Durham v. Florida East Coast Railway Company

• Decision Date: 31 October 1967
• Docket Number: No. 24541.,24541.
• Citation: 385 F.2d 366
• Parties: Clayton E. DURHAM, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

385 F.2d 366 (1967)

Clayton E. DURHAM, Appellant, v. FLORIDA EAST COAST RAILWAY COMPANY, Appellee.

No. 24541.

United States Court of Appeals Fifth Circuit.

October 31, 1967.

Larry Klein, Miller, Cone, Owen, Wagner, Nugent & Johnson, West Palm Beach, Fla., for appellant.

H.T. Cook, St. Augustine, Fla., Kenneth L. Ryskamp, Bolles, Goodwin & Ryskamp, Miami, Fla., for appellee.

Before TUTTLE and WISDOM, Circuit Judges, and HEEBE, District Judge.

WISDOM, Circuit Judge:

The plaintiff appeals from a judgment dismissing the complaint with prejudice. The effect of the dismissal was to visit the sins of the lawyer upon his client. In certain cases when a plaintiff has failed to prosecute his action or his attorney has failed to comply with the rules or orders of court, dismissal of the complaint with prejudice is an appropriate exercise of the judicial discretion to dismiss authorized in F.R.Civ.P. 41. We have concluded, however, that in this case the sins of the lawyer were not so enormous as to justify such a penalty.

The plaintiff filed suit on December 2, 1965, under the Federal Employers' Liability Act alleging that his employer, the defendant railroad, was negligent in failing to provide a safe place to work. The defendant denied negligence and alleged contributory negligence as an affirmative defense. The case has been at issue since December 23, 1965. On May 3, 1966, the case was set down for jury trial during the Court's fall term in Fort Pierce, Florida, where the Court sits twice a year. The Court conducted a pretrial conference on September 20, 1966. When the case was called for trial on October 10, 1966, the plaintiff, alleging that he had discovered new evidence, orally moved the Court for leave to amend his complaint to include a claim under the Federal Safety Appliance Act. Under this act, the plaintiff may recover without regard to any contributory negligence. The district court denied leave to amend, a ruling not contested here. The plaintiff moved for a voluntary dismissal without prejudice. The defendant objected. The Court sustained the objection and directed the plaintiff to present his case, stating:

Today we are here at Fort Pierce and we have come here specifically to try cases and this case is the only jury case on the docket for this week. There are twenty-three jurors in the courtroom. Counsel for both parties have come considerable distance to attend the trial. The evidence urged by the plaintiff\'s counsel falls short of being actually new evidence, in that it is information furnished purportedly by the plaintiff himself. ¶ In light of these facts I am constrained to deny the motion to dismiss and to direct counsel to proceed to trial.

Counsel for the plaintiff then announced that he could not proceed with the trial of the case. The Court thereupon dismissed the action "with prejudice to and at the cost of the plaintiff".

"The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Court." Link v. Wabash Railroad Co., 1962, 370 U.S. 626, 629, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734. F.R.Civ.P. 41, in relevant part, reads: "(a) (2) By order of Court * * * an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper * * * (b) * * * For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * *"

But "the sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion." Durgin v. Graham, 1967, 5 Cir., 372 F.2d 130, 131. The decided cases, while noting that dismissal is a discretionary matter, have generally permitted it only in the face of a clear record of delay or contumacious conduct by the plaintiff. See Link v. Wabash R. Co., 1962, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed. 2d 734; Ockert v. Union Barge Line Corp., 3 Cir. 1951, 190 F.2d 303; Joseph v. Norton Co., S.D.N.Y.1959, 24 F.R.D. 72, 2 Cir., 273 F.2d 65; and other cases noted, 28 U.S.C.A. Rule 41, esp. Note 53. In the Link case, relied on by the appellee here, the case had been pending for more than three years, and after numerous previous delays, the plaintiff's attorney failed to appear for a pre-trial conference without good excuse. The Court upheld the dismissal, expressly relying on all of the circumstances of the case, and...