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11/11/76 James L. Cherry, Mildred F v. Brown-Frazier-Whitney


November 11, 1976




Bazelon,* Chief Judge, and Robinson and Robb, Circuit Judges.


Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 1881-69).



This appeal is from an order of the District Court dismissing appellants' action therein for failure to prosecute, *fn1 and from a later order denying appellants' motion to set the dismissal aside. Because dismissal with prejudice, as it was here, *fn2 is a drastic sanction, *fn3 we have studied the record on appeal with meticulous care. Finding, however, no abuse of discretion in the circumstances of the case, we affirm. I

This action, filed by appellants on July 3, 1969, sought specific performance of a contract to purchase real estate in the District of Columbia or, in the alternative, damages. *fn4 Appellees filed an answer to the complaint and a counterclaim seeking damages. *fn5 Discovery was subsequently completed *fn6 and the case was pretried on December 1, 1971, and apparently was then ready for trial. *fn7 On January 7, 1972, the case was reassigned to a District Judge *fn8 and, we are told, was set for trial on the following May 8 but was thereafter continued indefinitely on appellants' motion. *fn9 From that point onward, the docket reflects no action whatever until shortly prior to the order of dismissal.

On September 27, 1973, the District Judge wrote to counsel for the opposing parties requesting each to advise, within ten days, as to the status of the case. Appellants, who had moved from nearby Maryland to Kentucky, *fn10 were telephonically contacted by their counsel on October 1, whereupon they stated that they were ready for trial. During the telephone conversation, counsel explained that he would send to appellants a letter formally requesting advice as to their trial readiness, and that he wanted confirmation of that fact in writing. Counsel's letter was sent on the same day *fn11 and, no response having been received, counsel renewed his request by another letter on October 15, *fn12 but still there was no response from appellants. Meanwhile appellees had replied by letter of October 2, stating their "view that this case should be dismissed without prejudice by the failure of [appellants] to diligently prosecute the case, particularly in view of the difficulties that now arise in the trial of the case because of the passage of time." *fn13 On October 31, the District Judge ordered the action dismissed for want of prosecution. *fn14

Appellants then presented a timely motion to set the order of dismissal aside, declaring their preparedness for trial. The motion referred to counsel's letters and represented that appellants received the first but not the second, but thought that the first letter was simply a confirmation of the telephone conversation and did not require an answer. Appellees opposed the motion, charging that after the case was pretried appellants "essentially disappeared from sight and took no further steps to prosecute the case." *fn15 The response in opposition called attention to the fact that appellants had not "[explained] why they have failed to prosecute the case for almost two years";16 it also averred that "[many] of the witnesses to the very complex transaction that took place in 1968 and 1969 are no longer available,"17 and that the delay had unfairly advantaged appellants and disadvantaged appellees.18

The District Judge convened a hearing on the motion and entertained argument by counsel for the parties. Counsel for appellants referred to his telephone call and the ensuing letters, and attributed the lack of an answer to a mixup in communications. The judge observed that counsel's explanation "just has to do with what happened since October of '73,"19 and that his "concern is what happened two years from December of '71."20 Counsel's reply was that "we were awaiting word as to what the condition of your trial calendar was so that we could go forward."21 Counsel for appellees reminded that in May, 1972 "at [appellants'] request the case was taken off the calendar"22 and that appellants had "done nothing since that time, taken no further steps in the matter."23 Counsel repeated his claim that appellees "would be greatly prejudiced"24 by reason of uncertainty as to the availability of witnesses and documents.25 The judge took the matter under advisement and later denied the motion to reinstate the action.26 II

In Link v. Wabash Railroad Company,27 the Supreme Court dealt extensively with the power and discretion of federal courts to dismiss lawsuits for want of prosecution. There, in a personal injury case, a district judge set a date for a pretrial conference, and two hours before the appointed time counsel for the plaintiff telephoned from a point 160 miles away to inform the judge's secretary that because of other pressing business he could not be present but would be available on the next day and the day following. The conference nevertheless went forward and the judge, after reviewing the history of the litigation, announced that it would be dismissed sua sponte for failure of diligent prosecution. The prominent facts, aside from the absence of the plaintiff's attorney from the conference, were that six years had passed since the case was filed, three years since the plaintiff had prevailed on defendants' motion for judgment on the pleadings, and two fixed trial dates had been postponed.

The dismissal, the Supreme Court held, was within the district judge's authority,28 which he could appropriately exercise on his own motion.29 On the facts of the case, the Court further held, the judge did not abuse his discretion in doing so. Although counsel's absence from the pretrial conference, in light of the history of the case, permitted an inference that the plaintiff had deliberately been dilatory in proceeding,30 the Court made clear that its affirmance of the district judge's action was predicated on the full circumstances of the case.31

In the case at bar, the dismissal came after the District Judge received no reply to his status inquiry from appellants' counsel - because counsel never got the written confirmation on trial readiness which, quite understandably, he sought from his clients. The order of dismissal awaited three times over the ten-day period within which responses to the judge's request were to have been made.32 After appellants moved to vacate the dismissal, the judge conducted a hearing, listened to counsels' arguments and took the motion under advisement before issuing his ruling. Certainly it cannot be said that the District Judge did not handle the matter judiciously.

Mere lapse of time does not warrant dismissal when the plaintiff has been diligent throughout;33 speed simply for the sake of speed is not the purpose to be served.34 As Link makes plain, whether there has been a "failure to prosecute" is to be determined upon a consideration of all pertinent circumstances,35 and it is evident from the District Judge's expressed concern at the hearing about overall delay that he followed that course.36 The critical fact was that the case had lain dormant for nearly seventeen months after it became ripe for trial.37 The failure to inform the judge, upon his inquiry, that appellants could proceed to trial thus was but the culmination of a history of inactivity which was not persuasively accounted for.38

We cannot view appellants' omission to confirm their trial readiness, and their attorney's consequent inability to suitably respond to the judge's status call, differently from counsel's failure in Link to appear at the pretrial conference, or from other types of delinquencies which have capped a period of protracted idleness.39 By the same token, the District Judge was at liberty to view that omission in light of the inertia which had preceded it.40 To be sure, an adequate explanation may avert a delay otherwise justifying dismissal;41 even a misunderstanding may excuse.42 But the judge was not required to accept appellants' statement that they misread their counsel's unambiguous call for written confirmation of their preparedness for trial.43 Moreover, the essential question was whether upon the whole proceeding appellants had manifested reasonable diligence.44 That a litigant is aroused from his slumber by the imminence of dismissal is hardly an excuse which a court is compelled to abide.45

Dismissal for want of prosecution summons the judge to a high degree of judicial discretion.46 It is well settled that his action will be reversed only for abuse.47 Here the District Judge faced up to the crucial question and concluded that appellants had been inexcusably dilatory. From aught that appears, appellees had no responsibility for the delay48 and there was positive indication that the delay had operated prejudicially to them.49 We find no abuse in this case.

The orders appealed from are accordingly





* Chief Judge Bazelon did not participate in the decision of this case.

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