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Joseph Muller Corp. v. De Gerance

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


decided: December 31, 1974.

JOSEPH MULLER CORPORATION ZURICH, PLAINTIFF-APPELLANT,
v.
SOCIETE ANONYME DE GERANCE ET D'ARMEMENT, GAZOCEAN U.S.A., JOHN DOE AND RICHARD ROE, JOHN DOE CORPORATION AND RICHARD ROE CORPORATION, THE NAMES OF THE DEFENDANTS, JOHN DOE, RICHARD ROE, JOHN DOE CORPORATION, AND RICHARD ROE CORPORATION BEING FICTITIOUS, THEIR REAL NAMES AND IDENTITIES PRESENTLY UNKNOWN TO THE PLAINTIFF, DEFENDANTS, GAZOCEAN INTERNATIONAL, S.A., GAZOCEAN FRANCE, PETROMAR SOCIETE ANONYME, AND MUNDO GAS, S.A., DEFENDANTS-APPELLEES

An appeal from judgment entered in the United States District Court for the Southern District of New York, Whitman Knapp, Judge, dismissing Plaintiff's Complaint for failure to prosecute. Affirmed.

Clark, Associate Justice,*fn* Moore and Timbers, Circuit Judges.

Author: Per Curiam

On September 25, 1969, appellant, a Swiss corporation, filed this private antitrust action in the District Court, naming six foreign and domestic corporations as defendants. Two of these corporations were served with the complaint at that time.*fn1 The remaining four, appellees herein, were not served until December of 1973, over four years later. Upon return and pursuant to Fed. R. Civ. P. 41(b), appellees moved for an order dismissing the case as to them for failure to prosecute, which was in due time granted in an opinion filed February 27, 1974. We affirm.

Rule 41(b) provides that: "For failure of the plaintiff to prosecute * * * a defendant may move for dismissal of an action * * * against him." In Messenger v. United States, 231 F.2d 328 (2d Cir. 1956), this Circuit applied the rule in circumstances similar to those in the instant case and concluded that an unexplained and unreasonable delay in service constituted grounds for dismissal, without regard to any showing of actual prejudice. In granting the motions, the District Court found that appellant had "produced not the slightest rational excuse" for its procrastination and held that Messenger controlled.

Dismissals under Rule 41(b) are, of course, largely a matter of the trial court's discretion. See Link v. Wabash Railroad Co., 370 U.S. 626, 633, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962); Taub v. Hale, 355 F.2d 201, 202 (2d Cir.), cert. den., 384 U.S. 1007, 86 S. Ct. 1924, 16 L. Ed. 2d 1020 (1966). Here, we perceive no abuse of discretion. Messenger is the governing law and the judgments are therefore affirmed.*fn2


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