Glo Co. v. Murchison and Company
Decision Date | 20 December 1967 |
Docket Number | No. 16236.,16236. |
Citation | 397 F.2d 928 |
Parties | GLO CO., an Illinois Corporation, Appellant, v. MURCHISON AND COMPANY, a Delaware Corporation, Barnsdall Oil Company, a Delaware Corporation and Sunray DX Oil Company, a Delaware Corporation. |
Court | U.S. Court of Appeals — Third Circuit |
Thomas Hart Fisher, Chicago, Ill., for appellant.
William S. Megonigal, Jr., Morris, Nichols, Arsht & Tunnell, Wilmington, Del., for appellee, Murchison and Co.
E. Norman Veasey, Richards, Layton & Finger, Wilmington, Del. (Robert H. Richards, Jr., Wilmington, Del., on the brief), for appellee, Sunray DX Oil Co.
Before SMITH and FREEDMAN, Circuit Judges, and WORTENDYKE, District Judge.
Certiorari Denied November 12, 1968. See 89 S.Ct. 290.
This is an appeal from orders of the United States District Court for the District of Delaware dismissing an action to enforce plaintiff's rights under contracts made with defendants. The order of dismissal for failure to prosecute was based upon the court's own motion under Civil Rule 12 of the United States District Court for the District of Delaware.1
The present action was commenced on November 1, 1954. On September 18, 1963, the District Court issued an order to show cause why the case should not be dismissed for lack of prosecution. At oral argument, on its return, the Court warned plaintiff's counsel that no further delay would be tolerated. The Court then dismissed the rule to show cause. Upon return of a subsequent order to show cause, issued on June 3, 1966, plaintiff's counsel assured the Court that the matter would be moved for trial. Nevertheless, the Court dismissed plaintiff's case with prejudice and refused to reopen on motion for reargument. Plaintiff says that the dismissal was an abuse of judicial discretion.
The Court has a wide discretion as to penalties for failure of diligent prosecution. Lyford v. Carter, 274 F.2d 815 (2nd Cir. 1960). A dismissal of this case certainly appears justified by the inaction of counsel in failing to move for trial after repeated warnings by the court. However, a dismissal with prejudice is an extremely harsh penalty for such delay.
As the Court recognized, there appears to be no dispute that an amount of money is owed to plaintiff under the contracts in suit. A dismissal with prejudice has the effect of stripping plaintiff of the power to enforce these contract rights. Even the Court below intimated that this was not the result it wanted to bring about, stating: We agree that this should be the result. To that end the cause should be reinstated and brought to trial with all convenient speed.
The judgment of the District Court is reversed, and the cause remanded for further proceedings not inconsistent with the views herein expressed.
WILLIAM F. SMITH, Circuit Judge, did not participate in the decision of this case because of illness.
Before KALODNER, FREEDMAN and VAN DUSEN, Circuit Judges.
This is an old suit which the district court, acting on its own motion, dismissed with prejudice under its Local Rule 12 which authorizes such disposition where no action has been taken for a period of one year.1
We have the utmost sympathy with the desire of the district court to enforce its Local Rule 12. However, after consideration of the complex factual circumstances of the case, we conclude with the greatest reluctance that in view of the unusual nature of the circumstances of this case the interest of justice will best be served by affording plaintiff an opportunity to prove its case at trial.
We therefore set aside the dismissal of the action by the district court, which should fix a specific time for the trial of the case at which plaintiff will have the opportunity to go forward on pain of dismissal with prejudice for lack of prosecution.
In view of the record in this case, I dissent respectfully from the majority opinion. This suit was started on November 1, 1954. In spite of the district court rule quoted in the majority opinion providing for dismissal in cases "wherein no action has been taken for a period of one year", at least five periods of no action by plaintiff for over a year1 as well as numerous warnings of dismissal to counsel for plaintiff occurred before the case was finally dismissed in August, 1966 and the Motion for Reargument and To Alter and Amend the Judgment of Dismissal was denied. These warnings were as follows:
1. On September 2, 1959, the Clerk wrote plaintiff that the case would be dismissed for lack of prosecution unless some action were taken by October 6 (92a) and on September 29, plaintiff filed a motion for partial summary judgment, which was withdrawn five years later.
2. On September 18, 1963, the court on its own motion ordered that the action would be dismissed "unless good reason for the inaction is shown at a hearing fixed for * * *" September 27, 1963.
3. On September 24, 1964, the Chief Judge held a conference at which he gave plaintiff's counsel this warning (11b):
4. In April, 1966, plaintiff answered a letter from the law clerk of the Chief Judge asking the status of the case by saying that he was preparing some interrogatories (18b-19b and 95a) but he filed nothing until after the Chief Judge entered the following order on June 3, 1966 (77a):
After the hearing on June 27, the Chief Judge found there was no good reason for the above-described inaction in a Memorandum Opinion filed August, 1966 (92a-96a) where this language appears at 95a-96a:
The Supreme Court of the United States has held that a district court judge has the discretion to dismiss an action under such circumstances irrespective of the existence of a Rule such as Local Rule 12. See Link v. Wabash Railroad Co., 370 U.S. 626, 633-643, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962)2 where the court said:
This court has recently followed the holding in the Link case, supra, in at least two cases:
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...cases pending). The trial court has wide discretion to dismiss for lack of prosecution under Fed.R.Civ.P. 41(b). Glo Co. v. Murchison & Co., 397 F.2d 928, 929 (3rd Cir.1967), cert. denied393 U.S. 939, 89 S.Ct. 290, 21 L.Ed.2d 276 (1968). “Though there are a wide variety of sanctions short o......
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