Boling v. United States, 14727.
| Decision Date | 23 January 1956 |
| Docket Number | No. 14727.,14727. |
| Parties | Eva Rose BOLING, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Ralph L. Baker, J. Adrian Palmquist, Oakland, Cal., Nubar Tashjian, San Francisco, Cal., for appellant.
Lloyd H. Burke, U. S. Atty., Frederick J. Woelflen, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before HEALY, LEMMON and FEE, Circuit Judges.
An appeal has been brought by a plaintiff in an action for damages for alleged personal injury from the order of the District Court terminating the proceeding for lack of prosecution. The action was against the government under the provisions of the Tort Claims Act, 28 U. S.C.A. § 2671 et seq.
The power of the trial court to dismiss a cause where the matter has become stale by virtue of inaction by plaintiff is inherent and has been crystallized by rule. Rule 41(b), Federal Rules of Civil Procedure, 28 U.S.C.A. One of the causes of congestion of the trial dockets is the failure of courts to exercise the authority vested in them thus to dispose of cases which are shaky or unfounded but which are held on the calendar for nuisance value. Since trial judges are hesitant to dismiss such causes of their own motion, for fear of injustice to some litigant, the device of placing cases in which no action has been taken for a considerable time on a docket for dismissal, absent a showing of adequate explanation for the delay, has been used. But even this palliative for the admitted evil has been of little avail, because of the innate hesitancy mentioned above. Because of this fact, an order of dismissal for failure to prosecute will never be set aside unless there has been an abuse of discretion, and, of course, such a situation is not presumed. This case was filed and summons issued July 31, 1951. The order of dismissal and amended order of dismissal with prejudice were filed December 29, 1954, and January 14, 1955, respectively.
The cause came up for trial several times in 1952, but was postponed at the request of the government or the plaintiff. The last setting was January 7, 1953, when, at the request of the government because of the resignation of the Assistant United States Attorney handling it, the cause was taken off calendar. Plaintiff was then represented by an experienced set of attorneys. Plaintiff has made a showing that she attempted substitution of a second firm of attorneys during March, 1953, but that it was not until April, 1954, that the substitution formally took place. However that may be, no change of attorneys was noted on the records of the court.
On May 27, 1953, the files show notice was mailed advising that the cause was calendared for dismissal on June 3, 1953.
On June 3, 1953, the cause was dismissed for failure to prosecute.
Almost one year later, on June 1, 1954, plaintiff herself appeared in court without any attorney whatever. The judge then presiding allowed her one week to employ counsel and move to vacate the order of dismissal. Plaintiff then employed the third set of attorneys, who presently represent her. Upon a subsequent hearing a judge of the...
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