*1 ZAROFF, Appellant, David
v. al., Appellees.
Talley et R. HOLMES 19983.
No. Appeals Court of States
United Circuit. Columbia District of
Argued March May Decided Washington, Price, D. M. Mr. Robert Rehearing Banc and for for En Petititon Miller, , appellant. Mr. Herman C. Rehearing Division before the ap- Washington, C., an D. also entered July Denied pearance Washington, George Windsor,
Mr. H. George C., E. C. Mr. D. with whom Hayes, Washington, C., on the D. brief, appellees. Burger Fahy,*
Before and McGow Judges. an, Circuit Judge: McGOWAN, Circuit appeal presents question This proper construction of Local 12 of the District Court. It chal lenges an court of sum award mary judgment appellees upon their a dismissal of an earlier contention that prejudice, suit was with and therefore judicata was res merits of pending The earlier dismissal action. was for in that want appellant counsel failed undis it is conference. Since puted kind attached that no blame failure, appellant and since expressly Local Rule does not state pursuant that dismissals to it are with requir we do not it as view District the result reached Court.
I
brought a civil ac-
In 1963
against appel-
District Court
10, 1964,
first
When,
April
his
on
lees.
immediately
withdrew, appellant
lawyer
who entered
retained
new
following day
with-
appearance the
months,
a certificate
filed
in two
however,
this,
long after
Not
readiness.
final criminal
suffered
the new
*
April 13,1967.
Fahy
Judge
became Senior Circuit
Circuit
*2
margin.1
courts,
Maryland
in the
and
set
forth
dismissal
in the
conviction
assuring
provision
ex
di-
is no
appears to have been
There
his attention
by
par-
Pre-trial
appellant’s
In
amination of this action
the
affairs.
from
verted
Judge,
(f)
paragraph
respond
as
of
ticular,
to a notice
inasmuch
he failed
that,
provides
hearing;
September
and,
unless coun
pre-trial
of
objections
pre-trial
entered
sel files written
within five
examiner
the
Ap- days,
signed by
dismissing
complaint.
Pre-trial
the
the order
the
an order
nothing
pre-trial
Ex
pellant
or
of the
Examiner
Assistant Pre-trial
knew
conference,
order.
“shall
order of the
dismissal
aminer
become
nor of the
the
practice
court.”
his counsel terminated his
When
finally
1965, appellant asked
in January,
The
of
12 on the
silence
Local Rule
pending
turned over
that all
matters be
question of
order of
whether a dismissal
appellant
appeared
to counsel who
the kind
prejudice
is
or
here involved with without
nothing
appeal. That
knew
this
sharp
is in
Lo-
contrast with
as above describ-
suit terminated
title,
cal Rule 13. That
the
rule bears
ed,
it until
nor did
find out about
he
“Dismissal For Failure To Prosecute.”
property
ad-
involved
saw the
Paragraph (a) provides
that where
foreclosure,
inquired of
and
vertised
comply
claimant fails for six
months
suit.
counsel as to the status of the
any requirement
relevant
to the
promptly filed a new action
Counsel
claim,
of
to take other
upon
founded
the same circumstances.
judg-
action to
his claim
move
towards
complaint
met
It
this
which was
was
ment, the Clerk shall enter an order that
judicata,
of
and the
with the defense
res
claim
the
stands “dismissed without
object of
reinstatement of which is the
prejudice.”
It
be that the District
appeal
the
us.
regarded
Court
dismissal for failure to
appear
pre-trial
special
at
as a
instance
II
prosecution,
of
for want of
and
dismissal
is the
Pre-trial
the District Court
the
of
intended
characterization
“without
subject
(b)
Paragraph
of Local Rule 12.
apply
prejudice”
contained in Rule 13
of that
is
default in
addressed to
explain
to it. This would
the omission
prescribed procedure;
observance of the
any
from
of
characterization whatsoever
part,
provides
in relevant
it
that
somewhat
Rule 12. And it does seem
plaintiff
“if counsel for
fails to
litigating
to take
anomalous that failure
at the time set for
be
contemplated
consequence
steps of Examiner,
fore
Ex
the Pre-trial
dismissal with-
Rule 13 should entail
It
aminer shall enter his default.”
was
lapse
out
whereas
response
to this
the claim.
forfeit
under Rule
should
Pre-trial Examiner entered the order of
notifying
provision made for
no
is
1. “Cause
Since
Dismissed For Want of Prosecu
counsel,
client,
of
from
as distinct
tion.
calling
assigned
being duly
confer-
of a
either
This cause
ap-
by
pretrial
day
September,
of a default
this 11th
ence or
pearing
of
it,
possible,
in the
having
it
is
at
and the same
been called
case,
of
response
having
present
order
an automatic
and no
thereto
been
by
by plaintiff,
Pre-trial
be entered
made
state-
and
Examiner,
(1)
having
become
will
order
ment
been filed.
be,
of the District
It
ordered
this
and
the order
is
cause
being brought
hereby
to the attention
the same
is dismissed for want
judge
made
prosecution.
(2) never be
thereof
remark-
WHEREFORE,
adjudged
worth
It is
to the client.
known
it
that,
action,
plaintiff
nothing by
conference
had the
[this]
take
Judge,
by
presided
go
day,
Pre-trial
over
been
that defendant
hence without
requires
nothing
him
held,
nothing
local rules
and recover of
prej-
dismiss,
plaintiff
or without
either with
his cost
defense.”
appear.
udice,
of counsel
it
nothing
clearly
than
any event,
end
much
to that
is, in
more
There
seeming does now.
this
before us to indicate that
design.3
disparity in
treatment
judgment appealed from is
The
present
The
are,
in their
condition
local rules
Reversed.
ambiguous;
are not
and we
best,
prepared,
the circumstances
*3
Judge
(concur-
BURGER, Circuit
against
case,
ambiguity
to resolve that
ring) :
41(b)
dis-
provides for
Fed.R.Civ.P.
41(b)
Appellees point
of
to Rule
prose-
“to
of an
missal
action
Procedure,
of
the Federal Rules
Civil
any
comply
these rules
or to
with
cute
which
want of
deals with
dismissals
that,
of court” and states
“Unless
order
provides that,
and
un
which
for dismissal other-
the court in its order
specifies
court
in its
less the
order,
otherwise
specifies,
under this sub-
wise
a dismissal
operate
a dismissal shall
as an ad
provided
not
dismissal
division and
judication
urged
on
merits.
the
It
is
* * * operates [sic]
for in
this
requires
that this
order of dismissal
the
adjudication upon
an
the merits.”
as
prejudicial
in this case to be
as
treated
“specify”
dismissal
For the court to
that
nature,
in
to
with
remitted
prejudice
make
it must
is to be
60(b)
against
Federal Rule
for relief
it
Neither
a clear statement to that effect.
neglect.
of
because
excusable
noteWe
nor
of
District Court
Local Rule 12
the
only
one-year
passing
the
limita
that
dismissing Appellant’s case
order
the
specified
period
60(b)
tion
run
of Rule
had
the dismissal was without
that
appellant learned of the dismissal of his
Judge
prejudice.
discussion
McGowan’s
regard
suit, but,
any event,
we do not
by
the District Court
demonstrates that
41(b)
dispositive
Rule
as
of the construc
affirmatively to
did not
its rule
decide
properly
placed upon
to
Local
41(b)
assumption of Rule
that
rebut the
governs
12.4
Rule
It is the
latter
prejudice;
hence
dismissals are with
instance;
it
this
and if
is to have the
requires that the
Rule 41
its terms
prejudice.
it,
speak
effect claimed for
it should
dismissal here was with
District
prejudice
struing
important,
writing
sanction of dismissal with
employ precise
District Court decides
This
tude in the
between
District Court
Rule
of the failure of counsel
Court was at some
thus,
guage
however,
the
tificate of
13 deals with the
Rule
It
Appellees
is
period following
it
it affords no clear-cut
83, Fed.R.Civ.P.
interesting
was not
latter
Rule
Court,
the two
embody
is concerned with a default
under
to be
readiness,
it seems
make
conference.
the Court
41(b)
fashioning
characterization
upholding
of
consciously differentiated
only partly
and unmistakable
this result.
the
course,
pre-readiness
pains
itself,
likely
whereas Local
the
note
this
point
in Link v.
that
a dismissal with
Justice
filing
But when the
solely
has
to make clear
that
that,
reason.
sign
prejudice
local
the
that
true;
appear
some
of a cer-
Supreme
it
appears,
that
because
Harlan,
drastic
period.
would
rules.
Rule
Wa
lati-
con
The
lan-
the
is
Ct.
And see
271-272
dice
court held
bash
said:
ference would
with
cumstances
tention,
other
part
plained
petitioner’s
ed
scheduled
that
evidenced
this
We need not
On
[*]
district court
because of a
to an abuse of
R.R.,
action for failure
prejudice
the District Court’s
this record we
in this case
evidence
Meeker v.
conference.
(10th
including
absence
1390,
it an abuse of
370 U.S.
[*]
only partly by
pretrial
that were
plaintiff.
alone
Cir.
if
of dilatoriness
to dismiss
failure to
decide whether
from a
the record showed
the earlier
Rizley,
L.Ed.2d 734
[*]
discretion.
relied
conference,
626,
to
1963),
justify
are unable to
brought
For
appear
to
633-634,
the
discretion
prosecute,
[*]
dismissal
appear
the
with
all
where
delays.
failure of
F.2d
at
to its
*
amount-
District
the
on the
(1962),
a
preju-
unex-
* *
82 S.
[*]
con-
at a
duly
cir-
say
at-
of
Rule 12 for
The
in Local
result as
However, I
the same
reach
Judge’s
ex-
District
review a
majority
seems clear
it
since
adequate sub-
aminer’s order is not an
Rule
is inconsistent
Local Rule 12
judicial
by pre
of dis-
exercise
41(b)
stitute
providing for dismissal
cretion, especially since review is avail-
invalid.1
is therefore
trial
and
examiners
only
objections
if
filed within
Rule
able
are
under
established that
It is well
days.
indicates,
par-
As
(b)
discre
five
ty
case
has
the District
who has missed a
tionary power
an action and
dismiss
likely
prejud
his omission
be unaware
or without
do so with
that he
consequences
however, provides
for more than
it
ice.2 Local
days.
five
plaintiff’s
counsel fails
that if
*4
pre-trial
a
a
before
at
examiner,
Irrespective
pre-
of the status of the
shall enter his
Examiner
“the
dismissal,
trial
I
examiner’s
would re-
3
time,
Rule
At the same
default.”
permit Appellant
mand to
to move under
ap
provides
to
if counsel fails
12
60(b) (6)
Fed.R.Civ.P.
to set aside the
Judge,
pear
a
judgment
justice.
in the interests of
“may
non-appear
act as
the case
Appellant’s
allegedly
missed
during
12
ance for final
trial.”4 Local Rule
conference because
require
thus seems to
fall in which the conference was sched-
action
éo'unsel fails to
be
when
“preoccupied”
prepar-
uled he was
with
leaving
examiner,
fore
no
petition
for certiorari
to the Su-
judgment
room
regard
the exercise of
preme
review of his own crimi-
justice
ac
to
drastic
nal conviction. While as a
a client
given
case. I see no warrant
consequences
must bear the
of the acts
41(h)
establishing
mechanical
Rule
attorney,
or omissions of his
whom he
substitutes for the exercise of discretion
chose,8 I do not
client
believe that a
contemplated by
Dis
or for the
anticipate
should be held to
that his coun-
Judge’s abdicating
responsi
trict
their
may
seeking
sel
be
durance vile or
bility
delegating
non-judicial off
it to a
to fend off that condition.
favored,6
icer.5 Trials on the merits are
I
permit Ap-
would remand
to
the case
appli
in the
the decisions involved
pellant to invoke the District Court’s dis-
41(b)
cation of
can determine
Rule
60(b)
(6)
cretion under Rule
and to
litigant
day
his
whether a
will have
demonstrate that he did not know
at-
his
nothing
court. There is
to indicate that
torney
proceed-
involved
criminal
41(b) permits
important
ings
mat
attorney
and that this
was so over-
delegated
non-judicial pers
consequences
ter to
whelmed
be
of his own
litigation
criminal
that he overlooked
onnel.7
prosecute,
from similar
1.
seems
á
Fed.R.Civ.P.
83.
suffer
infirmity
12
as Rule
since it makes
E.g.,
Co.,
2.
Link Wabash
v.
R.R.
370 U.
participation
for court
626, 633,
1386,
S.
82 S.Ct.
tions under Rule time, need not
in a but reasonable year.
made within one COM- FURNITURE YORK HOME
NEW PANY, Appellant,
v. AND SURETY
AETNA CASUALTY *5 al., Appellees. et COMPANY
No. 20361. Appeals
United States Court of District of Columbia Circuit.
Argued Feb. May
Decided Rehearing
Petition for En Banc Rehearing before the Division
Denied June Washington, Genn,
Mr. L. Edward C., D. lawyer
9. This of a ease the hazards inher- A convicted illustrates disbarment. appear- practice permitting felony suspend ent in the dubious should all his practice to continue in after a ances for clients. felony conviction, per grounds se