Reizakis v. Loy

• Decision Date: 22 January 1974
• Docket Number: No. 72-2402.,72-2402.
• Citation: 490 F.2d 1132
• Parties: Paris REIZAKIS, Appellant, v. Albert E. LOY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

490 F.2d 1132 (1974)

Paris REIZAKIS, Appellant, v. Albert E. LOY, Appellee.

No. 72-2402.

United States Court of Appeals, Fourth Circuit.

Argued May 9, 1973.

Decided January 22, 1974.

Thomas J. Harrigan, Arlington, Va. (Harrigan, Morris & Artz, Arlington, Va., on brief), for appellant.

Richard H. Lewis, Fairfax, Va. (Brault, Lewis, Geschickter & Palmer, Fairfax, Va., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and BUTZNER and RUSSELL, Circuit Judges.

BUTZNER, Circuit Judge:

Paris Reizakis appeals from an order dismissing his action against Albert E. Loy with prejudice.¹ Because the circumstances disclosed by this record do not justify the sanction imposed by the district court, we reverse.

Reizakis, alleging that he was a citizen of Canada, instituted this diversity action on April 16, 1971,² and in due course, Loy filed his answer. On December 16, 1971, Loy moved to dismiss the action on the ground that Reizakis had not answered interrogatories propounded five months earlier. The same day, Reizakis' counsel filed the answers, and the motion to dismiss was promptly withdrawn. Attorneys for both parties met with the court for the initial pretrial conference on December 17. At the request of Reizakis' counsel for a continuance of the conference, the district court rescheduled it for June 15, 1972 and directed that all discovery should be completed by February 1, 1972. On December 20, Loy gave notice to take Reizakis' deposition on January 25, and the deposition was filed March 2, 1972.

During these proceedings, Reizakis was represented by Peter A. Chaconas, of Washington, D. C., and Rudolph N. D'Agaris, of Maryland. Because neither were residents of Virginia with offices in the state, they were prohibited by a local rule of the district court from representing Reizakis without being associated with a Virginia attorney who had been admitted to practice in the court. Reizakis' Virginia attorney was Robert C. Watson. In the latter part of May, Watson, with Reizakis' consent, prepared an order to permit D'Agaris and him to withdraw. At the June pretrial conference, the court denied withdrawal until Watson was replaced by another Virginia lawyer and set the case for trial on Tuesday, September 12, 1972. Notwithstanding the denial of his motion to withdraw, Watson took the position that Reizakis had released him in May. He notified Reizakis of the trial date, but apparently neither he nor D'Agaris did anything further to prepare for trial.³

Sometime after the middle of August, Chaconas satisfied himself that the doctors who were to be Reizakis' witnesses would be available for the September trial. However, he did not obtain subpoenas for them. In the meantime, acting on behalf of Reizakis, he made several unsuccessful attempts to engage local counsel to replace Watson, but not until the first week of September did he succeed in obtaining a new Virginia associate.

On Thursday, September 7, five days before the scheduled trial, Thomas J. Harrigan, the replacement for Watson, and Richard H. Lewis, attorney for Loy appeared before the district court. They were accompanied by Watson who moved for a continuance of the trial so that Harrigan could have a reasonable time to prepare the case. The record does not indicate that Lewis offered any objection at this time. The court, however, denied the continuance, and Harrigan declined to enter a formal appearance because he believed he could not prepare adequately in the short time remaining. Harrigan promptly told Chaconas of the court's ruling, and although he had not entered a formal appearance, he nevertheless said that if the witnesses were available he would attempt to prepare the case. The next day, Friday, Chaconas told Harrigan that the doctors were available and that the case was ready. Harrigan studied the file over the week end, but when he telephoned the doctors on Monday, September 11, he learned that none of them could be present. By this time it was too late to subpoena them.

On the day of trial, Tuesday, September 12, Reizakis, Chaconas, Watson, D'Agaris, and Harrigan appeared in the district court. Chaconas, citing the absence of the doctors, moved for a continuance. Lewis, noting the inconvenience to Loy's witnesses, objected, and the court denied the motion. Chaconas then stated that the witnesses who were to testify on the issue of liability were present, and he moved to have the trial proceed on this issue and for a continuance of the damage issue only. Again, Lewis objected, and the court denied the motion. Chaconas then conceded that in view of the court's rulings it was impossible to proceed, and Lewis moved to dismiss the case for lack of prosecution. The court granted the motion and assessed the costs, including jury fees, mileage, and per diem against Reizakis. It then granted Watson's and D'Agaris' motion to withdraw.

A district court unquestionably has authority to grant a motion to dismiss for want of prosecution. Fed. R.Civ.P. 41(b). Indeed, as the Supreme Court held in Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), the trial court can take such action on its own motion. But courts interpreting the rule uniformly hold that it cannot be automatically or mechanically applied. Against the power to prevent delays must be weighed the sound public policy of deciding cases on their merits. See generally, Wright & Miller, Federal Practice and Procedure: Civil §§ 2369, 2370 (1971). Consequently, dismissal "must be tempered by a careful exercise of judicial discretion." Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967). While the propriety of dismissal ultimately turns on the facts of each case, criteria for judging whether the discretion of the trial court has been soundly exercised have been stated frequently. Rightfully, courts are reluctant to punish a client for the behavior of his lawyer. Edsall v. Penn Central Transportation Co., 479 F.2d 33, 35 (6th Cir. 1973). Therefore, in situations where a party is not responsible for the fault of his attorney, dismissal may be invoked only in extreme circumstances. Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970). Indeed, it has been observed that "the decided cases, while noting that dismissal is a discretionary matter, have generally permitted it only in the face of a clear record of delay or contumacious conduct by the plaintiff." Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir.1967). Appellate courts frequently have found abuse of discretion when trial courts failed to apply sanctions less severe than dismissal. See e. g., Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir. 1971); Flaksa v. Little River Marine Construction Co., 389 F.2d 885, 887 (5th Cir. 1968); Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146, 148 (3d Cir. 1968). And generally 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. Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1965).

It is in the light of the foregoing interpretation of Rule 41(b) that we must consider the circumstances of this case. The facts do not depict "a drawn out history" of "deliberately proceeding in dilatory fashion," as in Link v. Wabash R.R., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962). Moreover, Reizakis was not shown to be personally responsible for any of the incidents that delayed the case. While he knew that Watson wished to withdraw, he not unreasonably expected his principal counsel, Chaconas, to arrange for a local associate to comply with the rules. Furthermore, he apparently knew nothing about the failure to subpoena the doctors. To the contrary, it appears that he advanced money for witness fees and expected the case to be tried as scheduled. His attorneys were unable to proceed either because they failed to give the doctors adequate notice, or because Chaconas relied on his understanding that the doctors would be available without taking the precaution of subpoenaing them. In selecting an appropriate sanction for this dereliction, the district court did not consider measures less drastic than dismissal, such as imposing a fine or costs against Reizakis' attorneys. Finally, it does not appear that a continuance would have prejudiced Loy's defense. Of course, Loy, his witnesses, and his attorney would have been subjected to extra expenses and inconvenience if the case had been rescheduled, but monetary sanctions were available to rectify this harm as well. Moreover, inconvenience to some of the witnesses could have been prevented by trying the issue of liability as suggested by Reizakis' counsel.

The District Court for the Eastern District of Virginia is exceptionally busy, and the demands on the time of its judges and its jurors are great. Its judges properly are diligent in bringing litigation to trial without delay. But the interpretation of Rule 41(b) found in the well reasoned cases cited above bars dismissal for the circumstances disclosed by this record. Available to the district court were lesser sanctions sufficient to assure prompt disposition of this case and to discourage similar conduct in the future. Additionally, the liability issue could have been tried, and if Reizakis lost, the case would have ended without further delay.

The judgment is reversed, and this case is remanded with directions that it be reinstated.

BOREMAN, Senior Circuit Judge (dissenting):

With all due regard and respect for the opinion of my brothers, somewhat reluctantly I state this note of disagreement. Naturally, our sympathies are with any litigant who suddenly discovers that the results of his counsel's inattention, indifference, lack of diligence, or negligence, are visited upon him in terms of the dismissal of his case and the loss of an opportunity to be compensated in damages for personal...