I received an email this morning from a friend observing that “it’s like the D.C. Circuit is actively trying to undermine your column by never issuing any opinions!” Perhaps. We are two weeks into 2017 and the D.C. Circuit has said nothing.*

What should I do? Take the week off I suppose.

That said, here is an interesting decision about Friday the 13th issued by the Supreme Court in 1952. If the D.C. Circuit isn’t going to give me anything to write about, why not think about an obscure civil procedure case?

In Johnson v. New York, N.H. & H.R. Co., the Court — per Justice Black — read Federal Rule of Civil Procedure Rule 50 to mean exactly what it says:

Although this respondent made several motions it did not as the rule requires move within ten days after verdict ‘to have judgment entered in accordance with his (its) motion for a directed verdict’. We are told, however, in respondent’s brief that its motion to set aside the verdict ‘was intended to be a motion for judgment in its favor or for a new trial’ and that ‘(o)bviously respondent did not merely want the verdict to be set aside but wanted the relief that invariably follows such a setting aside on the grounds urged: a judgment in its favor or a new trial.’ The defect in this argument is that respondent’s motions cannot be measured by its unexpressed intention or wants. Neither the trial judge nor the Court of Appeals appears to have treated the motion to set aside the verdict as asking for anything but that. And surely petitioner is not to have her opportunity to remedy any shortcomings in her case jeopardized by a failure to fathom the unspoken hopes of respondent’s counsel. Respondent’s motion should be treated as nothing but what it actually was, one to set aside the verdict—not one to enter judgment notwithstanding the verdict.

Respondent separately argues that a trial judge’s express reservation of decision on motion for a directed verdict relieves a party from any duty whatever under 50(b) to make a motion for judgment after verdict. This contention not only flies in the teeth of the rule’s unambiguous language but if sustained would undermine safeguards for litigants some of which have been pointed out in prior cases.

…

Rule 50(b) as written and as construed by us is not difficult to understand or to observe. Rewriting the rule to fit counsel’s unexpressed wants and intentions would make it easy to reintroduce the same type of confusion and uncertainty the rule was adopted to end. In 1946 this Court was asked to adopt an amendment to the rule which would have given appellate courts power to enter judgments for parties who, like this respondent, had made no timely motion for judgment notwithstanding the verdict. We did not adopt the amendment then. No sufficiently persuasive reasons are presented why we should do so now under the guise of interpretation.

Respondent made a motion to set aside the verdict and for new trial within the time required by Rule 50(b). It failed to comply with permission given by 50(b) to move for judgment n.o.v. after the verdict. In this situation respondent is entitled only to a new trial, not to a judgment in its favor.

That decision prompted a fierce dissent from Justice Frankfurter (joined by three others):

The immediate issue is the construction of one of the important Rules of Civil Procedure. That construction in turn depends upon our basic attitude toward those Rules—whether we take their force to lie in their very words, treating them as talismanic formulas, or whether we believe they are to be applied as rational instruments for doing justice between man and man in cases coming before the federal courts.

…

If on that fateful Friday the 13th, in April, 1951, sometime shortly after 10:30 in the morning when the jury’s verdict was opened, the defendant had prefaced his argument by saying, ‘Your Honor, before addressing myself to my pending motion for directed verdict, on which your Honor reserved decision, and which of course now necessarily is a motion for judgment n.o.v., I first want to renew that motion.’ he would have avoided today’s decision against him, although he would not have added one jot of information to that of counsel for the plaintiff or of the judge regarding the issues before the court for decision.

…

The Federal Rules of Civil Procedure are the product of the progress of centuries from the medieval court-room contest—a thinly disguised version of trial by combat—to modern litigation. ‘Procedure is the means; full, equal and exact enforcement of substantive law is the end.’ Pound, The Etiquette of Justice, 3 Proceedings Neb. St. Bar Assn. 231 (1909). This basic consideration underlies the Rules ….

It has been said of the great Baron Parke: ‘His fault was an almost superstitious reverence for the dark technicalities of special pleading, and the reforms introduced by the Common Law Procedure Acts of 1854 and 1855 occasioned his resignation.’ Sir James Parke, 15 D.N.B. 226.

Baron Parke despaired prematurely. If he had waited another hundred years this Court today would have vindicated his belief that judges must be imprisoned in technicalities of their own devising, that obedience to lifeless formality is the way to justice.

On reflection, I suppose this opinion isn’t really about Friday the 13th. But it is a nice reminder that judges have been disagreeing with each other for a very long time. (For what it is worth, I don’t think Justice Frankfurter was fair to Justice Black.) You know, maybe that is why the D.C. Circuit hasn’t issued any opinions for a while — perhaps we are in for some dissents.

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* This is not entirely true. The Court did issue a very interesting judgment this week. In United States v. Holman, decided per curiam (Judges Pillard and Edward), the panel vacated a district court order entered after Holman’s “term of supervised release had expired, that revoked his supervised release and reincarcerated him.” The panel concluded that the summons was late and the district court thus lacked jurisdiction. Judge Brown, concurring in the judgment, disagreed, saying that “the majority misrepresents the record” and its “analysis” is “largely conclusory and inapt.” Judge Edwards concurred. I have not spent enough time with this case to know who is right, but the judgment is worth flagging.

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