Chuck “C.O.” BESHEAR, Plaintiff-Appellant, v. Clara WEINZAPFEL and Esther Weinzapfel, d/b/a Weinzapfel Tavern, Defendants-Appellees
No. 71-1657
United States Court of Appeals, Seventh Circuit
Argued Oct. 27, 1972. Decided Feb. 20, 1973.
IV. ATTORNEY‘S FEES
Appellant‘s contention that equitable principles require that the government pay its attorney‘s fees is utterly frivolous. The government‘s suit was neither harassing nor unmeritorious. Equity does not require that the District Court grant attorney‘s fees to a party found to have violated a federal statute by blockbusting in a racially transitional area.15
V. CONCLUSION
The anti-blockbusting statute,
Affirmed.
Theodore Lockyear, Evansville, Ind., for plaintiff-appellant.
Fred P. Bamberger, Evansville, Ind., for defendants-appellees.
Before HASTINGS, Senior Circuit Judge, and FAIRCHILD and PELL, Circuit Judges.
Plaintiff Beshear, a patron of defendants’ tavern, while exiting therefrom, allegedly fell and suffered injuries. His diversity suit for damages was dismissed by the district court for failure to prosecute. Beshear‘s motion to reopen the case under
On March 8, 1971, the case was assigned for a pretrial conference for April 30, 1971. On March 12, plaintiff‘s attorney petitioned for authority to withdraw his appearance. Attached to the petition was a copy of a letter dated January 12, 1971, sent by certified mail to plaintiff advising him that the attorney was going to withdraw his appearance “within a period of ten days from the date of this letter.” The letter pointed out that repeated attempts had been made to find witnesses that Beshear had indicated had previously fallen at the accident site, that none of these had been reached, and that it had been found that some of them did not exist. Further, the letter reminded plaintiff that the attorney had suggested dismissing the claim, which Beshear had indicated he did not want to do, and therefore the attorney felt that he could not “proceed with the matter any further, and that if you want the case to continue, it would be well for you to obtain another attorney.”
The district court granted the attorney‘s petition to withdraw on April 6, 1971. A copy of the court‘s entry was sent to Beshear by certified mail. At the scheduled pretrial conference on April 30, 1971, Beshear did not appear either in person or by counsel and defendants filed their motion to dismiss because plaintiff had unreasonably failed to prosecute the action. The district court on the same day granted the motion and dismissed plaintiff‘s complaint with prejudice. A copy of the court‘s entry was sent to Beshear by certified mail. Return receipts for all of the certified mail mentioned hereinbefore were returned executed by an “agent” of Beshear and there is no claim he did not receive any of them. A copy of the motion to dismiss, to which was attached an attorney‘s affidavit detailing Beshear‘s derelictions in respect to prosecuting the suit, was also mailed to the plaintiff.
Thereafter the courthouse door was not darkened by Beshear, either per
On June 7, 1971, defendants filed a detailed memorandum containing argument and citing authorities in opposition to the motion for relief. On June 18, 1971, another firm of attorneys (#3) filed an appearance for Beshear. The record does not indicate that anything else was filed by the new firm other than the written appearance. On June 29, 1971, the district court denied the motion for relief. Notice of appeal was timely filed by the third set of attorneys as to the denial of the motion. Thereafter, another attorney (#4) also entered the fray and made the argument before this court. We are unable to say whether the arguments made to this court might have been persuasive to the district court. None of them was made, and the district court only had the bare factual bones contained in Beshear‘s affidavit, being that he had not known of the pretrial conference, that he had gotten an attorney sometime before the May 24th supposed trial date (although he had been aware since January that he might have to get another attorney and since early April that he would in fact have to do so), and that the attorney was prepared to appear on the 24th, hopefully to secure a continuance.
At the time of filing the motion for relief, Beshear could in the alternative have launched a direct appeal from the dismissal. 9 Wright & Miller, Federal Practice and Procedure: Civil § 2376 (1971). In doing what he did here, it would appear that he followed what we deem ordinarily to be the better practice of bringing to the attention of the trial court at some appropriate time before appeal the errors which it is claimed have been committed. The district court already familiar with the case is thereby given an opportunity to correct any mistakes it might have made and the parties will avoid the expenses and delays involved in appeals. Unfortunately, while Beshear took a step in the right direction, the travel toward the point of being of assistance to the court in determining whether it had committed error was so slight as to be of minimal consequence.
Irrespective of whether there had been a direct appeal from the dismissal or an appeal from the denial of the
The leading case involving a dismissal for want of prosecution following failure of attendance at a pretrial conference is Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). The Supreme Court expressly refrained from deciding whether unexplained absence from a pretrial conference would alone justify a dismissal but held such failure in the context of other evidence of similar purport could be considered as justifying a dismissal.
At the time the district court dismissed the action, there was a context of facts, which we have set forth hereinbefore, reflecting a lack of prosecutive intent which went beyond the mere failure to attend the pretrial conference. On the basis of contextual facts known or apparent to the district court at the time of dismissal, we cannot say there was a clear abuse of discretion. The question remains, however, whether the facts adduced on the motion for relief when brought to the attention of the court were of a sufficiency to make the denial of the motion an abuse of discretion.
To a considerable extent the factual situation as it appeared to the district court, which we have recited at the beginning of this opinion, speaks for itself in justification of the rulings of the district court. No point is served in repeating each of the salient factors. Nevertheless, we do note certain particularly significant aspects. Particularly salient is the fact that the court was aware in January that counsel either was going to dismiss or in the absence of consent from the client was going to withdraw. In that context, a pretrial conference was set for the end of April. Further, on March 12, 1971, the attorney did file his petition to withdraw with notice to Beshear. This petition was granted early in April with notice to Beshear. At the end of that month there was no indication that Beshear, who had had ample time within which to secure substitute counsel, had not determined to abandon his case notwithstanding his apparent disinclination to go along with his attorney‘s recommendation to dismiss.
We also note that the district court may have had doubts about the good faith of the
While the wide discretion of a district court in passing upon a motion under
The record reflects a complete absence of any regard for a salutary rule that a
In the present case, not only had the plaintiff not alleged sufficient facts to constitute a meritorious claim, but, in fact, the district judge had before him the record of the pretrial conference at which Beshear‘s attorney had stated that he intended to withdraw if Beshear did not dismiss the complaint because he did not feel it to be a meritorious claim.
We do not intend to suggest that the party moving for relief under
Mr. Justice Black in dissenting in Link v. Wabash Railroad Co., supra, 370 U.S. at 648-649, adverts to the proposition that the purpose of ending congestion in the courts should be no basis for dismissing cases without notice. While not unmindful of the ever increasing load of litigation in all courts, both federal and state, we agree that courts have been created for the very purpose of trying cases on their merits and that dismissals with prejudice and default judgments should not be utilized as a handy instrument for lessening the case load burden. We do not rest our decision on that basis but we do find Mr. Justice Black‘s dissent illuminating on one of the principal prem
“Where a case has so little merit that it is not being prosecuted, a trial court can of course properly dispose of it under fair constitutional procedures. There is not one fact in this record, however, from which an inference can be drawn that the case of Link against the Wabash Railroad Company is such a case.” 370 U.S. at 648. (Emphasis added.)
In the case before us, at the time the trial judge ruled on the motion to dismiss and the subsequent motion for relief, there was nothing in the record to cause him to believe there was any merit. Indeed, the only inference was to the contrary. The case before us remains unchanged in this regard.
Mr. Justice Black also observed (370 U.S. at 649) that the court congestion would not be alleviated on final analysis because the recipient of the unjust ruling would resort to appellate remedies. While this may be true on the subject of court congestion as a raison d‘etre for dismissal, it has no application here where the contention of merit has never been advanced. Indeed, it is our opinion that it is essential that it have been advanced to the district court as a part of the
Beshear contends that
Beshear also contends that the dismissal was in violation of the district court‘s own Rule 7 which provides for 15 days’ opportunity to respond to a motion to dismiss and that the district court was estopped to dismiss because Beshear was aware that the trial was set for May 24, 1971. We find no merit in either contention. The issue regarding the local court notice rule was never presented to the district court and must be deemed to have been effectively waived. We do not know what significance the district court might have attached to this contention because it was not brought to its attention. We do note, however, that this is not a case of a motion to dismiss because of a failure of the complaint to state a claim upon which relief might be granted, as certainly there the court should hear the opposition grounds. The Supreme Court made it clear in Link v. Wabash Railroad Co. supra, that absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing does not necessarily render such a dismissal void. All of the circumstances must be considered, and the court has the inherent power to dismiss sua sponte for lack of prosecution. 370 U.S. at 630 and 632.
The matter of estoppel perhaps could be inferred from the
It had been made clear to the district court that Beshear‘s first counsel had no confidence in the merits of the case. Successive counsel have put forward no contrary notion. Nevertheless it is now contended, inter alia, on appeal that the district court because of the attorney-client privilege should not have considered the letter which the attorney wrote Beshear expressing his opinion of the case, a copy of the letter having been attached to the motion to withdraw. We have no way of knowing that the district court did give any consideration to this letter. In any event, the attorney two months before the motion to dismiss was filed had announced in open court his intention to withdraw if the client did not authorize dismissal. Also this matter was first presented in this litigation in Beshear‘s reply brief and we do not find it to be a basis for reversal.
Trial courts may on occasion have a feeling that upon appellate review of their exercise of discretion homage is paid to the fact that reversal should occur only where it is clear that abuse of discretion has existed and thereafter the matter is decided upon the basis of how the reviewing judges would have ruled if they had been considering the case in the first place. We reject this ab initio concept if it does exist and adopt the standards collected in Particle Data Laboratories, Inc. v. Coulter Electronics, Inc., 420 F.2d 1174, 1178 (7th Cir. 1969):
“‘Generally, an appellate court may set aside a trial court‘s exercise of discretion only if the exercise of such discretion could be said to be arbitrary.’ Sears, Roebuck and Co. v. American Mutual Liability Insurance Co., 7 Cir., 372 F.2d 435, 438 (1967). ‘[D]iscretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ Delno v. Market St. Ry. Co., 9 Cir., 124 F.2d 965, 967 (1942).”
Having considered this appeal in the light of these standards, we are satisfied that the district court did not abuse its discretion and we therefore affirm the judgment of dismissal.
Affirmed.
FAIRCHILD, Circuit Judge (concurring).
Plaintiff‘s counsel had been permitted to withdraw April 6 and plaintiff received a copy of the order. The pretrial conference for April 30 had previously been set, but there is no suggestion that plaintiff was ever notified. Under the circumstances a presumption that his counsel told him is unreasonable. Dismissal for failure to appear without notice of his duty to do so seems to me an abuse of discretion. I could agree, however, that because of the lack of diligence and other deficiencies in the motion to reinstate, the denial of that motion was not an abuse of discretion.
PELL
Circuit Judge
Joseph P. MOODY et al., Appellants, v. ALBEMARLE PAPER COMPANY, a Virginia corporation et al., Appellees. Equal Employment Opportunity Commission, Amicus Curiae.
No. 72-1267
United States Court of Appeals, Fourth Circuit
Argued Oct. 3, 1972. Decided Feb. 20, 1973.