Jackson v. Washington Monthly Co.

• Decision Date: 06 February 1978
• Docket Number: No. 76-1782,76-1782
• Citation: 569 F.2d 119,186 U.S.App.D.C. 288
• Parties: Lester JACKSON, Appellant, v. The WASHINGTON MONTHLY CO. et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 119

569 F.2d 119

186 U.S.App.D.C. 288

Lester JACKSON, Appellant, v.The WASHINGTON MONTHLY CO. et al.

No. 76-1782.

United States Court of Appeals District of Columbia Circuit.

Argued Oct. 25, 1977.

Decided Dec. 13, 1977.

As Amended Feb. 6, 1978.

Lester Jackson, pro se.

John H. C. Barron, Jr., Washington, D. C., for appellee.

Before McGOWAN, TAMM and ROBINSON, Circuit Judges.

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

In the District Court in 1972, appellant instituted this litigation charging appellees with wrongful appropriation and publication of portions of an articlehe had submitted to them in 1970.Settlement negotiations commenced, and although some understandings were achieved, the parties dispute whether they ascended to the level of any sort of enforceable agreement.¹On January 23, 1975, while efforts in that direction still continued, the court convened a status call and during the course thereof directed appellant's counsel to report within 30 days on progress toward full settlement.²No such report was made, and on March 14counsel for appellees wrote to alert the court to the omission.

Almost three months came and went before the District Court, on June 5, sua sponte ordered the action dismissed with prejudice, effective June 25.³The order recited that "(appellant) was instructed through his attorney to advise the Court within thirty (30) days concerning the effectuating of settlement agreement reached between the parties," and that "(appellant's)counsel has failed to obey the instructions of this Court."⁴Nearly a year later, on June 1, 1976, appellant's counsel, claiming inadvertence, moved for reinstatement of the suit pursuant to Federal Civil Rule 60(b).⁵The court denied the motion in the view that "such relief is not warranted by the record currently before the Court . . .,"⁶ and this appeal was initiated.

At first blush, the question before us might seem to be whether the District Court had authority to impose a dismissal with prejudice, ⁷ predicated as it was upon but a single violation by counsel of a pretrial directive.Were that truly the pertinent inquiry, we would be confronted at the outset by the Supreme Court's decision in Link v. Wabash Railroad Company.⁸To be sure, the Court there held that in the exercise of a sound discretion a federal judge contemplating dismissal may visit the sins of the lawyer upon the client who has freely selected him.⁹But Link ¹⁰ and the cases interpreting it ¹¹ have thus far generally approved dismissal of the client's action due to counsel's conduct only when the attorney has taken a course of protracted neglect.Here the District Court did not explicitly rely upon or even advert to such a history in either of its two orders.¹²

We need not, however, consider whether the court exceeded the bounds of legitimate discretion in treating the situation as one appropriate for dismissal, for it has become clear that the court did not have before it two items of highly relevant information.¹³From the showing now made by appellant, ¹⁴ it appears that his lawyer might not only have been grossly rather than just mildly negligent toward his client, ¹⁵ but that he might also have misled the client by reassuring him that the litigation was continuing smoothly when in fact it was suffering severely from lack of attention.These reassurances may even have continued long after the litigation, to the lawyer's knowledge, had already been aborted.¹⁶And it seems that appellant may not have known the extent of such dilatory and deceptive conduct until after the case arrived in this court.

We in this circuit have held that so serious a dereliction by an attorney, when unaccompanied by a similar default by the client, ¹⁷ may furnish a basis for relief under Rule 60(b)(6).¹⁸That is the more so where, as apparently here, little if any prejudice has befallen the other party to the litigation.¹⁹Because the District Court could not have been aware of these all-important circumstances when it acted, we think it proper to vacate the dismissal order and remand the case to afford appellant an opportunity to make his presentation for relief under Rule 60(b)(6).²⁰

We are constrained to conclude this appeal on a note of caution.Trial-court dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken only after unfruitful resort to lesser sanctions.²¹And while appellate review is limited by the binding authority of Link to whether judicial discretion has been abused, ²² a sound discretion hardly comprehends a pointless exaction of retribution.Dismissals for misconduct attributable to lawyers and in no wise to their clients invariably penalize the innocent and may let the guilty off scot-free.That curious treatment strikes us as both anomalous and self-defeating.²³When the client has not personally misbehaved and his opponent in the litigation has not been harmed, the interests of justice are better served by an exercise of discretion in favor of appropriate action against the lawyer as the medium for vindication of the judicial process and protection of the citizenry from future imposition.²⁴Public confidence in the legal system is not enhanced when one component punishes blameless litigants for the misdoings of another component of the system; to laymen unfamiliar with the fundamentals of agency law, that can only convey the erroneous impression that lawyers protect other lawyers at the expense of everyone else.

Vacated and remanded.

1Had the parties reached a binding settlement contract, appellant would have acquired the right to specific enforcement or damages for its breach, regardless of subsequent dismissal of the underlying litigation.Cf.Autera v. Robinson, 136 U.S.App.D.C. 216, 220 n.17, 419 F.2d 1197, 1201 n.17(1969).

2Appellees state that during the session the court criticized appellant's counsel for earlier procrastinations and failures to obey instructions.We put this observation to one side.Hassenflu v. Pyke, 491 F.2d 1094, 1095(5th Cir.1974)(per curiam).No transcript of the status-call conference appears in the record on appeal, and the order dismissing appellant's action referred to but a single dereliction noncompliance with the reporting requirement on settlement progress.

3Jackson v. Washington MonthlyCo., Civ. No. 749-72(D.D.C.)(order of June 5, 1975), Appendix for Appellant(App.) 18;seeFed.R.Civ.P. 41(b).

4Id.

5Fed.R.Civ.P. 60(b), providing:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b);(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation.This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U.S.C., § 1655, or to set aside a judgment for fraud upon the court.Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action.

6Jackson v. Washington Monthly Co., supra note 3(order of June 22, 1976), App. 25 (emphasis supplied).

7The keynote of our review is the proposition that dismissal is a matter left to the sound discretion of the District Court.E. g., Slavitt v. Meader, 107 U.S.App.D.C. 396, 397, 278 F.2d 276, 277(per curiam), cert. denied, 364 U.S. 831, 81 S.Ct. 70, 5 L.Ed.2d 57(1960);Ali v. A & G Co., 542 F.2d 595, 596(2d Cir.1976);Marshall v. Sielaff, 492 F.2d 917, 918(3d Cir.1974);Connolly v. Papachristid Shipping, Ltd., 504 F.2d 917, 920(5th Cir.1974);Beshear v. Weinzapfel, 474 F.2d 127, 130(7th Cir.1973);Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193(8th Cir.1976);Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947-948(9th Cir.1976);Stanley v. Continental Oil Co., 536 F.2d 914, 917(10th Cir.1976).

8370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734(1962).

9Id. at 633-634, 82 S.Ct. at 1390, 8 L.Ed.2d at 739-740.

10Id. at 633-634 & n.11, 82 S.Ct. at 1390-1391 & n.11, 8 L.Ed.2d at 740 & n.11.The Link Court expressly reserved decision on the question whether dismissal is justified solely on the basis of one "unexplained absence from a pretrial conference."Id. at 634, 82 S.Ct. at 1391, 8 L.Ed.2d at 740.

11E. g., Cherry v. Brown-Frazier-Whitney, 179 U.S.App.D.C. 10, 14, 548 F.2d 965, 969(1976);Slavitt v. Meader, supra note 7, 107 U.S.App.D.C. at 398, 278 F.2d at 278;Richman v. General Motors Corp., 437 F.2d 196, 199(1st Cir.1971);Ali v. A & G Co., supra note 7, 542 F.2d at 596-597;Fischer v. Buehl, 450 F.2d 950, 951(3d Cir.1971)(per curiam);Bush v. United States Postal Serv., 496 F.2d 42, 44(4th Cir.1974);Reizakis v. Loy, 490 F.2d 1132, 1135(4th Cir.1974);Boazman v. Economics Lab., Inc., 537...