Russell v. Cunningham

• Decision Date: 21 May 1956
• Docket Number: No. 14942.,14942.
• Parties: William R. RUSSELL, Appellant, v. William CUNNINGHAM, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

233 F.2d 806 (1956)

William R. RUSSELL, Appellant, v. William CUNNINGHAM, Appellee.

No. 14942.

United States Court of Appeals Ninth Circuit.

May 21, 1956.

Philip R. Lawrence, San Francisco, Cal., for appellant.

E. R. Crain, Agana, Guam; Thomas M. Jenkins, San Francisco, Cal., for appellee.

Before DENMAN, Chief Judge, and POPE and CHAMBERS, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from the denial of a motion for either a continuance or a dismissal without prejudice¹ and the entry of a dismissal with prejudice for failure to prosecute² by the District Court of Guam. Appellant contends that this action constituted a "gross abuse of discretion" warranting reversal,³ that the rule of the District Court of Guam requiring a bond to secure costs from non-resident plaintiffs is void, and that the District Court could not award attorneys' fees as costs.

Appellant, a seaman employed by the Military Sea Transport Service (MSTS), lost an eye on Guam when he was on shore leave there. His complaint alleges that he was hit in the eye by appellee shattering his glasses. Most of the witnesses were seamen or officers of MSTS ships, and, like appellant, not residents of Guam. Appellant, who is married and has five children, has suffered a large loss of income as a result of the injury.

Actions have been filed both in Guam and California, putting appellee to the burden of preparing a defense in both places. The record indicates that appellee has had the financial burden of his attorneys' fees in both suits and the costs of several depositions.

The chronology leading up to the dismissal is as follows:

                  1954
                  April 26,   Complaint filed in Guam
                                alleging a battery and
                                asking $163,000 damages
                  May 15,     Answer filed denying the
                                battery and setting up
                                the defense of self-defense
                  May 22,     Six depositions taken
                                aboard appellant's ship
                                then anchored in the
                                Guam harbor
                  June 4,     Pre-trial order filed and
                                case set for trial August
                                2, 1954. The order included
                                a statement that
                                appellant and his companion
                                at the time the
                                blow was struck would
                                testify by deposition
                  July 13,    Stipulation that depositions
                                of appellant and
                                his companion might be
                                taken in San Francisco
                  July 30,    Case continued for resetting
                                for trial.
                  1955
                  March 11,   Case set for trial April 18,
                                1955.
                  April 13,   Appellant moved for a
                                three- or four-month
                                continuance, and filed an
                                affidavit describing his
                                financial problems and
                                the difficulties in taking
                                depositions of seamen
                                who were scattered
                                throughout the Pacific.
                  April 18,   Case continued until May
                                3, 1955, by agreement of
                                the parties.
                  April 19,   Case continued until August
                                15, 1955, by order
                                of the Court. The order
                                stated: "The plaintiff
                                will be expected to be
                                present at that time to
                  

                                testify in person or to
                                testify by deposition,
                                since this order assumes
                                at the present time that
                                further continuance will
                                not be granted."
                  August 10,  Appellant filed motion for
                                continuance of trial or a
                                dismissal without prejudice.
                  August 12,  Appellant's motion denied.
                  August 15,  The case was dismissed
                                with prejudice for a
                                failure of prosecution by
                                the appellant.
                

The District Court found the following facts justifying its action: The case had been at issue for fifteen months, and two continuances had already been granted at appellant's request. The plaintiff was warned in the order of April 19, 1955 that "the order assumes at the present time that further continuances would not be granted." The court further stated that:

"In a cablegram dated August 9, 1955 * * * local counsel was advised that the plaintiff was in a hospital with an eye infection * * * However, it appears that the plaintiff has not been in the hospital recently but that he has been in a financial position to have additional depositions taken in connection with the pending case."

The Court pointed out that the depositions which had been filed favored the defendant, and concluded, inter alia, that:

"2. The plaintiff has been given every reasonable opportunity to present his case to this court, either in person or by deposition, and the court is convinced that the plaintiff has no bona fide intention to do more than harass the defendant.

"3. That the defendant has been put to great expense in connection with his defense and has been prepared at all times to appear in court and present his defense."

I. The Sufficiency of the Evidence to Support the Findings of the District Court.

Appellant challenges the sufficiency of the evidence to support the District Court's findings of fact. Both parties in their briefs seek to bring before this Court facts outside the record made below, but such an attempt to enlarge the record must be rejected. This Court cannot conclude that the District Court abused its discretion when the explanation for long delay and inaction was not before it. On the other hand, the review of the evidence has been somewhat limited by the District Court which granted appellant the right to appeal in forma pauperis but refused to authorize the cost of preparing the transcript of the hearings on the motions on the ground that "the original record is adequate to present the question raised."

Appellant contends that the long delay has not been his fault since appellee has refused to cooperate in the taking of depositions. He further states that the warning in the order of April 19, 1955 that further continuances would not be granted should be read in connection with his affidavit filed with his request for that continuance. At that time appellant based his belief that he could be in Guam in three to four months on the assumption that he would be continuously employed. He contends that he was not continuously employed and failed to make enough money to pay either the costs of depositions or passage to Guam for the trial. However, neither of these explanations is in the record.

The District Court's finding that appellant in bad faith had asserted that he was in the hospital when in fact he was not again is challenged by material outside the record. The District Court's finding was based on a letter from the master of appellant's MSTS ship stating that appellant had worked from May 16, 1955 to August 10, 1955, and was on sick leave only six hours on August 9th. The cablegram claiming appellant was in the hospital was dated August 9, 1955. Appellant, in his brief, claims he went to the hospital on August 9th and was there when his attorney cabled Guam, and he returned to his ship which carried a Navy doctor on August 10th over the objections of his doctor because of his need for money: He contends that he did not have a chance to rebut the inference to be drawn from the letter since the hearing was set for 9:30 A.M. on August 15, 1955 and the letter was not received until after 1:05 P.M. However, there is no more in the record than the cablegram implying that appellant was hospitalized and the letter stating that this was not the case. There is nothing to show that the Guam counsel of appellant did not have full opportunity to rebut the implications of the letter from the MSTS master. From the material in the record, it cannot be said that the District Court's conclusion was "clearly erroneous." F.R.C.P. 52(a).

On the other hand, there is no evidence in the record to support the District Court's finding that appellant "has been in a financial position to have additional depositions taken" or that "plaintiff has no bona fide intention to do more than harass the defendant." Both of these conclusions apparently are based on the letter which indicated that the appellant had worked from May 16, 1955 to August 10, 1955. However, the appellant had worked only 59 days from April 11, 1954, the date of his injury, until May 16, 1955. He had a wife and five children who had been supported by San Francisco Welfare Authorities. He had been forced to borrow to put up a cost bond on appellee's demand since he was a non-resident of Guam. Assuming these findings are "clearly erroneous", we have the question whether there are other evidence-supported findings to warrant the dismissal.

The facts supported by...