States Steamship Company v. Philippine Air Lines

• Decision Date: 08 May 1970
• Docket Number: No. 23213.,23213.
• Citation: 426 F.2d 803
• Parties: STATES STEAMSHIP COMPANY, a corporation, Appellant, v. PHILIPPINE AIR LINES, a corporation, and Qantas Airways, a corporation, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

426 F.2d 803 (1970)

STATES STEAMSHIP COMPANY, a corporation, Appellant, v. PHILIPPINE AIR LINES, a corporation, and Qantas Airways, a corporation, Appellees.

No. 23213.

United States Court of Appeals, Ninth Circuit.

May 8, 1970.

D. Thomas McCune, of Lillick, McHose, Wheat, Adams & Charles, San Francisco, Cal., for appellant.

Quentin H. Smith, San Jose, Cal., John Edward Hurley, of McCutchen, Doyle, Brown & Emersen, San Francisco, Cal., for appellees.

Before MADDEN,^* Judge of the United States Court of Claims, and DUNIWAY and KILKENNY, Circuit Judges.

KILKENNY, Circuit Judge.

Presented for review is the single issue of whether the district judge abused his discretion in dismissing the complaint for lack of prosecution.

The complaint was filed on November 14, 1966, and was served on appellees November 30th. Philippine filed its answer on March 1, 1967, and Qantas answered on March 6th. Philippine served requests for admissions on March 17th, the responses to which were filed on April 20th. Qantas, on April 19th, served separate requests for admissions, to which responses were filed on May 26th. Qantas, on April 19th, served a group of interrogatories on appellant. On March 28, 1968, the court, sua sponte, entered an order to show cause why the action sould not be dismissed for lack of prosecution, or otherwise disposed of in conformity with Rule 11¹ of the court's local rules of practice. Seemingly, the order to show cause did not overly excite the appellant. It remained inactive until May 24, 1968, on which date it served interrogatories on Philippine. It did not respond to Qantas' interrogatories until May 27th, over thirteen months after they had been served. The following day, appellant, in attempted compliance with Rule 11, filed a certificate of counsel. The document outlined a brief history of the litigation, but gave no excuse for the delay other than that pre-trial discovery was still in progress and that counsel were unfamiliar with the degree of activity required of them in the prosecution of the case.

The judge, after a hearing on June 6, 1968, dismissed the action. On June 11th, appellant filed a motion to vacate the order of dismissal. To the motion was attached a certificate of counsel which set forth in full detail the pre-litigation history of appellant's claim against appellees. The certificate acknowledged the lack of activity as reflected by the record and then set forth discovery proceedings which were planned for the future. On June 25th, the judge considered the facts disclosed by the motion and certificate and denied the motion to vacate. Later, on July 2nd, appellant filed its second motion to vacate and attached to the motion another certificate of counsel. Again, the judge considered the material set forth in the motion and certificate and on July 19, 1968, again denied the motion to vacate. This appeal is prosecuted from the order of dismissal. We affirm.

That a court has power to dismiss an action for want of prosecution on its own motion, both under Rule 41 (b), F.R.Civ.P., or under its local rule, or even in the absence of such rules, is settled in this circuit. Pearson v. Dennison, 353 F.2d 24, 28 (9th Cir. 1965); Hicks v. Bekins Moving & Storage Co., 115 F.2d 406, 408-409 (9th Cir. 1940). Also in point is Link v. Wabash Ry. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The exercise of the power to dismiss is discretionary and will be reversed only for an abuse. Fitzsimmons v. Gilpin, 368 F.2d 561 (9th Cir. 1966). To justify the dismissal, it was not necessary for the court to find that there was a specific impairment of appellees' defenses, because the law presumes injury from unreasonable delay. Pearson v. Dennison, supra, 353 F.2d p. 28.

Whether the judge misused or abused his discretion, of necessity, depends upon the facts of each case. This court has never attempted to fix guidelines, although a good rule of thumb might be to follow Judge Magruder's oft-quoted phrase in In Re Josephson, 218...