McCargo v. Hedrick

• Decision Date: 11 January 1977
• Docket Number: No. 76-1194,76-1194
• Citation: 545 F.2d 393
• Parties: Pauline McCARGO, Appellant, v. Oley G. HEDRICK et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 393

545 F.2d 393

Pauline McCARGO, Appellant, v. Oley G. HEDRICK et al., Appellees.

No. 76-1194.

United States Court of Appeals, Fourth Circuit.

Argued Aug. 25, 1976.

Decided Nov. 22, 1976.

Rehearing and Rehearing En Banc Denied Jan. 11, 1977.

Douglas E. Bywater, Vienna, Va. (Duvall, Tate, Bywater & Davis, Vienna, Va., on brief), for appellant.

Samuel D. Engle, Jr., Leesburg, Va., Philip D. Gaujot, Charleston, W. Va. (Robert T. Mitchell, Jr., Hall, Monahan, Engle, Mahan & Mitchell, Leesburg, Va., on brief), for appellees.

Before CRAVEN and BUTZNER, Circuit Judges, and FIELD, Senior Circuit Judge.

CRAVEN, Circuit Judge:

This is an appeal by Pauline McCargo from the district court's sua sponte dismissal of her consolidated actions for failure to prosecute. For the reasons stated below, we reverse.

I.

McCargo's suits against Hedrick, Buch, and Green were consolidated in the Northern District of West Virginia on January 19, 1973. ¹ Both suits claim that plaintiff's horse racing license in West Virginia was wrongfully revoked. After the pleadings were closed, and after the 120-day discovery period had expired, there arose under Local Rule 2.08 a duty for counsel to "confer and . . . meaningfully and effectively express and commit themselves in a written statement on matters and issues involved in and controlling determination of the action." The district court extended the deadline for the meeting of counsel to November 27, 1973, and later extended the time for submitting the proposed pretrial order to February 28, 1974.

Counsel were not prompt but filed it about a month later, on April 4, 1974. It was ten pages long. That is not surprising since it was necessarily cut from the pattern of Rule 2.08, which itself runs 11 and a half single-spaced pages. Even so it was not complete. On September 26, 1974, the United States Magistrate instructed counsel that certain amendments to the proposed pretrial order were needed and required their submission by November 18, 1974. This date was extended, and on April 23, 1975, the second proposed pretrial order was filed. The magistrate measured it against Local Rule 2.08 and found it wanting. He returned it to the lawyers on May 13, 1975, with a four-page-plus letter of transmittal.

The magistrate made suggestions which he characterized as "by no means exhaustive" for the preparation of yet another pretrial order. His suggestions were to "serve as a basis for . . . further work in preparing an amended pretrial order which will more nearly structure this action for placement on a trial calendar."

The magistrate made some very fine distinctions. For example, he noted that the amended pretrial order states "that defendant Oley Hedrick has been dismissed as a party to the action." But because the defendant's dismissal had not been made by a motion, the words of the proposed pretrial order were adjudged insufficient to accomplish that end. Counsel were told that Hedrick's dismissal could be achieved by a "declarative statement in the amended pretrial order to the effect that all parties agree to his dismissal."

The magistrate noted that numbered paragraph 18 of the proposed amended pretrial order did not deal with the listing of witnesses as required by numbered paragraph 10 of the suggested pretrial order format of the local court rule. For example, he said that the pretrial order should state precisely what a witness by the name of Mumford was expected to say. Did Mumford hear Green state "clearly and unmistakably that Mrs. McCargo's license was revoked?" The magistrate also expressed his concern that Mumford's whereabouts were unknown at the time of pretrial conference and inquired whether he had been located. There was an expression of concern about unknown addresses of other witnesses.

Then the magistrate turned to new matter. The plaintiff was directed to list "all special damages claimed and the bases therefore including, but not limited to, losses suffered in her sewing business and those resulting from her horse being barred from racing." Among other things, the magistrate wanted to know the parties' respective positions with regard to punitive damages.

Finally, the magistrate advised counsel that if there were questions about the preparation of the amendment to the pretrial order they could communicate with him. He stated, however, that, based on his past experience, he could "see no purpose in scheduling another pre-trial conference prior to trial."

By October 9, 1975, the third proposed amended order had not been filed, and no extension of time had been sought from the court. On that date the district court notified the parties that the consolidated actions would be dismissed with prejudice pursuant to Local Rule 2.09 ² unless good cause for retention was shown within 30 days. The reason cited for the proposed dismissal was that there had been "no manifest interest and action shown in (the suit's) prosecution" and that the case had been on the court docket for more than 12 months.

McCargo's attorney responded to this notice on October 21, 1975, stating that counsel for the parties had been trying to amend the pretrial order pursuant to the magistrate's instructions. He explained, however, that preparation of the amended order had been delayed due to defendants' failure to provide him their lists of documentary evidence. He then moved the court to retain the case on the docket.

By order dated December 4, 1975, the district court sua sponte dismissed the consolidated actions with prejudice and removed them from the docket. He attached to the order the second 13-page proposed amended pretrial order that had been tendered by counsel and stated that it failed to comply with the suggestions made by the magistrate at the pretrial conference and in his May 13, 1975, letter. The district court later denied McCargo's motion to reconsider the order of dismissal.

II.

A district court may dismiss an action for lack of prosecution, either upon motion by a defendant pursuant to Federal Rule of Civil Procedure 41(b) or on its own motion. Reizakis v. Loy, 490 F.2d 1132 (4th Cir. 1974). Because dismissal is such a harsh sanction, however, it "should be resorted to only in extreme cases." Dyotherm Corp. v. Turbo Machine Co.,392 F.2d 146, 149 (3d Cir. 1968). In deciding whether a case should be dismissed, a district court must consider conflicting policies: "(a)gainst the power to prevent delays must be weighed the sound public policy of deciding cases on their merits." Reizakis, 490 F.2d at 1135.

In Reizakis this court listed factors that must be taken into consideration in determining whether dismissal was proper under Rule 41(b). ³ First is the degree of personal responsibility on the part of the plaintiff. Dismissal should be ordered " 'only in the face of a clear record of delay or contumacious conduct by the plaintiff.' " 490 F.2d at 1135. Second is the amount of prejudice to the defendant caused by the delay. "(G)enerally lack of prejudice to the defendant, though not a bar to dismissal, is a factor that must be considered in determining whether the trial court exercised sound discretion." Id. The court in Reizakis also considered whether the record indicated a " 'drawn out history' of 'deliberately proceeding in a dilatory fashion' " and whether the trial court had considered sanctions less drastic than dismissal. To the same effect is Bush v. United States Postal Service, 496 F.2d 42 (4th Cir. 1974).

When these factors are applied to the present case, the balance tips in favor of a trial on the merits rather than dismissal for want of prosecution. There is no indication in the record that McCargo was personally responsible for her lawyer's delay in filing the third proposed pretrial order or that she or her lawyer was deliberately engaging in dilatory tactics. On the contrary, the record shows that on June 6, 1974, counsel for McCargo wrote the court requesting an expedited pretrial hearing and the setting of the trial on the earliest possible date. Exhibit A, Appellant's Brief. Nor is there any evidence that the defendants were prejudiced by the delay. In fact, the record shows that on at least one occasion counsel for the defendants requested an extension of time for drafting the proposed order and, furthermore, that defendants never complained about the delay or sought dismissal as a result of it. Finally, the district court's order dismissing the consolidated actions does not indicate that any less drastic sanctions were first considered. For these reasons, and another one fully discussed below, we conclude that the district court abused its discretion in dismissing the consolidated actions.

III.

The facts of this case illustrate the burden put upon litigants and their counsel by a pretrial procedure that appears to have become an end in itself. Rule 16 ⁴ of the Federal Rules of Civil Procedure was and is a great idea. It authorizes the district courts to conduct a conference with counsel for the purpose of aiding in the disposition of the case, i. e., to make the trial easier. The idea is to help the lawyers and the litigants not to exhaust them.

Wisely, Rule 16 is not compulsory. If the judge views the case as a simple one, he is not compelled to spin the judicial wheels and may simply order the case calendared for trial. If he should decide that a pretrial conference will be helpful in the disposition of the action, Rule 16 tells him and the lawyers briefly and simply the business to be conducted. The agenda is spelled out: (1) simplification of the issues, (2) necessity or desirability of amendments to the pleadings, (3) the possibility of obtaining admissions of fact and admissions of authenticity of documents, (4) limitation of the number of expert witnesses, (5) advisability of referring issues to a special master. The last item on the agenda is "such other matters as may aid in the disposition of the action." "Such other" suggests...