Morris v. Ocean Systems, Inc.

• Decision Date: 19 April 1984
• Docket Number: No. 83-2162,83-2162
• Parties: Sidney MORRIS, Plaintiff-Appellant, v. OCEAN SYSTEMS, INC., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 248

730 F.2d 248

Sidney MORRIS, Plaintiff-Appellant, v. OCEAN SYSTEMS, INC., Defendant-Appellee.

No. 83-2162

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

April 19, 1984.

Benton Musslewhite, Houston, Tex., for plaintiff-appellant.

Fulbright & Jaworski, Theodore Goller, Edward W. Szczepanski, Houston, Tex., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.

TATE, Circuit Judge:

The plaintiff Morris, alleging he was a seaman, sued his employer ("Ocean Systems"), for personal injuries arising out of the latter's negligence and the unseaworthiness of its vessel and equipment. Morris appeals the district court's sua sponte order of involuntary dismissal for the plaintiff's failure to prosecute. Fed.R.Civ.P. 41(b). Finding that the record does not support a finding of contumacious conduct or a clear record of unexplained delay, we reverse the dismissal.

I.

The order of involuntary dismissal was entered on January 25, 1983. At that time, so far as the record before us shows, the formal actions or pleadings in the case were as follows:

1. Complaint filed August 18, 1981;

2. Ocean System's answer filed November 19, 1981;

3. Motion of the defendant to dismiss (on time-bar grounds) or in the alternative for summary judgment, filed May 24, 1982;

4. Motion of the plaintiff for the court to defer ruling upon the defendant's motion so that the plaintiff could engage in discovery, filed October 5, 1982; with this motion was filed a notice by the plaintiff Morris of intent to take an oral deposition of Ocean Systems employees with respect to the question of laches;

5. Response by the defendant, filed October 18, 1982, that the doctrine of laches was not applicable and that there was no need to defer ruling insofar as the motion was to dismiss the plaintiff's Jones Act claim as time-barred; the response further pointed out that the plaintiff had failed to respond to the defendant's motion within ten days of an order of May 28 (not in the record) to such effect;

6. Notice of intent by the plaintiff to take depositions of Ocean System's employees with respect to various matters, filed December 8, 1982.

During this period, however, other events not formally reflected in the record took place. These include chambers or status conferences (which were, of course, known to the district court). They also include settlement efforts and the efforts of the plaintiff's counsel to secure substitute counsel (which were not known to the court or communicated to it by the plaintiff's counsel). The latter were brought to the court's attention by exhibits and attachments to the plaintiff's timely motion of February 24, 1983 for a new trial from the involuntary dismissal of January 25, and they stand uncontradicted in the record. These, as we ultimately hold, negative contumacious conduct or a clear record of unwarranted delay, prerequisite for an involuntary dismissal with "of-prejudice" consequences, so that the district court erred in denying the new trial sought as to the dismissal.

The unprofessional carelessness of the plaintiff's counsel in bringing these matters to the attention of the court is, of course, not readily excusable; but the drastic remedy of an involuntary dismissal with "of-prejudice" consequences may not under our jurisprudence be visited upon a client because of his attorney's deficiencies in professional courtesy. Before detailing this further showing, we deem it appropriate to set forth in full the order of involuntary dismissal entered by the district court on January 25, 1983 in understandable exasperation with Mr. Musselwhite, the plaintiff's lead counsel:

On May 21, 1982, a status conference was held in the above cause. Counsel for the Defendant represented to the Court that it had made an offer to settle the case for $5000.00. Counsel for the Plaintiff represented to the Court that he would recommend to his client that he accept the offer, and that if the Plaintiff did not accept it, counsel would withdraw from the case. The Court gave counsel for the Plaintiff 90 days to get authority from his client to settle the case or withdraw.

No further communication was made to this Court by counsel for the Plaintiff until October 5, 1982, when counsel for the Plaintiff filed a motion to defer ruling on defendant's motion to dismiss or in the alternative for summary judgment, and a notice of intent to take deposition. Kenneth Craig, who had appeared at the status conference for the Plaintiff on behalf of Benton Musselwhite, the Plaintiff's attorney of record, had left Mr. Musselwhite's firm. Because there was some confusion over what had transpired at the status conference, the Court called Mr. Craig and James Warren, the attorney who appeared at the status conference for the Defendant, for a hearing on the matter on December 1, 1982, rather than dismiss the case for failure to prosecute.

At the hearing on December 1, the Court gave counsel for the Plaintiff seven days to either secure agreement from the Plaintiff to the settlement offer or to withdraw from the case. Mr. Musselwhite did not attend this hearing, but Mr. Craig communicated the Court's requirements, including the deadline, to Mr. Musselwhite immediately thereafter, and followed up with a letter to the same effect on the next day.

Since that time, there has been no communication with either this Court or with the clerk's office concerning Mr. Musselwhite's withdrawal from the case. There has been no communication with either this Court or with counsel for the Defendant concerning the Plaintiff's acceptance of the settlement offer. Mr. Goller, counsel of record for the Defendant, sent a letter to Mr. Musselwhite on December 22, 1982, inquiring as to what decision had been made, and sent a copy of that letter to the court. Mr. Goller states that to date he has received no response to that letter, and this Court has not received a copy of any such response. Mr. Goller further states that, despite repeated attempts, he has been unable to contact Mr. Musselwhite.

The above cause is therefore DISMISSED FOR FAILURE TO PROSECUTE.

II.

The plaintiff's counsel's motion for a new trial relied upon exhibits and an affidavit to explain as non-contumacious the delays involved. We should note that the plaintiff Morris was working in the Far East from Singapore and Bombay addresses, while his counsel was communicating with him from Houston, Texas. The uncontested exhibits and affidavit show that, following the status conference of May 21, 1982, the following events occurred:

1. On June 2, 1982, the defendant's counsel confirmed that he now had authority to settle the claim for $5,000, noting that the order of May 21 contemplated "reinstatement in the event of the failure of [either] counsel to obtain his client's authority for the settlement";

2. The plaintiff's counsel wrote the client Morris in Singapore on June 9, 1982, strongly recommending settlement;

3. By letter dated June 27, 1982, received by his lawyer July 6, 1982, Morris rejected the settlement offer as totally insufficient;

4. Letter of September 27, 1982 by Morris' counsel to him in Bombay acknowledging rejection of the offer and informing him that counsel would set up depositions to contest the motion to dismiss, and a letter of the same date to the defendant's counsel stating that he had "just received a letter from Mr. Morris declining your settlement offer" (emphasis added), and enclosing notice of deposition and a motion to defer ruling;

5. Letter of November 19, 1982, to the trial judge, informing him that the judge's law clerk had told him that the judge was considering dismissing the case for want of prosecution, explaining that the settlement agreement at the status conference of May 21 was contingent upon both counsel's securing his respective clients' consent to the agreement, further informing the judge that the plaintiff Morris had rejected the offer, stating he had noticed depositions for December 8, and requesting the court to schedule a status or pretrial conference so that "this case can get back on the track toward eventual trial";

6. After being notified on December 1, 1982 to accept the defendant's settlement offer or else withdraw from the case, the plaintiff's counsel Musselwhite was not able to contact by telephone his client Morris in Singapore until December 4 or 5, at which time Morris again rejected the settlement, and requested Musselwhite to obtain substitute counsel to prosecute Morris' claim;

7. On Monday, December 6, 1982, Musselwhite commenced efforts to locate substitute counsel for his client out in Singapore, which in the case of this overseas accident was difficult. On January 31, 1983, he finally located a counsel who indicated he would seriously consider taking the case, upon which he was given copies of the file.

8. Musselwhite's affidavit attached to his new trial motion of February 4, 1983, included the averment: "I further swear that I sincerely believe, whether rightly or wrongly, that I have a duty not to withdraw from the case until substitute counsel has been obtained or until the client himself has been given reasonable notice of my intent to withdraw and given a reasonable time to obtain substitute counsel."

III.

The district court did not state in its order whether it was dismissing Morris's action with or without prejudice. The record indicates, however, that Morris's claim under the Jones Act for an injury suffered in 1977 may have been barred by that Act's three year statute of limitations even at the time this suit was filed in 1981. Even if the district court dismissed the Jones Act claim without prejudice, Morris would certainly now be barred by limitations from reasserting any claim he may have had under that Act. In such circumstances, we will treat the dismissal as tantamount to a dismissal...