Nealey v. Transportacion Maritima Mexicana, S. A.

• Decision Date: 21 October 1980
• Docket Number: No. 78-1009,78-1009
• Citation: 662 F.2d 1275
• Parties: Albert NEALEY, Plaintiff-Appellant, v. TRANSPORTACION MARITIMA MEXICANA, S. A. and Maersk Lines, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1275

662 F.2d 1275

Albert NEALEY, Plaintiff-Appellant, v. TRANSPORTACION MARITIMA MEXICANA, S. A. and Maersk Lines,

Defendants-Appellees.

No. 78-1009.

United States Court of Appeals, Ninth Circuit.

Oct. 21, 1980.

Eric L. Henrikson, Oakland, Cal., argued, for plaintiff-appellant; Thomas J. Boyle, San Francisco, Cal., on brief.

Francis L. Tetreault, Graham & James, San Francisco, Cal., argued for defendants-appellees; A. M. Young, Graham & James, San Francisco, Cal., on brief.

Appeal from the United States District Court for the Northern District of California.

Before SNEED and SCHROEDER, Circuit Judges, and BLUMENFELD, ^* District Judge.

BLUMENFELD, District Judge:

Longshoreman Albert Nealey appeals from a dismissal with prejudice of his complaint for damages against Transportacion Maritima Mexicana, S. A. (Transportacion) and Maersk Lines (Maersk). The district court, in a two-sentence order, granted appellees' motion to dismiss under Fed.R.Civ.P. 41(b) ¹ "because of failure to prosecute because of an unreasonable delay in service of process." We vacate the order and remand.

I.

Nealey's complaint alleged that in the course of his employment as a longshoreman, he was injured while working aboard appellees' vessel, the SS TOLUCA, on June 24, 1974. His complaint, seeking damages on the ground that his injuries were the proximate result of appellees' negligence, was filed on May 29, 1975 in the Superior Court for the State of California in and for the City and County of San Francisco. This was some eleven months after the accident but within California's one-year statute of limitations for actions to recover damages for personal injuries. ² Appellees were not served with the complaint and summons until April 1977, nearly two years after commencement of the action and nearly three years after the cause of action arose.

Appellee Transportacion answered on April 27, 1977, and about one week later, on May 5, petitioned for removal to the federal district court under 28 U.S.C. § 1441 ³ on grounds of diversity of citizenship. Appellee Maersk followed the same course, both answering the complaint and joining in the removal petition on May 5. The parties then promptly commenced discovery proceedings, with both sides propounding and answering interrogatories and document production demands. Appellees also noticed various depositions. Thereafter, on July 18, appellees moved "for an Order dismissing this action on the ground of failure to prosecute." The district court granted the motion after a hearing and dismissed the action with prejudice on August 19, 1977. From this order, Nealey appeals.

II.

We are faced at the outset with a dispute between the parties as to the appropriate standard of review. The case of Anderson v. Air West, Inc., 542 F.2d 522 (9th Cir. 1976), supplies the proper guideline:

A district court's dismissal pursuant to Rule 41(b) will not be overturned unless the district judge clearly abused his discretion.... A rule of thumb as to the meaning of the abuse of discretion standard provides that the trial court's exercise of discretion should not be disturbed unless there is "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors. (")

Id. at 524 (citations omitted) (quoting In re Josephson, 218 F.2d 174, 182 (1st Cir. 1954)). ⁴ In our view, the district court's judgment in the instant case was indeed in error.

III.

Without question, a plaintiff's failure to serve process in a timely manner may in some cases amount to a failure to prosecute, see Anderson v. Air West, Inc., supra, at 525, and a district court may dismiss an action on this ground, Fed.R.Civ.P. 41(b). ⁵ But the court's exercise of discretion in that regard is cabined by the requirement that it "weigh( ) ... the relevant factors." Anderson v. Air West, Inc., supra, at 524. As we recently explained:

A district court's decision on a motion to dismiss for want of prosecution requires weighing conflicting policies: on the one hand, the court's need to manage its docket, the public interest in expeditious resolution of litigation, and the risk of prejudice to defendants from delay; on the other hand, the policy favoring disposition of cases on their merits.

Citizens Utilities Co. v. AT&T, 595 F.2d 1171, 1174 (9th Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 273, 62 L.Ed.2d 188 (1979).

A.

The first two of these four policy considerations suggest that rule 41(b) is in large part a housekeeping measure related to the efficient administration of judicial business for the benefit of all litigants with cases pending. In this respect, however, the federal and state judicial systems are not "identic," Guaranty Trust Co. v. York, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079 (1945); inaction that crowds a state court docket does not, upon removal, necessarily translate to delay in the federal judicial system. Appellees entered the federal courthouse on their own command. They must now recognize that the conduct of business here is motivated by our own housekeeping concerns, and not those of our state court brethren. See Hanna v. Plumer, 380 U.S. 460, 473, 85 S.Ct. 1136, 1145, 14 L.Ed.2d 8 (1965) ("Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts even though some of those rules will inevitably differ from comparable state rules."). Rule 41(b) cannot be invoked to assist the state judiciary in managing its business; if that was appellees' goal, they should have sought dismissal in the Superior Court. In fact, all parties began diligently to press this matter toward resolution even before removal was accomplished. See, p. 1283 infra. And after removal there was no inactivity, no failure to prosecute, that interfered with the federal goal of "secur(ing) the just, speedy, and inexpensive determination of every action." Fed.R.Civ.P. 1. No federal housekeeping interest was advanced by depriving appellant of his cause of action. Consequently, administrative concerns should not have figured in the district court's calculus when it exercised its discretion in this case.

B.

The two remaining policy considerations that support rule 41(b)-"on the one hand, ... the risk of prejudice to defendants from delay; on the other hand, the policy favoring disposition of cases on their merits," Citizens Utilities Co. v. AT&T, supra, at 1174-are more pointedly relevant to the adversarial interests of the parties in a particular piece of litigation. Although delay in the prosecution of an action may be a factor to take into account in weighing each of the two alternative policies that may be urged in support of a rule 41(b) motion, the effect of a delay on the interests of the parties involve policy considerations different from those of judicial efficiency. They implicate a federal interest in fairness to litigants.

Our cases have tended to focus on the factors of prejudice and delay. ⁶ We have held that "the failure to prosecute diligently is sufficient by itself to justify a dismissal," Anderson v. Air West, Inc., supra, at 524; that "(u) nreasonable delay creates a presumption of injury to appellees' defenses," Alexander v. Pacific Maritime Association, 434 F.2d 281, 283 (9th Cir. 1970); and that "whether actual prejudice exists may be an important factor in deciding whether a given delay is 'unreasonable,' " Citizens Utilities Co. v. AT&T, supra, at 1174 (emphasis in original). It is important to remember, however, that there is a competing concern at stake-specifically, the interest in disposing of cases on their merits. The pertinent question for the district court, then, is not simply whether there has been any, but rather whether there has been sufficient delay or prejudice to justify a dismissal of the plaintiff's case.

We recognize that neither delay nor prejudice can be viewed in isolation. The two factors are often integrally related. As we noted in Pearson v. Dennison, supra, at 28, "The longer the delay, the more likely prejudice becomes." It is therefore appropriate to analyze the relationship between the two.

A defendant's motion for dismissal under rule 41(b) bears some similarity to "an avoidance or affirmative defense." Fed.R.Civ.P. 8(c). Thus, it should be incumbent upon the movant to come forth with some facts indicating delay on the part of the plaintiff. See Gomez v. Toledo, --- U.S. ----, ----, 100 S.Ct. 1920, 1923, 64 L.Ed.2d 572 (1980). This will rarely be difficult; indeed, we would expect that such facts would appear on the face of the motion papers. But only unreasonable delay will support a dismissal for lack of prosecution, see Anderson v. Air West, Inc., supra, at 524, and unreasonableness is not inherent in every lapse of time. In our judicial system, many delays are of an acceptable duration; others, though lengthy, may be unavoidable. Where these exist, there is no basis for a dismissal.

Even where a plaintiff has failed to do what he might have done earlier, he may have an explanation that excuses or justifies his failure. It is at this point that the extent of prejudice to the defendant, if any, becomes important. As Judge Friendly has explained in the analogous context of laches, see note 8 supra, "A weak excuse may suffice if there has been no prejudice; an exceedingly good one might still do even when there has been some." Larios v. Victory Carriers, Inc., 316 F.2d 63, 67 (2d Cir. 1963). Thus, delay alone should not be deemed to create a " 'presumption of prejudice,' save in the sense that if the plaintiff proffers no pleading or presents no proof on the issue of (reasonableness), the defendant wins." Id. at 66.

The plaintiff, of course, "has the ultimate burden of persuasion both as to the excuse for his own delay and as to lack of prejudice to the defendant." Id. at 67. However:

(W)hen such a plaintiff has presented...