Beshear v. Weinzapfel, 71-1657.

• Decision Date: 20 February 1973
• Docket Number: No. 71-1657.,71-1657.
• Citation: 474 F.2d 127
• Parties: Chuck "C.O." BESHEAR, Plaintiff-Appellant, v. Clara WEINZAPFEL and Esther Weinzapfel, d/b/a Weinzapfel Tavern, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

474 F.2d 127 (1973)

Chuck "C.O." BESHEAR, Plaintiff-Appellant, v. Clara WEINZAPFEL and Esther Weinzapfel, d/b/a Weinzapfel Tavern, Defendants-Appellees.

No. 71-1657.

United States Court of Appeals, Seventh Circuit.

Argued October 27, 1972.

Decided February 20, 1973.

COPYRIGHT MATERIAL OMITTED

Theodore Lockyear, Evansville, Ind., for plaintiff-appellant.

Fred P. Bamberger, Evansville, Ind., for defendants-appellees.

Before HASTINGS, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.

PELL, Circuit Judge.

Plaintiff Beshear, a patron of defendants' tavern, while exiting therefrom, allegedly fell and suffered injuries. His diversity suit for damages was dismissed by the district court for failure to prosecute. Beshear's motion to reopen the case under Rule 60(b), Fed.R.Civ.P., was denied and this appeal followed.

The suit was filed May 20, 1970. Defendants filed their answer on June 22, 1970. Discovery commenced July 15, 1970. The case was assigned for a pretrial conference for September 4, 1970. At that conference the district court, granting defendants' motions, removed the case from the pretrial and trial calendars. The court noted that the case being the last case on the calendar would not have been reached in the October term. The case was assigned for a pretrial conference on January 13, 1971. At the conference, plaintiff's attorney announced to the court "that he had written to his client requesting authority to dismiss the action and was awaiting his reply and . . . in the event his client did not grant authority to dismiss the suit, he would file a petition for leave to withdraw as counsel for the plaintiff."

On March 8, 1971, the case was assigned for a pretrial conference for April 30, 1971. On March 12, plaintiff's attorney petitioned for authority to withdraw his appearance. Attached to the petition was a copy of a letter dated January 12, 1971, sent by certified mail to plaintiff advising him that the attorney was going to withdraw his appearance "within a period of ten days from the date of this letter." The letter pointed out that repeated attempts had been made to find witnesses that Beshear had indicated had previously fallen at the accident site, that none of these had been reached, and that it had been found that some of them did not exist. Further, the letter reminded plaintiff that the attorney had suggested dismissing the claim, which Beshear had indicated he did not want to do, and therefore the attorney felt that he could not "proceed with the matter any further, and that if you want the case to continue, it would be well for you to obtain another attorney."

The district court granted the attorney's petition to withdraw on April 6, 1971. A copy of the court's entry was sent to Beshear by certified mail. At the scheduled pretrial conference on April 30, 1971, Beshear did not appear either in person or by counsel and defendants filed their motion to dismiss because plaintiff had unreasonably failed to prosecute the action. The district court on the same day granted the motion and dismissed plaintiff's complaint with prejudice. A copy of the court's entry was sent to Beshear by certified mail. Return receipts for all of the certified mail mentioned hereinbefore were returned executed by an "agent" of Beshear and there is no claim he did not receive any of them. A copy of the motion to dismiss, to which was attached an attorney's affidavit detailing Beshear's derelictions in respect to prosecuting the suit, was also mailed to the plaintiff.

Thereafter the courthouse door was not darkened by Beshear, either personally or by counsel, until May 24, 1971, the date on which the case was listed on the court's calendar for trial. At that time by attorney (#2), plaintiff filed a motion for relief from the order of dismissal. The motion contains no reference to any of the grounds for relief specified in Rule 60(b), nor indeed to the Rule itself; however, we may assume that Rule was the intended vehicle for relief seeking. The motion was not accompanied by any memorandum of authorities or argument but did have attached to it the affidavit of Beshear. That one-page document recited that he had never received any notice of any kind that a pretrial conference was to be held on April 30, 1971. For the purpose of this appeal we assume that he also intended to say that he was otherwise unaware of the fact that the pretrial conference had been scheduled. The affidavit then states that on April 12th he had received a copy of the trial calendar showing the case was set for trial on May 24, 1971, that having knowledge his first attorney had withdrawn, he took steps to procure another lawyer for the purpose of attending and appearing "in Court on May 24th for the purpose of asking for continuance or if necessary, to appear at trial in this case." The affidavit is silent as to the date on which Beshear first took steps to procure the new counsel, as to whether any trial preparations had actually been made in the event trial had been found to be "necessary" on the 24th, and as to any contention that the plaintiff did possess a mertiorious claim despite the correspondence from his first attorney indicating substantial doubt as to the provability of the case. The affidavit was not executed until May 22nd, two days before it was filed.

On June 7, 1971, defendants filed a detailed memorandum containing argument and citing authorities in opposition to the motion for relief. On June 18, 1971, another firm of attorneys (#3) filed an appearance for Beshear. The record does not indicate that anything else was filed by the new firm other than the written appearance. On June 29, 1971, the district court denied the motion for relief. Notice of appeal was timely filed by the third set of attorneys as to the denial of the motion. Thereafter, another attorney (#4) also entered the fray and made the argument before this court. We are unable to say whether the arguments made to this court might have been persuasive to the district court. None of them was made, and the district court only had the bare factual bones contained in Beshear's affidavit, being that he had not known of the pretrial conference, that he had gotten an attorney sometime before the May 24th supposed trial date (although he had been aware since January that he might have to get another attorney and since early April that he would in fact have to do so), and that the attorney was prepared to appear on the 24th, hopefully to secure a continuance.

At the time of filing the motion for relief, Beshear could in the alternative have launched a direct appeal from the dismissal. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2376 (1971). In doing what he did here, it would appear that he followed what we deem ordinarily to be the better practice of bringing to the attention of the trial court at some appropriate time before appeal the errors which it is claimed have been committed. The district court already familiar with the case is thereby given an opportunity to correct any mistakes it might have made and the parties will avoid the expenses and delays involved in appeals. Unfortunately, while Beshear took a step in the right direction, the travel toward the point of being of assistance to the court in determining whether it had committed error was so slight as to be of minimal consequence.

Irrespective of whether there had been a direct appeal from the dismissal or an appeal from the denial of the Rule 60(b) motion, the district court will not be reversed in the absence of an abuse of discretion. Wright & Miller, supra; 3 Barron & Holtzoff, Federal Practice and Procedure (Wright ed.) § 1323. We recognize also as well-established law that the federal courts have been generally liberal in setting aside dismissals upon a proper showing of "mistake, inadvertence, surprise, or excusable neglect" (the first set of reasons for relief in Rule 60(b)). Beshear on this appeal also urges that he is entitled to relief under the last catchall category of 60(b), "any other reason justifying relief from the operation of the judgment." Although this clause is also probably generally interpreted liberally, Professor Moore has stated that "absent exceptional and compelling circumstances, a party will not be granted relief from a judgment under clause (6): even though relief from the judgment might have been obtained had an appeal been taken, . . . ." 7 Moore, Federal Practice ¶ 60.271, at 348 (1972). We do not find exceptional or compelling circumstances in the present case so as to call into play the catchall clause. Basically, the question presented to us is whether the obvious neglect was excusable and, even if it prima facie was, whether under the particular circumstances there nevertheless was an absence of abuse of discretion.

The leading case involving a dismissal for want of prosecution following failure of attendance at a pretrial conference is Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The Supreme Court expressly refrained from deciding whether unexplained absence from a pretrial conference would alone justify a dismissal but held such failure in the context of other evidence of similar purport could be considered as justifying a dismissal.

At the time the district court dismissed the action, there was a context of facts, which we have set forth hereinbefore, reflecting a lack of prosecutive intent which went beyond the mere failure to attend the pretrial conference. On the basis of contextual facts known or apparent to the district court at the time of dismissal, we cannot say there was a clear abuse of discretion. The question remains, however, whether the facts adduced on the motion for relief when brought to the attention of the court were of a sufficiency to make the denial of the motion an abuse of discretion.

To a considerable extent the factual situation as it appeared to the district court...