
    SPENCER v. HITZ CONST. CO.
    No. 1131.
    United States District Court, D. Montana.
    July 14, 1952.
    Andrew G. Sutton and Joseph P. Hennessey, Billings, Mont., for plaintiff.
    Rockwood Brown, Horace S. Davis, Ben N. Forbes, and Cale Crowley, Billings, Mont., for defendant.
   PRAY, Chief Judge.

Motions supported by affidavits and briefs in the above cause have been submitted to the court for determination. On September 11th, 1950, the court sustained a motion of defendant in said cause and gave the plaintiff 30 days from receipt of notice in which to file an amended complaint. Nothing further appears to have been done in said cause by either side until October 22nd, 1951, when plaintiff filed his amended complaint, one year and eleven days after the expiration of the time fixed in the order of the court.

The next move in the case was made by defendant on October 26th, 1951, when a motion to dismiss and to strike was filed herein. On February 15th, 1952, plaintiff filed his motion, seeking an order of court, “nunc pro tunc,' pursuant to Rules 6(b), 15(a) and 43(e) enlarging the time to file amended complaint herein”, setting forth his excuses, supported by affidavit of his counsel, Andrew G. Sutton; the following day the latter counsel filed his “amended motion”, seeking the same relief but with the following changes in the rules relied upon: rules 6(b)(2), 15(a)(c), and 43(e) “of the U. S. District Court Rules of Circuit Procedure”, for enlarging the time to file amended complaint herein. On February 23rd, 1952, defendant’s motion resisting the motions of plaintiff was filed in this cause.

Briefs of counsel and affidavits and the files generally have been considered by the-court. No doubt counsel for defendant could have brought about the dismissal of the case after the expiration of the 30 days granted by the order of court for the filing of an amended complaint but no action was taken. Both sides appear to have been about equally blameable for the delay occasioned in this case. '

Having considered all of the matters presented by both sides, and being duly advised, and good cause appearing therefor, in the opinion of the court, the motion of defendant should be denied and leave granted to file an answer to the amended complaint within twenty .days after receipt of notice hereof, and such is the ruling of the court herein.  