Shea v. Donohoe Const. Co., Inc.
| Decision Date | 18 July 1986 |
| Docket Number | No. 85-5931,85-5931 |
| Citation | 795 F.2d 1071,254 U.S.App.D.C. 175 |
| Parties | , 55 USLW 2082, 6 Fed.R.Serv.3d 301 William C. SHEA, Appellant, v. DONOHOE CONSTRUCTION CO., INC. District of Columbia Circuit |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Karl N. Marshall, Washington, D.C., for appellant.
D'Ana E. Johnson, with whom James C. Gregg, Washington, D.C., was on brief, for appellee.
Before WALD and BUCKLEY, Circuit Judges, and EDWARD D. RE, * Chief Judge, United States Court of International Trade.
Opinion for the Court filed by Circuit Judge WALD.
William C. Shea appeals from the District Court's order denying his Rule 60(b) motion to reinstate his cause of action which the District Court had earlier dismissed because Shea's attorneys had failed to attend three separate status calls within a three week period. On the record before us it appears that any neglect in this case is attributable only to Shea's Boston counsel and the three local counsel that the Boston counsel successively employed; that there is no reason to believe that Shea was aware of the neglect; that the defendant was not so prejudiced by the attorneys' absences that dismissal was the only available alternative; and that the prejudice to the court system and the need to deter future misconduct could have been dealt with through measures less drastic than outright dismissal. Under these circumstances, we hold that the District Court abused its discretion in refusing to reinstate Shea's cause of action, without having first explored less drastic sanctions such as imposing costs or taking other appropriate action against the attorneys at fault.
On September 13, 1981, while working as a glazier at a construction site in Washington, D.C., William Shea, a resident of Boston, Massachusetts, was struck on the side of his head with a plank being carried by an employee of Donohoe Construction Co., Inc. ("Donohoe"). As a result of the blow, Shea fell 10 to 15 feet through an escalator opening, landed on a solid steel plate below, and then continued to roll down the steel ribs of the escalator for another 25 feet. Shea suffered permanent injury to his neck, shoulder, and lower back. 1
In order to bring a tort action against Donohoe, Shea's Boston attorney, Vincent A. Murray, Jr., contacted a local Washington, D.C. attorney, Paul Maloof. On September 13, 1984, the last day to file suit under the applicable statute of limitations, Maloof filed a tort action in the United States District Court for the District of Columbia. Over the next six months, discovery proceeded without controversy.
On March 29, 1985, Shea, together with his attorney, Murray, travelled to Washington, D.C., so that Shea could be deposed by defendant at its counsel's office. At the close of the deposition, both counsel agreed to seek an extension of the March 31, 1985, discovery cutoff date that the court had set out in its Scheduling Order. See Affidavit of Vincent A. Murray, Jr., Esq., Joint Appendix ("J.A.") at 2-3. 2
Because local counsel Maloof was frequently in Brazil, where he maintained an office, Murray set out to secure the services of a different local counsel. Id. at 3. While in Washington on March 29 for the Shea deposition, Murray met with attorney Eric May, with whom he had previously discussed representing Shea. Murray requested May to appear at a scheduled April 12 status call in order to request the discovery extension. One or two days before the status call, however, May telephoned Murray and told him that he could not take the case and accordingly would not be in attendance at the status call. Id. On April 11, Murray explained his predicament to defendant's counsel and asked defendant's counsel to indicate to the District Court what had transpired and to request the discovery extension that had been jointly agreed upon. Defendant's counsel agreed to communicate these requests to the court. Id.
There is no transcript of the April 12 status call, and it is thus unclear whether or not defendant's counsel explained to the court why plaintiff's counsel was absent or that they had jointly agreed to an extension. It is clear, however, that the District Court scheduled a new status call for April 24. The District Court sent notice of the new status call to local counsel Maloof, who was still counsel of record. The evidence reveals, however, that Maloof's office had a practice of sending the items received from the District Court to Maloof in Brazil. Maloof would then forward them to Murray in Boston. Because of this delay, Murray never learned of the second status call, and thus no one represented plaintiff at it.
The District Court, of course, had no knowledge of these circumstances and was justifiably concerned when plaintiff's counsel failed to attend yet a second status call. Thus, on April 25, 1985, the District Court scheduled another status call for May 3, 1985, at 9:00 a.m., and instructed the plaintiff's counsel to be "prepared to show cause why this case should not be dismissed for failure to appear at previous status conferences and for failure to prosecute this case." Order, Civil Action No. 84-2865, slip op. at 2 (D.D.C. April 25, 1985). Significantly, this order was sent to both Murray and Maloof.
On May 1, 1985, the day after he received the order regarding the May 3 status call, Murray obtained local counsel who agreed to take the case and attend future status calls. During the next two days, Murray spoke with the new local counsel, Phyllis Outlaw, on approximately four separate occasions in order to brief her and to ensure her attendance at the status call. J.A. at 4. On the day before the status call, Murray telephoned the District Judge's courtroom clerk to inquire whether his personal attendance was necessary at the status call. After being informed that the appearance of local counsel Outlaw would suffice, Murray cancelled airplane reservations that he had made to be in attendance at the status call. Id. Finally, Murray called Outlaw at 10:00 on the evening prior to the status call to review the facts once again and to remind her of the importance of her attending the status call the next morning. Id. at 5.
On the day of the status call, Murray received a message in his office from Outlaw that she had arrived approximately 20 minutes late for the status call and that the District Court had moved on to the next matter. Murray called the District Court to communicate his concern over the happenings of the morning, but was informed that an order had been issued dismissing the case. In that order, the District Court found
that an order of dismissal is a necessary and appropriate sanction in the present case, not only because of plaintiff's blatant disregard of this Court's orders, ... but as a general deterrent to future neglect of pending litigation.... It is unfortunate that a potentially meritorious claim may fail because of the inattention of counsel but, in this as in many other contexts, a client chooses an attorney at his own peril.
Order, Civil Action No. 84-2865, slip op. at 2 . The court concluded that the "record of multiple acts of noncompliance coupled with the disregard of the show cause order cannot be deemed a mere oversight." Id. at 3.
Subsequent to the order, Murray finally succeeded in securing a local counsel who would diligently represent Mr. Shea. The new counsel filed a Rule 60(b) motion with the District Court, explaining all of the circumstances set out above, attaching an affidavit from Murray and correspondence from Maloof, and asking for reinstatement of the cause of action. The District Court denied plaintiff's motion, finding that the only excuse offered was "the negligence or untimeliness of one or more counsel." Memorandum Opinion and Order, Civil Action No. 84-2865, slip op. at 3 (D.D.C. Aug. 2, 1985) (emphasis added). 3 Shea now appeals the District Court's refusal to reinstate his action.
For many years this circuit has struggled with the appropriate judicial response to attorney misconduct or dereliction of duty. At different times and in different cases, we have discussed widely differing considerations. While our holdings may not be technically inconsistent, district courts have understandably found meaningful guidance lacking. Our decision today is designed to review and put into perspective some basic principles that have in the past governed and will in the future govern our review of dismissals based upon attorneys' misconduct or neglect.
Our past decisions reveal three basic justifications for dismissing an action because of counsel's misconduct. First, dismissal is necessary at times because the other party in the case has been so prejudiced by the misconduct that it would be unfair to require him to proceed further in the case. Second, dismissal may be appropriate where resort to any less drastic sanctions would not mitigate the severe burden that the misconduct has placed on the judicial system. Finally, dismissal may, on certain occasions, serve as an ultimate sanction, aimed at punishing abuses of the system and deterring future misconduct. Because the factors to be addressed by the trial judge in considering the propriety of dismissal differ depending on which of these purposes is to be served, we will discuss them separately.
When the misconduct of one party's attorney prejudices the other party so severely as to make it unfair to require the other party to proceed with the case, dismissal of the case, or any portion thereof, has been held appropriate. For example, in Cherry v. Brown-Frazier-Whitney, 548 F.2d 965 (D.C.Cir.1976), this court affirmed the District Court's dismissal of an action where the plaintiffs had failed to prosecute the case for nearly two years and "there was positive indication that the delay had operated prejudicially" to the defendants. Id. at...
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