Carter By and Through Carter v. U.S., 85-3162
| Decision Date | 21 January 1986 |
| Docket Number | No. 85-3162,85-3162 |
| Citation | 780 F.2d 925 |
| Parties | Jeremy CARTER, a minor By and Through his parents and next friends Douglas and Tina CARTER, and Douglas and Tina Carter, individually, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Daniel L. Molloy, Tampa, Fla., for plaintiffs-appellants.
Gary J. Takacs, Lynne England, Asst. U.S. Attys., Tampa, Fla., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before HILL and HENDERSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.
The plaintiffs-appellants, Jeremy Carter, a minor suing by and through his parents and next friends Douglas and Tina Carter, and Douglas and Tina Carter, individually, filed this action against the United States on October 7, 1981 alleging that military medical personnel negligently treated Mrs. Tina Carter and her son Jeremy during and immediately after his birth. After two years of discovery and three continuances, the government field a motion to dismiss for failure of the plaintiffs to prosecute and for their failure to comply with the court's discovery orders. The district court, without holding a hearing or considering lesser sanctions, granted the motion on the day it was filed by the government. Rather than appeal the dismissal directly, the Carters instead filed a motion to vacate the order under Fed.R.Civ.Pro. 60(b). The district court denied that motion and a timely appeal was taken from that judgment. After a review of the briefs, the record and the relevant case law, we reverse the district court's denial of the motion to vacate the judgment.
On December 29, 1981, the district court directed the plaintiffs to confer with the government within fifteen days and to furnish the court with an estimate of the length of the trial. The plaintiffs failed to respond to this order and the court issued a second order to the same effect on February 17, 1982. 1 The plaintiffs responded two days later stating that they anticipated a period of twelve months for discovery and that they estimated that the trial would take approximately three to five days.
On January 20, 1982, the government served the plaintiffs with its first set of interrogatories and requests to produce documents. These interrogatories included a question seeking the identity of the plaintiffs' expert witnesses. The plaintiffs failed to respond prompting the government to file motions to compel answers. On August 9, 1982, the court granted these motions directing the plaintiffs to fully comply with the discovery requests within ten days.
The plaintiffs answered the interrogatories fourteen days after the motion to compel was granted by the district court. 2 The responses were unverified. Furthermore, the plaintiffs replied to the inquiry concerning expert witnesses by stating that they were unable to identify them at that particular time but would do so within ninety days.
On January 13, 1983, both parties filed a motion for a continuance based on the plaintiffs' difficulties in communicating with their counsel and their failure to obtain expert witnesses. The plaintiffs had been out of the country for the four months immediately following the filing of their complaint. The court granted this joint motion for a continuance.
On April 17, 1983, the parties filed another joint motion for a continuance. This motion was also granted by the court.
On June 1, 1983, the government served the plaintiffs with a second set of interrogatories. After receiving no response, the government filed a motion to compel which was granted on January 19, 1984. The interrogatories were answered twelve days later.
The parties filed a pretrial order on September 2, 1983, in preparation for a scheduled pretrial conference on that date. Plaintiffs' counsel stated in an affidavit attached to his motion to vacate the dismissal order that he met with counsel for the government on August 30 or 31, 1983 and advised him that he would request a continuance of the trial at the pretrial conference. According to plaintiffs' counsel, he told the government about various witnesses he thought he would call as experts. In his affidavit the attorney stated that he assumed that the government was satisfied with this explanation. A third continuance was granted on September 2, 1983. This was the first and only continuance granted solely at the plaintiffs' request. The court also continued discovery until February 29, 1984 and set a second pretrial conference for March 29, 1984.
On March 29, 1984, the government filed a motion to dismiss for failure to prosecute pursuant to Fed.R.Civ.P. 37 and 41(b) because of the plaintiffs' failure to identify their expert witnesses and their failure to supplement their answers to interrogatories. On that same date, plaintiffs' counsel provided the government with those supplemental responses although none of their experts had yet examined Jeremy Carter and the discovery deadline had since passed. At the second pretrial conference, which was held on the day that the motion to dismiss was filed, the court granted the motion to dismiss, stating as its reason that the plaintiffs "failed to prosecute this case with due diligence." A motion to vacate pursuant to Fed.R.Civ.P. 60(b) was timely filed by the plaintiffs and denied by the court on February 1, 1985. It is that order that is currently on appeal to this court.
At the outset, we note that the Carters did not appeal the order granting the motion to dismiss. It is well settled that an appeal from a denial of a Rule 60(b) motion cannot serve as a substitute for an appeal of the underlying order. See Parks v. U.S. Life & Credit Corp., 677 F.2d 838, 840 (11th Cir.1982). In such circumstances we will reverse a district court's decision denying a Rule 60(b) motion only upon a showing of an abuse of discretion. Fackelman v. Bell, 564 F.2d 734 (5th Cir.1977). 3 It is also true, however, that a Rule 60(b) motion "is a flexible tool designed to do substantial justice; [cites omitted] and we should not stray too far into technical niceties in considering its applicability." Id. at 736-37. In addition, the Rule's "main application is to those cases in which the true merits of a case might never be considered because of technical error...." Id. at 735.
The district court dismissed the plaintiffs' action summarily and in one paragraph. The order does not disclose the Federal Rule of Civil Procedure upon which it was predicated, but it did state that the "plaintiffs have failed to prosecute the action with due diligence." Therefore, we must assume that the court dismissed the case under Fed.R.Civ.P. 41(b) 4 for failure to prosecute.
In this circuit, the legal standard to be applied under Rule 41(b) is whether there is a "clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983) (emphasis in original). Although the relevant standard of review is abuse of discretion, id., case law makes clear that the dismissal of an action "is a sanction of last resort, applicable only in extreme circumstances." Id. The district court in the present case made no explicit finding that lesser sanctions would not be appropriate. The motion to dismiss was granted the same day it was filed thereby precluding the plaintiffs from filing a responsive brief. And, the district court gave no reasons to support its decision, making review of that decision difficult. Therefore, were this case before us on direct appeal of the dismissal order, we would have little trouble in deciding that the court abused its discretion under Rule 41(b). As noted earlier, however, the issue facing us is whether the court abused its discretion by failing to grant the...
To continue reading
Request your trial
-
Dimuccio v. D'Ambra
...(11th Cir.1983). The propriety of a Rule 41(b) dismissal is commended to the trial court's broad discretion. See, Carter v. United States, 780 F.2d 925, 927 (11th Cir.1986). The Court approaches the issue mindful that dismissal with prejudice "is a sanction of last resort, applicable only i......
-
Mingo v. Sugar Cane Growers Co-op. of Florida, CO-OP
...925 (11th Cir.1986) (trial court abused discretion by ordering dismissal without considering lesser sanctions); Carter v. United States, 780 F.2d 925, 928 (11th Cir.1986) (same; dicta ); also, Jones v. Bowen, 790 F.2d 1550, 1553 (11th Cir.1986) (cause remanded). In Goforth, any order other ......
-
Montgomery v. Hayes Robertson Grp., Inc., Case No. 13-CV-10029-KMM
...that he can correct obvious errors or injustices and so perhaps obviate the laborious process of appeal." Carter ex rel. Carter v. United States, 780 F.2d 925, 928 (11th Cir. 1986) (quoting Fackelman v. Bell, 564 F.2d 734. 736 (11th Cir. 1977)). A motion for reconsideration "is generally no......
-
Murchison v. Grand Cypress Hotel Corp.
...settlement agreement. We review the district court's denial of Murchison's motion for an abuse of discretion. See Carter v. United States, 780 F.2d 925, 927 (11th Cir.1986). Murchison also alleges as error the district court's failure to hold an evidentiary hearing before summarily enforcin......