Ace Novelty Co., Inc. v. Gooding Amusement Co., Inc.

• Decision Date: 21 December 1981
• Docket Number: No. 80-3461,80-3461
• Citation: Ace Novelty Co., Inc. v. Gooding Amusement Co., Inc., 664 F.2d 761 (9th Cir. 1981)
• Parties: 1981-2 Trade Cases 64,415 ACE NOVELTY CO., INC., Plaintiff-Appellant, v. GOODING AMUSEMENT CO., INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 761

664 F.2d 761

1981-2 Trade Cases 64,415

ACE NOVELTY CO., INC., Plaintiff-Appellant, v.GOODING AMUSEMENT CO., INC., et al., Defendants-Appellees.

No. 80-3461.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1981.

Decided Dec. 21, 1981.

C. R. Lonergan, Jr., Siderius, Lonergan & Crowley, Seattle, Wash., for plaintiff-appellant.

Peter D. Francis, Seattle, Wash., argued, for defendants-appellees; Daniel P. Chernoff, Portland, Or., on brief.

Appeal from the United States District Court for the Western District of Washington.

Before HUG and FARRIS, Circuit Judges, and WATERS, ^*District Judge.

FARRIS, Circuit Judge:

PlaintiffAce Novelty Co. filed an antitrust action in November, 1975 against the defendants, Gooding Amusement Co. and the American Freedom Train Foundation, in which it alleged that the defendants prevented it from selling patriotic souvenirs near the defendants' "Freedom Train" during the train's cross-country 1975-76 Bicentennial Tour.Instead, exclusive concessionaire's rights were granted to codefendant Jerry L. Kaltenbach Enterprises.

Ace Novelty's pretrial discovery consisted of one document request in April 1976 and two depositions, one in July 1976 and the other in May 1979.Thirteen months after Ace Novelty filed its last deposition, defendant Foundation moved to dismiss because of Ace Novelty's failure to prosecute.The court dismissed the action, under Fed.R.Civ.P. 41(b)andW.D.Wash. CR 41(b), because the "cause has been pending in this court for more than one (1) year, without any proceeding of record having been taken."Local civilrule 41(b) codifies the inherent power of a court to dismiss a case for a party's failure to prosecute, seeLink v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734(1962), by providing that the court may, on its own motion, dismiss an action for want of prosecution where there has been no proceeding of record for more than one year.Ace Novelty appeals, claiming the dismissal was an abuse of discretion.We remand.

Ace Novelty argues that it took no further steps in prosecuting its case because it was ready for trial and nothing further remained to be done.Ace Novelty maintains it was awaiting a trial date in complete reliance upon local civil rule 40¹ which directs the clerk of the district court to fix a trial date after a cause is at issue.Ace Novelty recognizes that a cause is not necessarily ready for trial because it is at issue, but it argues that it was not obligated by the rules to notify the court or take any other action once it was ready for trial.

We have carefully reviewed the local rules of court and the Federal Rules of Civil Procedure.Although the plaintiff has the general duty of moving the cause forward Fidelity Philadelphia Trust Co. v. Pioche Mines Consolidated, Inc., 587 F.2d 27, 29(9th Cir.1978), the local rules do not obligate the plaintiff to take any affirmative step to procure a trial date once he or she has completed discovery and is ready for trial.During oral argument we vigorously questioned defendants' counsel regarding plaintiff's further obligation and were advised of none.Instead, defense counsel suggested that the plaintiff could have moved for summary judgment or could have advised the court by letter of its readiness for trial.We recognize that counsel could have done either act but nothing in the rules explains what Ace Novelty should have done.Once ready for trial, plaintiff is not obligated under the rules, as we read them, to take any further affirmative action.² Instead, the rules place the obligation upon the clerk to fix the date for trial.

In determining whether dismissal is appropriate, the peculiar facts of each case are important.Pearson v. Dennison, 353 F.2d 24, 28(9th Cir.1965).The trial court must consider several factors, including the plaintiff's diligence, States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 805(9th Cir.1970), "the court's need to manage its docket, the public interest in expeditious resolution of litigation ... the risk of prejudice to defendants from delay ... the policy favoring disposition of cases on their merits,"Citizens Utilities Co. v. American Telephone and Telegraph Co., 595 F.2d 1171, 1174(9th Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 273, 62 L.Ed.2d 188(1979), and the availability of less drastic sanctions, ...