The opinion of the court was delivered by: FAKE
The issues now before the Court arise on a motion to reconsider the opinion of the Court, filed in these cases on the 10th day of December 1947, D.C., 74 F.Supp. 791, and to strike the same. Counsel have been heard on oral argument; briefs have been filed in aid of the Court, and I have reconsidered all the problems involved.
Questions bearing upon statutes of limitations have been drawn into the arguments, either by me or by counsel. The law of Hawaii, and the law of New Jersey, on the subject, have been exhaustively studied. I am now of the opinion that such statutes have no direct bearing on the issues to be reconsidered. Therefore these studies will not be enlarged upon in this opinion.
The accident upon which these suits are based occurred in Hawaii on April 8th, 1942. It is conceded that they would be outlawed, on April 8, 1944, in either of the jurisdictions involved. The first complaint was filed on March 12, 1943, in suit #2788 above, for the death of one Henry Silva. A demand for a bill of particulars was made on April 2d, 1943. A further demand was made on June 28th, 1943. These demands were met on April 12, 1943 and June 29, 1943, respectively, and were filed in the Court on July 7, 1943. An answer was filed, in this particular suit, on September 28, 1943 and acknowledged as within time. Thus it appears that the answer was filed within the period of limitations, and it was with this answer in mind that I referred in my earlier opinion to the 'fast running' Statute of Limitations. The complaints in the three remaining personal injury suits were filed on March 30, 1944, and service was made on March 31, 1944, all within the period of limitations. The answers to these three suits, however, were filed on October 3, 1944 after the Statute had run; each acknowledged as filed within the time allowed for pleading. On October 30, 1944, an order of consolidation, duly consented to, was filed under which these cases were to be tried together.
Thus it is seen that by the consent of the parties the issues involved were being considered as involving but one case insofar as the facts relating to the accident are concerned.
In this posture the case remained, by inaction or consent, until some 17 months after the Statute of Limitations had run, and two years, lacking four days, from the date when defendant's counsel knew there was an error in the name of the defendant, when counsel for the defendant addressed the following letter to counsel for plaintiff, dated September 24, 1945.
'In connection with notice of taking depositions at Honolulu in the above entitled matters, please be assured that it is my desire to cooperate in any way possible on any preliminary matters. I presume that the testimony you seek to elicit from the witnesses listed in the notice is with reference to the happening of the accident and the earning capacity and dependency of the deceased Silva, and other persons injured.
'Do you think that we could obviate the necessity of taking a formal deposition by your furnishing to me some data by which I would be in a position to advise my client to stipulate with regard to certain facts? My thought is that the expense and effort involved in the taking of these depositions might be obviated particularly in view of the fact that we have indicated by our answers and by our answers to request for admissions that the defendant that you have sued is not the proper party in connection with the work done at Schofield Barracks.
'I would appreciate your early advices.
'With kind personal regards,
'Sincerely yours, 'Emanuel Wagner'
I find from the record before me that this was the first time counsel for plaintiff was specifically advised that he had made an error in naming the New Jersey Interstate Equipment Corporation. True, defendant had entered general denials in the answers filed, but such general denials, under the circumstances now disclosed, were in no way sufficient to advise plaintiff that there were two corporations bearing the same name with different state paternities.
Rule 9(c) of the Federal Rules of Civil Procedure, 28 U.S.C.A., expressly provides that 'a denial of performance or occurrence shall be made specifically and with particularity,'(Emphasis added). I fail to find particularity in the answers now before me, hence plaintiff's attorney cannot be charged with ...