Colokathis v. Wentworth-Douglass Hosp., WENTWORTH-DOUGLASS

• Decision Date: 15 November 1982
• Docket Number: No. 82-1410,WENTWORTH-DOUGLASS,82-1410
• Citation: 693 F.2d 7
• Parties: Bernard P. COLOKATHIS, Plaintiff, Appellant, v.HOSPITAL, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 7

693 F.2d 7

Bernard P. COLOKATHIS, Plaintiff, Appellant, v. WENTWORTH-DOUGLASS HOSPITAL, et al., Defendants, Appellees.

No. 82-1410.

United States Court of Appeals First Circuit.

Argued Oct. 8, 1982.

Decided Nov. 15, 1982.

Charles A. Meade, Concord, N.H., with whom Stephen R. Fine & Associates, P.A., Manchester, N.H., was on brief, for plaintiff, appellant.

Robert M. Larsen, Concord, N.H., with whom Eugene Van Loan, III, A.J. McDonough, Manchester, N.H., and Sulloway, Hollis & Soden, Concord, N.H., were on brief, for defendants, appellees.

Before COFFIN, Chief Judge, TIMBERS, ^* Senior Circuit Judge, and BREYER, Circuit Judge.

COFFIN, Chief Judge.

Bernard Colokathis appeals from an order of the District Court of New Hampshire dismissing his complaint for want of prosecution. After hearing oral argument from the parties and carefully reviewing the record, we conclude that the district court was within the proper exercise of its discretion in dismissing the case.

The case has a long history. We rehearse here only the highlights. Plaintiff filed his complaint in November of 1977. Extensive discovery was conducted by plaintiff's first trial counsel and a trial date was set for June 9, 1980. On May 6, 1980, the case was continued on the court's own motion and the trial date was changed to December 29, 1980. On September 24, 1980, plaintiff's counsel withdrew, citing serious and irreconcilable differences with the plaintiff. There followed a parade of new counsel for the plaintiff, totalling at least seven by May of 1982. ¹ One of the new counsel, David DePuy, entered on December 10, 1980. Because he "had not had an opportunity to review all of the pleadings and discovery compiled to date", he asked for and was granted a continuance in the trial from the scheduled December 29, 1980 date to December 7, 1981.

On January 15, 1981, another new counsel, Leo Hirsch, appeared on behalf of plaintiff. He advised the court that he expected to be able to review the file of approximately 4,000 to 5,000 pages within six weeks of receiving it. The court gave him until March 16, 1981 to notify the court and parties what further discovery would be necessary to prepare the plaintiff's case for trial. On March 11, 1981, the plaintiff reported to the court that it was "impossible to complete the review of the file in a thorough manner so as to be able to decide what additional discovery might be required by March 16, 1981." The court granted an extension to July 31, 1981. On May 22, 1981, attorney Hirsch outlined his requested discovery and defendants objected. On June 11, 1981, the court announced that the case would take priority on his calendar and that "[n]o further continuance will be granted." At a hearing on September 11, 1981, the trial judge expressed his concern over "the lack of any discovery since my Order of January 20, 1981, and the close proximity of final pretrial on November 20, 1981 and trial date of December 7, 1981" and ordered a September 11, 1981 cutoff for plaintiff's additional discovery requests and an October 8, 1981 hearing on discovery objections.

On September 16, 1981, plaintiff's local counsel withdrew. Plaintiff failed to appear at the discovery hearing, held on October 9, and the court denied the discovery requests. On October 21, 1981, attorney Hirsch moved to have the October 9 orders withdrawn, arguing that they amounted to a denial of due process. On October 28, 1981, new local counsel appeared and moved to continue, arguing that attorney Hirsch had not received notice of the October 9 hearing and that "at the very best the discovery conducted by plaintiff's previous trial counsel was inadequate." On November 13, 1981, the trial judge denied the motion to withdraw the October 9 orders, denied all further discovery and all further continuances, "absent the most exigent of circumstances", and ordered that "this case will proceed to trial as presently scheduled, or it will be dismissed with prejudice." Because of the trial judge's illness, the trial date was changed again, to April 27, 1982. The final pretrial conference was scheduled for April 8, 1982.

On April 2, 1982, attorney Hirsch withdrew, citing "irreconcilable differences" with the plaintiff over the payment of legal fees and the conduct of the case. On April 6, 1982, the court dismissed the case. The court noted the dilatory tactics of the plaintiff, the cost to the defendants, the waste of judicial resources and the probability of further delay. Plaintiff's local counsel moved to reinstate the case, assuring the court that he was ready, willing and able to proceed with the case as scheduled. The court denied the motion.

On appeal, plaintiff argues that the court abused its discretion by not considering less drastic sanctions than dismissal and by not waiting until the date set for trial to determine whether the latest change in counsel would result in further delay of the case. He also asserts that he should have had notice and a hearing prior to the dismissal of his case or at least an opportunity to explain to the court the reasons for the actions that provoked dismissal. We disagree.

We have had several occasions recently to rehearse the standards for dismissal, under Fed.R.Civ.P. 41(b), for want of prosecution. As we noted in Medeiros v. United States, 621 F.2d 468, 470 (1st Cir.1980) (quoting Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977)):

"A district court unquestionably has the authority to dismiss a case with prejudice for want of prosecution; this power is necessary to prevent undue delays in the disposition of pending cases, docket congestion, and the possibility of harassment of a defendant. See Link v. Wabash R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); 9 Wright & Miller, Federal Practice and Procedure Sec. 2370 at 199. Because of the strong policy favoring the disposition of cases on the merits, see Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir.1971), we, and federal courts generally, have frequently warned that dismissals for...