Durham v. District of Columbia

• Decision Date: 10 July 1985
• Docket Number: No. 84-730.,84-730.
• Citation: 494 A.2d 1346
• Parties: Melvyn S. DURHAM, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: D.C. Court of Appeals

494 A.2d 1346

Melvyn S. DURHAM, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 84-730.

District of Columbia Court of Appeals.

Argued April 30, 1985.

Decided July 10, 1985.

COPYRIGHT MATERIAL OMITTED

Mercer Gordon Anderson, Washington, D.C., for appellant.

Michele Giuliani, Asst. Corp. Counsel, Washington, D.C., with whom Inez Smith Reid, Corp. Counsel, John H. Suda, Principal Deputy Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellees.

Before PRYOR, Chief Judge, FERREN, Associate Judge, and PAIR, Associate Judge, Retired.

PRYOR, Chief Judge:

In this appeal, appellant Melvyn S. Durham contends that the trial court abused its discretion in dismissing his complaint as a sanction for his attorney's failure to appear at a pretrial conference. For the reasons stated below, we reverse and remand the case for further proceedings.

I

In a complaint dated August 6, 1980, appellant filed suit against the District of Columbia and certain Metropolitan Police Department officers charging assault and battery, false arrest, and false imprisonment.

Following a period of discovery, a number of attempts were made over approximately one and a half years to schedule a pretrial conference. A pretrial conference was initially set for May 27, 1982. At appellees' request, the court granted a continuance and rescheduled the pretrial conference for September 28, 1982. Pretrial statements were filed by both sides on September 27, 1982. On September 28, 1982, the trial judge assigned to the case recused himself, sua sponte, and the pretrial conference was again rescheduled, this time for April 26, 1983. The case, however, for reasons attributable to both parties, was delayed once again.

A new pretrial conference was set for January 19, 1984 at 10:15 a.m. On January 19, the trial judge and counsel for appellees waited approximately one hour for appellant's attorney to appear at the scheduled conference. When appellant's attorney did not appear, the trial judge orally granted appellees' motion to dismiss appellant's complaint for failure to prosecute.

On March 2, 1984, appellant filed a motion to reinstate the complaint. In his motion, appellant stated that on the morning of January 19, 1984, his attorney was scheduled to appear in a number of unrelated matters in the Superior Court and the United States District Court. Appellant's attorney telephoned the Superior Court's Chief Judge's chambers and utilized the "call-in system."¹ According to appellant's motion, his attorney also "checked in" with the Civil Assignment office regarding his civil matters for the day, which included the pretrial conference in this case. At approximately 11:15 a.m., after having attended to a matter in another courtroom, appellant's counsel proceeded to the pretrial conference, where he was advised by the trial judge's secretary that the case had been dismissed.

On April 13, 1984, the court entered an order denying appellant's motion to reinstate the complaint.

Appellant then filed a motion for reconsideration on April 20, 1984. This motion was essentially identical to appellant's March 2 motion to reinstate the complaint. By order dated April 30, 1984, the trial court denied this motion as well. Appellant filed his notice of appeal on May 11, 1984.²

II

The sole issue presented in this case is whether the trial court abused its discretion in imposing the severe sanction of dismissal following appellant's counsel's failure to attend a pretrial conference. Because the trial court made no findings on the record explaining the basis for its order, we must conclude that the court did not properly exercise its discretion.

The order of dismissal states simply that "upon consideration of the oral motion to dismiss for lack of prosecution . . . [it is ordered] [t]hat the motion . . . is hereby granted without prejudice."³ At first glance, this language could suggest that the trial court relied upon Super.Ct.Civ.R. 41(b), dealing with dismissal for failure to prosecute, in imposing the sanction against appellant.⁴ Because the order of dismissal, however, was entered immediately following plaintiff's counsel's failure to appear at the January 19 pretrial conference, Super. Ct.Civ.R. 16-II is more directly applicable to the trial court's order. In any event, the significance of which rule the trial court relied upon is minimal because our analysis and decision in this case would be similar under either rule.

Rule 16-II states as follows:

If counsel or a party proceeding pro se fails to appear at a pretrial, settlement, or status conference, the court may enter a default, a dismissal of the case with or without prejudice, or take such other action, including the imposition of penalties and sanctions, as may be deemed appropriate.

This court has not had a previous opportunity to interpret Rule 16-II. The rule, however, is close in purpose and language to Rule 41(b), see supra note 4, and Rule 37(b) (sanctions for failure to comply with discovery orders)⁵ and we look to our decisions interpreting those rules for guidance in construing Rule 16-II.

Rule 16-II, like Rules 41(b) and 37(b), enumerates a number of sanctions, varying, in severity, to be imposed for a party's failure to attend a pretrial conference. The rule does not specify criteria for selecting the sanction to be imposed in any particular instance of noncompliance. By its language, the rule places within the discretion of the trial court the decision of which sanctions to impose.⁶ As with Rules 41(b) and 37(b), the trial court's decision in this area will be disturbed only for an abuse of discretion. See Taylor v. Washington Hospital Center, 407 A.2d 585 (D.C. 1979), cert. denied, 446 U.S. 921, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980); Beckwith v. Beckwith, 379 A.2d 955, 958-59 (D.C. 1977), cert. denied, 436 U.S. 907, 98 S.Ct. 2239, 56 L.Ed.2d 405 (1978). While the discretion vested in the trial court to select appropriate sanctions is broad, it is not unlimited. Thus, in the context of Rule 41(b) we have stated that notwithstanding this court's limited scope of review, "[w]e may not . . . uphold a dismissal with prejudice . . . absent some showing that the trial court has complied with the guidelines we have set forth for the exercises of discretion to dismiss under that rule." LaPrade v. Lehman, 490 A.2d 1151, 1155 (D.C. 1985).

It is axiomatic that the trial court must exercise its discretion prudently and must design any sanction to fit the violation in question. See 6 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1524, at 266 (Supp. 1985). The trial court must be especially cautious where it chooses to impose the very severe sanction of dismissal. Dismissal should be imposed "sparingly." Frazier v. Center Motors, Inc., 418 A.2d 1018, 1020 (D.C. 1980); Beckwith v. Beckwith, supra, 379 A.2d at 959. Such caution is a reflection primarily of our well-established preference for deciding cases on their merits. See, e.g., Garces v. Bradley, 299 A.2d 142, 144 (D.C. 1973).

In order to ensure that the sanction of dismissal is utilized sparingly, it is necessary that before the trial court dismisses a complaint under Rules 41(b) or 37(b), it must first consider whether less severe sanctions are justified and impose a lesser sanction where appropriate. Braxton v. Howard University, 472 A.2d 1363, 1365 (D.C. 1984); Taylor v. Washington Hospital Center, supra, 407 A.2d at 590. Lesser sanctions include, inter alia, a warning, a fine, the imposition of costs or attorney's fees, and the transference of the case to a subsequent pretrial calendar. Dismissal is only appropriate upon some showing of willful and deliberate delay by the plaintiff. LaPrade v. Lehman, supra, 490 A.2d at 1155. Moreover, before dismissal is warranted, the court must determine that appellee was prejudiced by appellant's delay. See Braxton v. Howard University, supra, 472 A.2d at 1366; Jackson v. Washington Monthly Co., 186 U.S.App.D.C. 288, 291-92, 569 F.2d 119, 122-23 (1977).

In the present case, the trial court made no findings on the record with respect to any of the factors discussed above. Nor have appellees articulated to this court any prejudice which they suffered as a result of appellant's counsel's failure to appear at the pretrial conference,⁷ or any evidence of willful conduct by appellant or his attorney. Without such findings, we cannot determine whether dismissal was warranted in this case.⁸

The record before us suggests that the only basis for the court's sanction was the failure of appellant's counsel to appear for the January 19 pretrial conference. While we do not decide at this time whether appellant's conduct justified dismissal, we observe that many federal courts that have addressed this issue have concluded that a singular absence from a pretrial conference with no other evidence of dilatoriness on the part of the plaintiff is an insufficient basis for the sanction of dismissal. See, e.g., Tolbert v. Leighton, supra, 623 F.2d at 585; Gonzalez v. Firestone Tire & Rubber Co., supra, 610 F.2d at 241; Silas v. Sears, Roebuck & Co., supra, 586 F.2d at 382; Dove v. Codesco, 569 F.2d 807 (4th Cir. 1978). However, where there has been evidence of other dilatory or contumacious conduct, appellate courts have held that dismissal under those circumstances was not an abuse of discretion. See, e.g., Lang v. Wyrick, 590 F.2d 257 (8th Cir. 1978); Kung v. FOM Investment Corp., 563 F.2d 1316 (9th Cir. 1977); Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710 (1st Cir. 1977); Murrah v. Fire Insurance Exchange, 480 F.2d 613, 614 (5th Cir. 1973); Beshear v. Weinzapfel, 474 F.2d 127 (7th Cir. 1973); Hyler v. Reynolds Metal Co., 434 F.2d 1064 (5th Cir. 1970), cert. denied, 403 U.S. 912, 91 S.Ct. 2219, 29 L.Ed.2d 68 (1971); Provenza v. H & W Wrecking Co., 424 F.2d 629 (5th Cir. 1970).

In sum, it is generally agreed that, in exercising the...