Von Poppenheim v. Portland Boxing & Wrestling Com'n

• Decision Date: 09 August 1971
• Docket Number: No. 23846.,23846.
• Citation: 442 F.2d 1047
• Parties: Kurt VON POPPENHEIM, Appellant, v. PORTLAND BOXING & WRESTLING COMMISSION et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

442 F.2d 1047 (1971)

Kurt VON POPPENHEIM, Appellant, v. PORTLAND BOXING & WRESTLING COMMISSION et al., Appellees.

No. 23846.

United States Court of Appeals, Ninth Circuit.

May 17, 1971.

Rehearing Denied August 9, 1971.

Adelbert G. Clostermann (argued), Portland, Or., for appellant.

Emory Crofoot (argued), Deputy City Atty., Marion Rushing, City Atty., Portland, Or., John R. Gilbertson (argued), Miles Sweeney, of White, Sutherland & Gilbertson, Portland, Or., Richard Muller (argued), Portland, Or., for appellees.

Before HAMLEY and WRIGHT, Circuit Judges, and LINDBERG, District Judge.

LINDBERG, District Judge:

This appeal concerns that portion of Rule 41(b) of the Federal Rules of Civil Procedure that authorizes the court to dismiss a plaintiff's action with prejudice for his failure to comply with an order of the court. The appeal is properly before us pursuant to 28 U.S.C. § 1291.

Plaintiff Kurt von Poppenheim is a professional wrestler from Portland, Oregon. Defendants are the Portland Boxing & Wrestling Commission, the individual members of the Commission, the National Wrestling Alliance, Don Owen, Don Owen Sports, Inc., Mount Hood Radio & Television Broadcasting Corporation, and the National Wrestling Association of America. The Commission is a statutory body which has jurisdiction over all boxing and wrestling matches conducted within its territory. ORS 463.110, 463.120. One of its functions is the appointing of official wrestling matchmakers. ORS 463.140. Defendant Don Owen is the only wrestling matchmaker the Commission has appointed in the Portland area. Defendant National Wrestling Alliance is a national association of wrestling promoters; whereas the National Wrestling Association of America is primarily an association of wrestling commissioners. Defendant Mount Hood Broadcasting owns and operates a Portland television station which periodically has televised wrestling programs promoted by Don Owen.

In September of 1963 von Poppenheim applied to the Commission for a wrestling matchmaker's license in the Portland area. The Commission eventually denied the application on the stated basis that "the issuance of a second wrestling matchmaker's license at this time would not be in the best interest of wrestling in the Portland area."

Plaintiff promptly filed suit against the Commission in the Circuit Court of the State of Oregon, alleging that the Commission's action was arbitrary and capricious and accomplished an "unlawful monopoly in commercial licensed professional wrestling." He sought a mandatory injunction to compel the Commission to issue him a license. The Oregon Circuit Court dismissed plaintiff's action on the pleadings after considering an original and two amended complaints. On appeal, the Oregon Supreme Court affirmed the dismissal.¹ 241 Or. 603, 407 P.2d 853 (1965).

Two months later von Poppenheim initiated the present action in the Federal District Court for the District of Oregon. The thrust of his complaint was that the members of the Commission had some time in the past entered into a conspiracy and combination with the other defendants "to restrain trade and commerce among the several states in the business of professional wrestling" in violation of federal antitrust provisions. It also alleged that the state statutes creating and empowering the commission to appoint matchmakers were, for various reasons, unconstitutional. Plaintiff sought treble damages, a declaration that the state statutes were unconstitutional, an injunction preventing the enforcement of these statutes, and an injunction preventing defendants from "interfering in any way with plaintiff in his occupation of wrestling matchmaker and promoter in the Portland area."

Approximately fourteen months after the action was originally filed, the district judge to whom the case was assigned requested plaintiff to submit a detailed pretrial statement to the court in order to clarify the issues involved in the case. Nearly six months after the statement was due, but not forthcoming, defendants moved for a dismissal under Rule 41(b). The court did not grant the motion, but gave plaintiff further time to submit a satisfactory statement. Plaintiff eventually submitted several statements, but the district judge held that they failed to comply with the requirements of his order. He then granted the defendants' motion to dismiss with prejudice. This appeal followed.

Insofar as it is applicable to this case, Rule 41(b) provides:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * * operates as an adjudication upon the merits.

Because a dismissal under Rule 41(b) is such a harsh remedy, and because such dismissals are frequently occasioned by inattention of counsel rather than by plaintiff's own wrongdoing, courts are rightfully reluctant to employ 41(b) sanctions for failure to comply with an order of the court. Industrial Buildings Materials, Inc. v. Interchemical Corporation, 437 F.2d 1336 (9th Cir. 1970); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Syracuse Broadcasting Corp. v. Newhouse, 271 F. 2d 910 (2d Cir. 1959). It is equally clear, however, that aggravated circumstances may make dismissal under 41(b) appropriate. Agnew v. Moody, 330 F.2d 868 (9th Cir.), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964); O'Brien v. Sinatra, 315 F.2d 637 (9th Cir. 1963). In those cases the district judge will be reversed only if he has abused his discretion in dismissing the action. Industrial Building Materials, Inc. v. Interchemical Corp., supra; Blake v. De Vilviss, 118 F.2d 346 (6th Cir. 1941); see Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Russell v. Cunningham, 233 F.2d 806 (9th Cir. 1956).

In the present action, the crux of the problem in the district court was plaintiff's continuing failure to advise defendants sufficiently of the basis of his claim or the facts upon which he was relying to enable them to prepare an appropriate defense. Plaintiff's complaint was prolix, confused and obscure. More important from the defendants' point of view, however, was plaintiff's subsequent inability or unwillingness to narrow the legal issues or set out with any degree of particularity the facts upon which he based the broad and conclusory statements of his complaint.² Defendants deposed and served interrogatories on plaintiff on several occasions. Plaintiffs responses to the critical portions of these discovery efforts were consistently unresponsive. They failed to narrow the scope of inquiry or form a satisfactory base from which defendants could proceed in the preparation of their defense.³

On April 24, 1967, approximately fourteen months after the action had been filed, plaintiff's counsel advised the district judge that plaintiff's preparation could be "wrapped up for the Court" within thirty to sixty days. The district judge then requested plaintiff to file a pretrial statement with the court within sixty days.

I want a statement of what the conspiracy or conspiracies consist, with specificity, I should add.

Secondly, the names of the witnesses who will give you information concerning the existence of a conspiracy.

And, thirdly, the testimony you believe these witnesses will give.

With reference to point number one, I think you should set out the parties to the conspiracy and the role which each of those parties played.

He also urged plaintiff's counsel to associate with someone who was more experienced with federal litigation, and in particular with antitrust litigation.

When plaintiff failed to prepare a pretrial statement within the sixty days, opposing counsel contacted plaintiff's attorney, reminded him of his duty to file a statement, and urged him to do so promptly. Plaintiff still did not prepare a statement; instead plaintiff's counsel prepared a letter containing information that vaguely followed the contours of the statement requested by the court and sent it to defendant's attorneys. No other efforts to comply with the court order were taken.

Six months passed. During this period defendants' counsel informally contacted plaintiff's attorney and expressed dissatisfaction with the quality of the information contained in the July letter. In December, 1967, defendants finally filed motions to have plaintiff's action dismissed for failure to comply with the court's order. When the motions were jointly argued on January 2, 1968, the district judge indicated that the July letter did not constitute compliance with the court's order because the information contained therein was conclusory, incomplete and otherwise obscure. He did not rule on the motion to dismiss, however, because of the possibility that plaintiff had been under the misimpression that the information contained in the letter was sufficient. The judge allowed plaintiff a period of several more weeks in which to file a statement containing the information originally requested. He made it clear, however, that he expected the statement to be "as full and as specific as possible" and that if the statement was inadequate he would "have no alternative but to dismiss the case."

On February 1, 1968, a statement was filed. In several respects this statement was more expansive than the July letter, but it too failed to set forth with specificity the requested information. Rather than dismiss the case, the district judge granted plaintiff a further extension of a month within which to submit a presentable document. He again urged plaintiff's counsel to associate with an experienced antitrust attorney.

Plaintiff's attorney again failed to heed the district judge's advice to associate with...