156 F.2d 787, 790. ↩
  2. Arnstein v. Porter, 2 Cir.,154 F.2d 464, 473, 474; Bozant v. Bank of New York, supra; Doehler Metal Furniture Co. v. United States, 2 Cir.,149 F.2d 130, 135; Bushwick-Decatur Motors v. Ford Motor Co., 2 Cir.,116 F.2d 675, see also Avrick v. Rockmont Envelope Co., 10 Cir.,155 F.2d 568, 571, 573; Krug v. Santa Fe Pac. R. Co., App.D.C.,158 F.2d 317, 320. ↩
  3. See Arnstein v. Porter, supra, at 471. ↩