Connolly v. Papachristid Shipping Ltd., 74-1214

• Decision Date: 09 December 1974
• Docket Number: No. 74-1214,74-1214
• Citation: 504 F.2d 917
• Parties: Robert CONNOLLY, Plaintiff-Appellant, v. PAPACHRISTID SHIPPING LTD. et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 917

504 F.2d 917

Robert CONNOLLY, Plaintiff-Appellant, v. PAPACHRISTID SHIPPING LTD. et al., Defendants-Appellees.

No. 74-1214.

United States Court of Appeals, Fifth Circuit.

Dec. 9, 1974.

Martin L. Katz, Herbert Zelenko, New York City, for plaintiff-appellant.

Victor T. Hudson, William W. Stoudenmire, Mobile, Ala., for defendants-appellees.

Before TUTTLE, RONEY and GEE, Circuit Judges.

TUTTLE, Circuit Judge:

This case involves a dismissal of plaintiff's claim with prejudice for failure to prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.

The plaintiff, Robert Connolly, a citizen of Grand Caymen Islands, British West Indies, was an able-bodied seaman on a vessel owned by the defendant. On October 10, 1972, he was injured in an accident at sea and subsequently filed suit in the Southern District of Alabama on October 16, 1972 alleging both Jones Act and general maritime claims for personal injury. The case proceeded in an orderly fashion. Discovery was commenced immediately, and by January 1, 1973 the plaintiff filed six depositions with the court. On defendant's motion discovery was twice extended, until it was ultimately cut off on April 16, 1973. During this time the plaintiff filed lengthy interrogatories and a motion for production of documents. The pre-trial conference set for June 6 was delayed, and several times during the succeeding months the trial court heard status reports on the proceedings in the case. The docket entries do not show the substance of these status reports, nor was a record taken of them.

On September 14, 1973, the cause was reset for trial on October 16, 1973. From the trial court's order of October 16, 1973 we learn that sometime during September the plaintiff's counsel represented to the trial court that the plaintiff had been unwilling to communicate with them, and had refused to respond to an offer of compromise the plaintiff's local counsel and the defendant had arrived at which the plaintiff's counsel thought was a satisfactory settlement.

On October 12, 1973 the plaintiff's local Mobile counsel moved the court to allow them to withdraw from the case, and on October 16 the trial court granted this motion. The trial court ordered the plaintiff to inform the court no later than November 1 of local replacement counsel, and further ordered the plaintiff to be prepared to comply with its order setting the pre-trial for November 21. The order specified that copies would be mailed to the plaintiff in Grand Caymen, and the plaintiff's Grand Caymen counsel.

On November 2, one day after the deadline established by the trial court for selection of local replacement counsel, the plaintiff's original counsel in the case (who had by this time withdrawn) moved the court on behalf of the plaintiff to dismiss the suit without prejudice, stating in the motion that the plaintiff had engaged New York counsel who intended to prosecute the matter. This motion was denied on November 8. On November 21, at the pre-trial conference, new counsel appeared on behalf of the plaintiff, who moved the court to permit them to appear as counsel for the plaintiff, and further moved for a continuance so that they would adequately be able to represent the plaintiff's interest. In that motion, this new set of local Mobile counsel stated to the court that they had been retained only the day before, and that they were unprepared to participate in the pre-trial conference at that time. The trial court's response was to dismiss the suit with prejudice on the grounds that the plaintiff had failed adequately and diligently to prosecute the matter, and had failed to comply with the court's pre-trial order. Plaintiff appeals this ruling of the trial court. We reverse.

The trial court's decision to permit the plaintiff's original counsel to withdraw on October 16 was largely premised on the representation of that counsel that the plaintiff had refused to communicate to them his decision on the offer of compromise. ¹ We do not believe the decision of the trial court to dismiss with prejudice complies with the standards established by this Court in Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir. 1968) cert. denied, 392 U.S. 928, 88 S.Ct. 22878 20 L.Ed.2d 1387 (1969) and Durham v. Florida East Coast Railway Co., 385 F.2d 366 (5th Cir. 1967).

It is well established that under Rule 41(b) of Federal Rules of Civil Procedure the district court has discretion to dismiss a suit for failure to prosecute if the plaintiff fails to comply with the trial court's orders or with the rules of civil procedure. Link v. Wabash Railway Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), see, generally, 5 Moore, Federal Practice, #41.11 (2d ed. 1974). Such a dismissal, however, must be within the sound discretion of the court, and this Court will review it to determine whether or not the trial court has abused that discretion. Pond v. Braniff Airways, Inc., 453 F.2d 347 (5th Cir. 1972); Brown v. Thompson, 430 F.2d 1214 (5th Cir. 1970). We have previously felt that this remedy is so drastic that it 'should be used only in extreme situations, as the court has a wide range of lesser sanctions.' Flaksa v. Little River Marine Construction Co., supra, 389 F.2d at 887-888. In general, the test is whether there is 'a clear record of delay or contumacious conduct by the plaintiff,' Durham v. Florida East Coast Railway Co., supra, 385 F.2d at 368, and whether 'lesser sanctions would not serve the best interest of justice.' Pond v. Braniff Airways, Inc., supra, 453 F.2d at 349; Brown v. Thompson, supra, 430 F.2d at 1215. In general, this Court has made it clear that lesser sanctions normally will suffice, and except in the most 'flagrant circumstances,' ...