Link v. Wabash Railroad Company, No. 13221.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtHASTINGS, , SCHNACKENBERG and KNOCH, Circuit
Citation291 F.2d 542
PartiesWilliam LINK, Plaintiff-Appellant, v. WABASH RAILROAD COMPANY, Defendant-Appellee.
Docket NumberNo. 13221.
Decision Date29 June 1961

291 F.2d 542 (1961)

William LINK, Plaintiff-Appellant,
v.
WABASH RAILROAD COMPANY, Defendant-Appellee.

No. 13221.

United States Court of Appeals Seventh Circuit.

May 26, 1961.

Rehearing Denied June 29, 1961.


291 F.2d 543

Jay E. Darlington, Hammond, Ind., for appellant.

John F. Bodle, Lafayette, Ind., George T. Schilling, Lafayette, Ind. (Stuart, Branigin, Ricks & Schilling, Lafayette, Ind., of counsel), for defendant-appellee.

Before HASTINGS, Chief Judge, SCHNACKENBERG and KNOCH, Circuit Judges.

HASTINGS, Chief Judge.

This is an appeal by plaintiff from an order of the district court entered October 12, 1960 dismissing this cause of action for failure of plaintiff's counsel to appear in court for a pre-trial conference scheduled for hearing on that date.

The order appealed from reads:

"Pursuant to the inherent powers of the Court, and upon failure of plaintiff\'s counsel to appear at a pre-trial, which was scheduled for today, October 12, 1960, at 1:00 o\'clock, pursuant to notice, under Rule 12, counsel having failed to give any good and sufficient reason for not appearing at said pre-trial, the cause is now dismissed."

The history of this litigation is revealed by the record before us in this appeal.

On August 24, 1954, plaintiff William Link filed his complaint in the district court against defendant The Wabash Railroad Company to recover damages for injuries alleged to have been sustained by him when he drove an automobile into a collision with defendant's train standing across a highway in Indiana.

On September 17, 1954, defendant appeared and filed its answer to the complaint.

On April 30, 1955, defendant filed its motion for judgment on the pleadings. On October 18, 1955, hearing was had on this motion. On November 30, 1955, the district court granted defendant's motion for judgment on the pleadings and ordered the cause dismissed. From this order of dismissal plaintiff appealed. On October 10, 1956, our court reversed and remanded the case for trial. Link v. Wabash Railroad Company, 7 Cir., 1956, 237 F.2d 1, certiorari denied 352 U.S. 1003, 77 S.Ct. 563, 1 L.Ed.2d 548 (February 25, 1957). On March 13, 1957, the mandate from this court was filed in the district court.

Subsequently, the trial court set the case for trial for July 17, 1957. On June 27, 1957, on motion of plaintiff and defendant not objecting, the trial date of July 17, 1957 was vacated; and the cause was continued.

On August 17, 1957, defendant filed interrogatories for plaintiff to answer.

On February 24, 1959, the trial court on its own initiative gave notice to the

291 F.2d 544
parties, pursuant to Local Rule 11,1 that the cause would be dismissed on March 25, 1959, unless the court ordered otherwise

On March 24, 1959, plaintiff filed answers to defendant's interrogatories.

On March 25, 1959, hearing was had on the show cause order, and on June 4, 1959 the trial court entered an order retaining the case on the docket and setting it for trial for July 22, 1959.

On July 2, 1959, on defendant's motion, to which plaintiff agreed, the trial date of July 22, 1959 was vacated; and the case was continued.

On March 11, 1960, defendant filed additional interrogatories for plaintiff to answer. On April 15, 1960, after an extension of time granted by the trial court, plaintiff filed answers to the additional interrogatories.

On September 29, 1960, pursuant to Local Rule 12, effective March 1, 1960, the district court caused notice to be mailed to counsel for both parties scheduling a pre-trial conference in this case to be held in court on October 12, 1960, at 1:00 o'clock p. m.

It is undisputed that counsel for both parties received this notice of the pre-trial conference. It is undisputed that Local Rule 12 was in force at the times in question and was adopted pursuant to an order of the district court.

Local Rule 12 provides:

"The court may hold pre-trial conferences in any civil case upon notice given to counsel for all parties."

Pre-trial procedure is authorized by Rule 16, Federal Rules of Civil Procedure, 28 U.S.C.A. Local rule making power generally in the district court is derived from 28 U.S.C.A. § 2071. Rule 83, Federal Rules of Civil Procedure, provides:

"* * * In all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules."

On October 12, 1960, at 1:00 o'clock p. m., the time fixed for the pre-trial conference, the district judge called this case for pre-trial hearing. Defendant's counsel was present in court. Plaintiff's counsel did not appear. At 3:00 p. m., plaintiff's counsel not having appeared, the district court entered the foregoing order of dismissal.

The transcript of the proceedings had in court preceding the entry of the order of dismissal reveals the following factual situation which is not disputed by plaintiff.

The district judge's secretary was called into court and requested by the court to make a statement. She said that she mailed notice of the pre-trial conference to all counsel on September 29, 1960. She gave the following report to the court:

"He plaintiff\'s counsel called about 10:45 on Wednesday, October 12, 1960, and said he was in Indianapolis — that he was busy preparing papers to file with the Indiana Supreme Court. He said he wasn\'t actually engaged in argument and that he couldn\'t be here by 1:00 o\'clock, but he would be here either Thursday afternoon or any time Friday if it could be reset.
"At first he asked to talk to you, but you were on the bench, and he then asked if I could convey this to you.
291 F.2d 545
"I asked him if he had contacted Mr. Bodle defendant\'s counsel, and he said he had yesterday, and he said he couldn\'t be there, and I don\'t know, of course, if he meant for the pretrial or for the deposition."

She stated that she told plaintiff's counsel she would convey this message to the court and opposing counsel. She also reported that this was the oldest civil case on the court docket. It further appeared that this was the first and only attempt counsel made to have the pre-trial conference continued.

Defendant's counsel stated to the district court at this time that plaintiff's counsel called him on the preceding morning (October 11, 1960) from Indianapolis and stated that he expected to be in court for the pre-trial but did not know whether he would attend the taking of a deposition of plaintiff set for the next day. He further stated counsel said "he was doing some work on some papers." He said that was the extent of his contact with him "since the time the Court sent out its notice of the pretrial," which he received on September 30, 1960. He had a call from the secretary of the district judge reporting the message telephoned to her on the day of the hearing from Indianapolis by plaintiff's counsel.

The trial judge then reviewed the history of this litigation and pointed out that plaintiff's counsel had notice of the hearing, did not appear for the hearing and had failed to indicate any "reasonable reason" for not appearing. In view of all the circumstances surrounding counsel's action in the case, the trial court concluded that it should "exercise its inherent power to dismiss this action" upon "failure of plaintiff's counsel to appear at a pretrial * * * counsel having failed to give any good and sufficient reason for not appearing at the said pretrial." The case was then dismissed.

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35 practice notes
  • Admiral Theatre Corp. v. Douglas Theatre Co., No. 77-1839
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 18, 1978
    ...court must be free to use and control pretrial procedure so to insure the orderly administration of justice. Link v. Wabash R. R., 291 F.2d 542, 547 (7th Cir. 1961), Aff'd, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In his pretrial role, the district judge must at times assume the a......
  • City of Cleveland v. Cleveland Elec. Illuminating Co., Civ. A. No. C75-560.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • March 8, 1980
    ...court must be free to use and control pretrial procedure so to insure the orderly administration of justice. Link v. Wabash R. R., 291 F.2d 542, 547 (7th Cir. 1961), aff'd, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In his pretrial role, the district judge must at times assume the a......
  • G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., No. 86-3118
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 27, 1989
    ...trial as well as to discuss means for dispensing with the need for costly and unnecessary litigation. As we stated in Link v. Wabash R.R., 291 F.2d 542, 547 (7th Cir.1961), aff'd, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 Pre-trial procedure has become an integrated part of the judicial pr......
  • Beit v. Probate and Family Court Dept.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 28, 1982
    ...of justice (would) be removed from the control of the Page 646 trial court and placed in the hands of counsel." Link v. Wabash R.R., 291 F.2d 542, 547 (7th Cir. 1961), aff'd 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 Judges "have the inherent power to do whatever may be done under the gener......
  • Request a trial to view additional results
35 cases
  • Admiral Theatre Corp. v. Douglas Theatre Co., No. 77-1839
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 18, 1978
    ...court must be free to use and control pretrial procedure so to insure the orderly administration of justice. Link v. Wabash R. R., 291 F.2d 542, 547 (7th Cir. 1961), Aff'd, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In his pretrial role, the district judge must at times assume the a......
  • City of Cleveland v. Cleveland Elec. Illuminating Co., Civ. A. No. C75-560.
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • March 8, 1980
    ...court must be free to use and control pretrial procedure so to insure the orderly administration of justice. Link v. Wabash R. R., 291 F.2d 542, 547 (7th Cir. 1961), aff'd, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). In his pretrial role, the district judge must at times assume the a......
  • G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., No. 86-3118
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • March 27, 1989
    ...trial as well as to discuss means for dispensing with the need for costly and unnecessary litigation. As we stated in Link v. Wabash R.R., 291 F.2d 542, 547 (7th Cir.1961), aff'd, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 Pre-trial procedure has become an integrated part of the judicial pr......
  • Beit v. Probate and Family Court Dept.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 28, 1982
    ...of justice (would) be removed from the control of the Page 646 trial court and placed in the hands of counsel." Link v. Wabash R.R., 291 F.2d 542, 547 (7th Cir. 1961), aff'd 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 Judges "have the inherent power to do whatever may be done under the gener......
  • Request a trial to view additional results

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