Alexander v. Pacific Maritime Association

• Decision Date: 11 January 1971
• Docket Number: No. 23470.,23470.
• Citation: 434 F.2d 281
• Parties: Fred A. ALEXANDER, Louis P. Camarota, George Cathro, Albert S. Dimond, Lewis Freeman, Frank Marani, Ray C. Marvin, James Newell and Earl D. Petersen, Appellants, v. PACIFIC MARITIME ASSOCIATION a non-profit corporation, et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

434 F.2d 281 (1970)

Fred A. ALEXANDER, Louis P. Camarota, George Cathro, Albert S. Dimond, Lewis Freeman, Frank Marani, Ray C. Marvin, James Newell and Earl D. Petersen, Appellants, v. PACIFIC MARITIME ASSOCIATION a non-profit corporation, et al., Appellees.

No. 23470.

United States Court of Appeals, Ninth Circuit.

November 9, 1970.

Rehearing Denied January 11, 1971.

Howard B. Crittenden, Jr. (argued), San Francisco, Cal., for appellant.

Richard Ernst (argued) of Ernst & Tollen, San Francisco, Cal., Norman Leonard (argued) San Francisco, Cal., for appellees.

Before HUFSTEDLER and KILKENNY, Circuit Judges, and SMITH, District Judge.^*

KILKENNY, Circuit Judge:

Although the appellants attempt to argue the merits, this appeal presents for decision the sole issue of whether the district judge abused his discretion in dismissing appellants' amended complaint for lack of prosecution.

Appellants are non-registered ship clerks claiming rights to work on the waterfront in San Francisco. They are not members of the International Longshoremen's & Warehousemen's Union (ILWU), of which Local 34 acts as the exclusive collective bargaining agent of ship clerks in the San Francisco Bay area.

Appellee, Pacific Maritime Association (PMA), is a corporation whose members are steamship companies and other waterfront employers. It acts as the collective bargaining representative of employers of ship clerks in the San Francisco Bay area. Other appellees are J. A. Robertson, as trustee of the ILWU and PMA supplemental wage benefit fund; Local 34 of the ILWU; and certain other employee members of the joint labor relations committee and certain employee trustees of certain funds.

The background of this litigation commenced in June, 1962, when appellants suggested to some of the appellees that certain grievances be submitted to arbitration. Receiving no response, appellants, on August 13, 1962, filed a complaint in the district court alleging that PMA and ILWU had violated certain collective bargaining agreements by arbitrarily restricting hiring practices to fully registered ship clerks who were members of Local 34 of ILWU and that only union members were granted such registered status. On November 1, 1962, the district court dismissed the complaint on the ground that it dealt with unfair labor practices over which the National Labor Relations Board had exclusive jurisdiction. In December of the same year, the Supreme Court in Smith v. Evening News, 371 U.S. 195, 83 S. Ct. 267, 9 L.Ed.2d 246 (1962) held that the primary jurisdiction of the board did not apply so as to prevent the institution of an action in federal court by individual employees for alleged violations of collective bargaining agreements. Based on the decision in Smith, our court, on February 28, 1963, in Alexander v. Pacific Maritime Assn., 314 F.2d 690 (9th Cir. 1963) reversed the decision of the district court and remanded the case with instructions to set aside the dismissal and grant appellants time within which to file an amended complaint.

The amended complaint was filed on April 12, 1963, again charging discrimination in favor of union members in the manner in which employment and employment benefits were dispensed under the collective bargaining agreement. On May 6, 1963, appellees moved for a summary judgment on the ground that the appellants had failed to exhaust the arbitration procedures found in the collective bargaining contract or, in the alternative, to stay the proceedings until such procedures had been fully exhausted. On July 19, 1963, the district court granted a motion for stay of proceedings pending disposition of the arbitration proceedings. From this order an appeal was prosecuted, but dismissed on the ground that the stay was not a final judgment from which an appeal could be taken. Alexander v. Pacific Maritime Assn., 332 F.2d 266 (9th Cir. 1964).

On June 5, 1964, the appellants filed a "grievance" pursuant to the grievance-arbitration procedures outlined in the contract. On July 22, 1964, after a hearing before the joint checker labor relations committee, the committee found against the appellants, both on their claim that the provisions of the contract required they be registered and on their claim that they had been discriminated against in favor of union members.

On April 9, 1965, the appellants moved the district court to modify the stay and to proceed without the exhaustion of arbitration procedures. This motion was denied by order dated April 26, 1965, in which appellants were directed to proceed with its hearings before an arbitration committee. Following this order, on May 24, 1965, the committee notified the appellants and other interested parties that it was going to proceed with the arbitration. After a hearing, this committee concluded that there had been no violation of the anti-discrimination clause, at which time appellants were advised that the decision was subject to appeal to the Coast Arbitrator. An appeal was taken, but appellants failed to proceed with the arbitration procedures of the contract by refusing to agree to a clarification of issues.

Thereafter, appellants urged the district court to grant their motions and require the appellees to answer the amended complaint and appellants' 1962 interrogatories. Hearings were held on this motion on August 26, 1966. The court denied the motion on the ground that appellants' arbitration remedies had not been exhausted, but emphasized that if appellees failed to use due diligence or good faith in proceeding with further arbitration proceedings, proper action could be taken in that appellants would be "still in court."

In October and November, 1966, the appellants filed their briefs in the arbitration proceeding. On June 30, 1967, the arbitrator made an award holding that appellants had failed to establish that there was a contract violation with respect to the substitute provisions of the contract regarding registration and that there was no contract violation of the provisions against discrimination. Neither appellants nor appellees followed through on the award.

Nine months later, on March 28, 1968, the district court, acting sua sponte issued an order requiring appellants to show cause why the action should not be dismissed for failure to prosecute. On May 10, 1968, appellants renewed their motion for an order requiring the union and PMA to answer the amended complaint and the interrogatories. At the same time, appellees asked the court to dismiss the case for failure to prosecute, or, in the alternative, to enter an order confirming and enforcing the arbitration award. On June 5, 1968, a hearing was held on the order to show cause and the pending motions. At the termination of the hearing, the court ordered a dismissal of the action. The formal order of dismissal was filed on June 14, 1968.

The order to show cause was issued in conformity with Rule 11,¹ Rules of Practice, United States District Court, Northern District of California, effective July 16, 1962. It is well settled in this circuit that a district court has power to dismiss an action for want of prosecution on its own motion, both under Rule 41(b), F.R.Civ.P., and under its local rule, or even in the absence of such rules. Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1965); Hicks v. Bekins Moving & Storage Co., 115 F.2d 406, 408-409 (9th Cir. 1940); States Steamship Co. v. Philippine Air Lines Co. & Qantas Airways, 426 F.2d 803 (9th Cir. 1970). To the same effect is Link v. Wabash Ry. Co., 370 U.S. 626, 82 S.Ct....