Vina v. HUB ELECTRIC COMPANY, 72-1599.

Decision Date29 June 1973
Docket NumberNo. 72-1599.,72-1599.
PartiesPablo VINA, Plaintiff-Appellant, v. HUB ELECTRIC COMPANY, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Allen R. Kamp, Chicago, Ill., for plaintiff-appellant.

Rody P. Biggert, Chicago, Ill., for defendant-appellee.

Before SWYGERT, Chief Judge, and MURRAH* and BARNES,** Senior Circuit Judges.

SWYGERT, Chief Judge.

Pablo Vina appeals from the decision of the district court dismissing his complaint for want of prosecution.

Vina filed a pro se complaint on November 26, 1971, against Hub Electric Company alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e et seq. The form complaint was apparently provided him by the district court clerk along with a form affidavit of indigency.1 In the form complaint, Vina asked that fees for bringing the suit be waived and that the district court appoint counsel to represent him. The district judge, on November 20, 1971, denied the requests for appointment of counsel and leave to proceed in forma pauperis. The following day, the clerk of the district court billed Vina for the cost of filing the complaint, and Vina paid the $15 filing fee. Although the complaint was filed and the filing fee paid, the clerk never issued summons. Rule 4(a) of the Federal Rules of Civil Procedure provides a clear mandate to the clerk to immediately issue a summons and deliver it to the marshal for service: "Upon the filing of the complaint the clerk shall forthwith issue a summons and deliver it for service to the marshal or to a person specially appointed to serve it." (emphasis added). There is no explanation in the record as to why the clerk did not follow the rule.

Vina thereafter obtained counsel through the Legal Aid Bureau who filed an amended complaint on March 27, 1972. Rule 15(a) of the Federal Rules of Civil Procedure allows for such an amended complaint to be filed without leave of court since no responsive pleading had yet been filed by Hub Electric, the defendant. Summons then issued and the amended complaint was served on April 28, 1972.2 Hub Electric did not file an answer, but on May 18, 1972, the last day for filing the answer, it filed a motion to dismiss for failure to obtain leave of court prior to filing the amended complaint and a motion for extension of time to answer or otherwise plead. At a hearing on May 18 on defendant's motion, Vina's counsel argued that he was an attorney employed by Legal Aid and that due to the number of poor persons seeing attorneys, there was a two to three month wait before a client could be interviewed by an attorney. The district judge, sua sponte, dismissed the cause for want of prosecution and treated Hub Electric's motions as moot. It is obvious from the judge's remarks that he considered the "case closed" as of November 30, 1971, when he denied leave to proceed on appeal in forma pauperis even though Vina later paid the filing fee. The judge also informed Vina's counsel that he should have specifically advised the court of the filing of his appearance and requested leave to file the amended complaint (although such leave was not required by Rule 15(a)).

The question on appeal is whether the district judge abused his discretion in dismissing Vina's case for want of prosecution. We hold that he did and accordingly reverse.

The district judge and Hub Electric both rely on Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), to support the proposition that a district court may dismiss a case for want of prosecution on its own motion. That case involved the dismissal of a six year old case which had previously been assigned two fixed trial dates which had been postponed. Plaintiff's counsel failed to attend a pretrial conference and later gave a lame excuse for his absence. The case before us is not of the same genre. The other cases cited by Hub Electric are similarly inapropos.3

Hub Electric argues that Vina should have...

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    ...deliver it to the marshal for service" without exception. Nichols v. Schubert, 499 F.2d 946, 947 (7th Cir. 1974); Vina v. Hub Electric Co., 480 F.2d 1139, 1140 (7th Cir. 1973). The Second Circuit has reversed several sua sponte dismissals of pro se complaints because a summons was not issue......
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