Ballew v. Southern Pacific Co., 23305.
| Decision Date | 18 June 1970 |
| Docket Number | No. 23305.,23305. |
| Citation | 428 F.2d 787 |
| Parties | Cecil BALLEW, Ralph Berry and Paul Hockabout, Appellants, v. SOUTHERN PACIFIC CO., Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
R. B. Mason (argued), of Crow, Lytle, Schleh & Mason, Sacramento, Cal., for appellants.
William R. Denton (argued), San Francisco, Cal., for appellee.
Before HAMLIN, BROWNING and WRIGHT, Circuit Judges.
On September 27, 1966, Cecil Ballew, Ralph Berry and Paul Hockabout, appellants herein, filed an action in the United States District Court for the Northern District of California seeking damages and attorneys fees from Southern Pacific Co., appellee herein. On November 21, 1966, appellee filed its answer. In July, 1967, the clerk's docket sheet indicates that appellee filed the depositions of the three appellants. On March 28, 1968, the clerk of the district court issued an order pursuant to local Rule 11 commanding appellants to appear and show cause why the case should not be dismissed for lack of prosecution.1 On June 6, 1968, counsel for all parties appeared in court at the show cause hearing. When the matter was submitted, the district court made its order dismissing the case. Appellants then filed a motion for rehearing, which was denied by the court on July 9, 1968. Appellants filed a timely notice of appeal to this court which has jurisdiction under 28 U.S.C. § 1291.
The complaint set out that in 1957 appellants were employees of the railroad. They were also members of the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees, which Brotherhood has had a collective bargaining agreement with appellee since 1940. The complaint further alleges that in 1957 appellee abolished certain work which had been performed by the three appellants and eight other persons similarly situated. The abolition of this work adversely affected these eleven persons.
Under the grievance procedures in effect under the Railway Labor Act, 45 U.S.C. § 151 et seq., the Brotherhood filed a claim with the National Railway Adjustment Board concerning this termination. In July of 1964 the N.R.A.B. made a finding that the Southern Pacific violated the agreement of 1940 as amended, and ordered the Southern Pacific "to compensate each claimant for each day from the date his position was abolished, when employes not covered by the Clerk's Agreement delivered and unloaded materials and supplies to stations wherein employee's of other crafts were located." In August of 1966, after protracted negotiations aimed at implementation of the N.R.A.B. award, the Southern Pacific and the Brotherhood reached a settlement with regard to the wages to be paid to the eleven employees. Checks were made out in the amounts agreed upon by the Brotherhood and the Southern Pacific (totaling $30,000.00) and mailed to the eleven employees. Eight employees cashed their checks, thereby implicitly agreeing to the settlement. The three appellants, unsatisfied with the settlement tendered, returned their checks,2 and filed the instant law suit pursuant to Section 3 First (p) of the Railway Labor Act, 45 U.S.C. § 153 First (p).
Upon this appeal appellants concede that the dismissal by the district court in the instant case will be disturbed on appeal only for abuse or or "misuse"3 of discretion. In the instant case no entries appeared on the clerk's docket sheet between the date of filing appellee's answer and March 28, 1966, when the order to show cause issued, except for the filing by appellee of their depositions of appellants. At the hearing on the order to show cause, in his certificate of counsel, and on appeal, appellants' counsel offers little excuse for his inaction. In his brief on appeal he stated that "In addition to legal research, we were attempting to assemble factual data in a digestible form; a hamstrung chore, since, as noted, we had no access to data in...
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Mark Industries, In re
...the acceptable range. This is a determination which must be made based upon the facts of the particular case. Ballew v. Southern Pac. Co., 428 F.2d 787, 789 (9th Cir.1970); Pearson v. Dennison, 353 F.2d 24, 28 (9th In the present case, this court cannot escape the definite and firm convicti......
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Chism v. National Heritage Life Ins. Co.
...the acceptable range. This is a determination which must be made based upon the facts of the particular case. Ballew v. Southern Pac. Co., 428 F.2d 787, 789 (9th Cir. 1970); Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. On the facts in this case, we do not have a "definite and firm convict......
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Cherry v. Brown-Frazier-Whitney
...Bernstein, 166 F.2d 466 (5th Cir. 1948) (16 months); Sellick v. Helson, 459 F.2d 670 (9th Cir. 1972) (20 months); Ballew v. Southern Pac. Co., 428 F.2d 787 (9th Cir. 1970) (16 months); Fitzsimmons v. Gilpin, 368 F.2d 561 (9th Cir. 1966) (15 months); Shale v. Florida Times-Union, 291 F.Supp.......
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Cruz v. Aurora Loan Servs., LLC, Case No. 3:15-cv-00585-LB
...if a plaintiff is to avoid dismissal." Anderson v. Air W., Inc., 542 F.2d 522, 524 (9th Cir. 1976) (citing Ballew v. Southern Pacific Co., 428 F.2d 787 (9th Cir. 1970)). "This court has consistently held that the failure to prosecute diligently is sufficient by itself to justify a dismissal......