Michelsen v. Moore-McCormack Lines, Inc., 625

• Decision Date: 29 June 1970
• Docket Number: No. 625,Docket 33247.,625
• Citation: 429 F.2d 394
• Parties: Frederick MICHELSEN, Plaintiff-Appellant, v. MOORE-McCORMACK LINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 394 (1970)

Frederick MICHELSEN, Plaintiff-Appellant, v. MOORE-McCORMACK LINES, INC., Defendant-Appellee.

No. 625, Docket 33247.

United States Court of Appeals, Second Circuit.

Argued March 20, 1970.

Decided June 29, 1970.

Ned R. Phillips, New York City (Abraham E. Freedman, Charles Sovel, and Edward M. Katz, New York City, of counsel), for plaintiff-appellant.

W. Shelby Coates, Jr., New York City (Browne, Hyde & Dickerson, New York City, of counsel), for defendant-appellee.

Before MOORE and FEINBERG, Circuit Judges, and BONSAL, District Judge.^*

PER CURIAM:

The plaintiff, Frederick Michelsen, an able-bodied seaman, claims that he contracted infectious hepatitis while employed aboard the S.S. "Mormacpine," a vessel owned and operated by defendant, during a voyage to South America in the summer of 1965. Plaintiff contends that he contracted the infectious hepatitis "as a result of the filthy and unhealthy manner in which the sanitary facilities aboard the vessel were maintained, particularly in foreign ports where they were used by shoreworkers and not cleaned afterwards."

There is no claim that plaintiff did not diligently prosecute his action from the time it was instituted on December 7, 1965 until it was assigned for trial to Judge MacMahon on December 3, 1968. On that latter day, a Tuesday, counsel for plaintiff was informed that the case would be reached by the end of the week. Counsel called his medical witness, Dr. Wally, to inform him of the tentative trial date and learned that the doctor was ill with the "Hong Kong flu" and that he would be confined to his bed until Monday, December 9. Plaintiff intended to offer the testimony of Dr. Wally to prove that the unsanitary conditions on the vessel were the means by which the disease was transmitted to plaintiff.

On Wednesday, December 4, plaintiff's counsel made an application to Judge MacMahon for a postponement of the trial based upon the unavailability of both the plaintiff, who was at sea, and Dr. Wally, who was ill. Judge MacMahon suggested that the case be tried upon the issue of liability only and was told by plaintiff's counsel that the doctor's testimony was necessary to establish a prima facie case. The judge then suggested the use of a telephone with amplification in the courtroom, but plaintiff's counsel stated that the doctor's condition precluded this. Judge MacMahon passed the case with the directions that the plaintiff hold himself ready to proceed when the case was reached.

On Thursday, December 5, 1968, counsel for plaintiff was informed that the case might be reached that afternoon and was then told to be ready for trial at 10:30 A.M. on Friday, December 6. On Friday morning plaintiff's counsel renewed his application for an adjournment, which was denied, and Judge MacMahon dismissed the action for failure to prosecute.

The decision to grant or deny a continuance is within the discretion of the trial judge. United States v. Ellenbogen, 365 F.2d 982 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S.Ct. 892, 17 L.Ed.2d 795 (1967). It is well settled that a dismissal with prejudice for failure to prosecute will not be reversed on appeal except where there is a showing of an abuse of that discretion. Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Peterson v. Term Taxi, Inc., 429 F.2d 888 (2d Cir. 1970); Redac Project 6426, Inc. v. All-state Insurance Co., 412 F.2d 1043 (2d Cir. 1969); Schwarz v. United States, 384 F.2d 833 (2d Cir. 1967); West v. Gilbert, 361 F.2d 314 (2d Cir.), cert. denied, 385 U.S. 919, 87 S.Ct. 229, 17 L.Ed.2d 143 (1966). In order to properly appraise the exercise of discretion by the trial judge, we must carefully examine each case in its own factual circumstances. Upon the facts of this case, we affirm Judge MacMahon's dismissal of the action.

After a jury had been selected on Friday morning, plaintiff's counsel stated the grounds for his application for an adjournment until the following Monday, which he had made earlier that morning. The grounds were that plaintiff was unable to proceed because of the unavailability of Dr. Wally, whose condition would not permit the taking of his deposition, and because of the unavailability of the plaintiff who was at sea and who would not be available until Monday. When Judge MacMahon learned that the plaintiff's deposition had been taken, he instructed counsel to proceed with the plaintiff's deposition. Plaintiff's counsel objected that the deposition had been taken for discovery purposes and that "without the plaintiff we are unable to proceed. * * * With the deposition for discovery the plaintiff will not make out a prima facie case."

In dismissing plaintiff's action, Judge MacMahon referred to the then recently decided case of Davis v. United Fruit Co., 402 F.2d 328 (2d Cir. 1968), cert. denied, 393 U.S. 1085, 89 S.Ct. 869, 21 L.Ed.2d 777 (1969), which also involved a seaman who was unavailable at the commencement of trial. The trial judge denied an adjournment until the plaintiff was available, and the trial proceeded with plaintiff's deposition which had been taken by the defendant. The ship's records, injury report and medical log were also available to plaintiff's counsel to support his claim. This court, in the belief that there were...