FRANK HASSETT, APPELLANT, v. ST. MARY‘S HOSPITAL ASS‘N, A NEVADA CORPORATION, AND DR. JAMES GREEAR, RESPONDENTS.
No. 6152
Supreme Court of Nevada
December 22, 1970
478 P.2d 154
Affirmed.
Goldwater, Taber, Hill and Mortimer and Julien G. Sourwine, both of Reno, for Respondents.
OPINION
By the Court, MOWBRAY, J.:
Appellant-plaintiff Frank Hassеtt has appealed from two orders of the district court dismissing his complaint for damages that he had filed against respondents-defendants Dr. James Greear and St. Mary‘s Hospital, both of Reno. The orders of dismissal were granted under the provisions of
“(e) Want of Prosecution. The court may in its discretion dismiss any action fоr want of prosecution on motion of the defendant and after due notice to the plaintiff, whenever plaintiff has failed for two years after action is filed to bring such action to trial....”
We affirm the orders of the district court dismissing the complaint against both respondents-defendants.
1. The Facts.
On March 3, 1965, Dr. James Greear removed a cataract from Frank Hassett‘s right eye. The operation was performed at St. Mary‘s Hospital in Reno. Hassett, after the operation and while recuperating in the Hospital, scratched his eye while attempting to relieve the itching resulting from the operation.
2. The Discretion of the District Judge.
Our role on this appeal is clear and well defined. We are simply to determine whether the district judge abused his discretion in granting the two 41(e) dismissal motions. This court, in Harris v. Harris, 65 Nev. 342, 350, 196 P.2d 402, 406 (1948), has laid down the standard that must govern our ruling in this appeal:
“... Unless it is made to appear that there has been a gross abuse of discretion on the part of the trial court in dismissing an action for lack of prosecution its decision will not be disturbed on appeal. Raine v. Ennor, ... 39 Nev. 365, 374, 158 P. 133; Inderbitzen v. Lane Hospital, 17 Cal.App.2d 103, 61 P.2d 514, 516; Cohn v. Rosenberg, 62 Cal.App.2d 140, 144 P.2d 399, 401; Allyne v. Murasky, ... 200 Cal. 661, 254 P. 564, 566; Brown v. Haymore, ... 43 Ariz. 466, 32 P.2d 1027, 1028; Hicks v. Bekins Moving & Storage Co., ... 9 Cir., 115 F.2d 406, 409; Pennsylvania Railroad Co. v. City of Pittsburgh, 335 Pa. 449, 6 A.2d 907, 911; Bancroft‘s Code Practice and Remedies, vol. 1, page 758, sec. 506, note 10; and 10-year supplement, vol. 2, pages 1581, 1582, note 12.”
See also Volpert v. Papagna, 85 Nev. 437, 456 P.2d 848 (1969), wherein this court last year, in a unanimous opinion, approved the Harris standard.
We have reviewed the record in this case, and it does support the rulings of the district judge. There was no abuse of discretion in granting the orders of dismissal. Indeed, a recent decision of our sister state, California, has hеld, under facts similar to the instant case, that the court‘s refusal to dismiss
“... In Black Bros. Co. v. Superior Court, supra [71 Cal.Rptr. 344 (1968)], the facts were very similar to the instant case. The complaint was filed on January 22, 1965, and service was not made on the defendant until January 9, 1968. That court decided that the trial court ‘... abused its discretion in denying motion of defendant to dismiss.’ In Anderson v. Nawa, 25 Cal.Apр. 151, 154, 143 P. 555, 556 [1914], the court held that: ‘... the unexplained and inexcusable failure to serve the summons within two years and ten months ... prima facie constituted good and sufficient grounds of dismissal.’ (See also Sprajc v. Scandinavian Airlines System, Inc., supra [50 Cal. Rptr. 181 (1966)], affirming a dismissal under section 583 where the complaint was filed on July 24, 1961, and service was nоt made on the defendant until August 13, 1963.[)]
“On the record before us we find there is an absence of any showing constituting good cause. Since the plaintiff in this case has not met his burden of showing ‘excusable delay,’ the trial court had a duty to dismiss the action upon the motion of petitioner. The failure to do so was an abuse of disсretion.
“Let the peremptory writ of mandate issue as prayed.”
The purpose of the 2-year discretionary power of dismissal is to compel reasonable diligence in the prosecution of an action after it has been commenced, so that the parties against whom it is brought will have an opportunity to properly present any defense that mаy be available at the time of the commencement of the action. It is the duty of the plaintiff to act, and to act with reasonable diligence, and a defendant need make no move until the law requires him to do so in response to the movements of the plaintiff at the various stages of the litigation.
It is the gеneral policy, as declared by the courts, that where a plaintiff exercises reasonable diligence in the prosecution of his action, the action shall be tried on the merits. This policy is counterbalanced, however, by the policy that, when a plaintiff fails to exercise reasonable diligеnce in the prosecution of his action, it may be dismissed by the district judge. When the
Hassett chose not to testify at either hearing on the 41(e) motions to dismiss. He submitted an affidavit that in essence charged four attorneys of the Washoe County Bar with whom he had discussed his case at one time or another with negligence in not prosecuting it.1 It is upon this naked assertion that the dissenting opinion blames members of the bar for failure to proceed diligently and would therefore reversе the orders of the district court granting the 41(e) motions to dismiss. We disagree with the reasoning of the dissenters. We must presume from the record that no one involved with Hassett‘s case believed it had merit. On March 2, 1967, one day before the statute of limitations would have run, it was given a case number by court order, under the practiсe in Washoe County. Next, a “complaint-letter” was sent, on September 6, 1967, to the Joint Screening Panel of the Washoe County Medical Society and the Washoe County Bar Association, charging Doctor Greear with professional negligence. A hearing was held by that board on December 12, 1967, and the board concluded that there was no possible basis for the negligence charge. It was at that hearing that Doctor Greear learned that a complaint in district court had been filed against him. He asked at that time, through his counsel, and several times thereafter that he be served. He never was served, and so, 4 years after the act of negligence allegedly occurred, and 2 years after the complaint had been filed against him, Doctor Greear filed his 41(e) motion to dismiss for want of prosecution.
Under the state of this record, it was within the permissible limits of the court‘s discretion to dismiss the action. Every man is entitled to his day in cоurt, but a law suit is not a unilateral affair. The rights of all parties to the litigation are involved. One who is charged with a complaint and against whom substantial damages are sought is entitled to a determination of those issues within a reasonable time. That is the purpose of 41(e). Likewise, it is categorically unfair and unrealistic to brand members of the bar as “recalcitrant” in this case on the naked charge that they failed to prosecute Hassett‘s case and that this resulted in Hassett‘s prejudice. To do so would mean that any attorney who reviews a case and fails to prosecute it is ipso facto guilty of malpractice. The inference apparent in this case is that not one but several members of the bar
Applying the standard this court announced in Harris, supra, and approved in Volpert, supra, we conclude that the district judge did not abuse his discretion in granting the 41(e) motions for dismissal. We therefore affirm the orders dismissing the complaint against the respondents.
COLLINS, C. J., and THOMPSON, J., concur.
ZENOFF, J., and BATJER, J., dissenting:
Wе do not dispute the generalization of the majority opinion that the trial court has a wide discretion to dismiss actions provided there is no abuse of that discretion. Harris v. Harris, 65 Nev. 342, 350, 196 P.2d 402 (1948), relied upon by the majority adds, however, that “The discretion to be exercised, under the circumstances of the particular case, is a legal discretion, to be exercised in conformity with the spirit of the law and in such a manner as to subserve and not to impede or defeat the ends of substantial justice.” That case goes on to say that “unless it is made to appear that there has been a gross abuse of discretion on the part of the trial сourt in dismissing
In the order of dismissal the trial court ruled that the delay was caused by the plaintiff himself and that no reasonable or valid excuse for the delay was shown by Hassett. The facts belie that ruling. Hassett was compelled to hire four attorneys before he could get any action. On February 28, 1967 he retained Attorney No. 1 who filed the complaint on March 2, 1967. From that point to February 1968 Hassett solicited this attorney with letters and phone calls sеeking information as to what was being done on his case. He gave his attorney money for depositions which were never taken. After considerable lapse of time Attorney No. 1 turned the case over to Attorney No. 2 who did nothing concerning it for several months and then advised Hassett that he must refuse the casе for certain personal reasons.
In June of 1968 Attorney No. 2 transferred the case to Attorney No. 3 without Hassett‘s knowledge. Late in 1968, getting no satisfaction from Attorney No. 3, Hassett retained Attorney No. 4. Together they drafted interrogatories which were not served because, as was explained to the trial court by Attorney No. 4, Hassett had to spend some time in New York for treatments for the ailment which is the basis for his lawsuit. Once the complaint was finally served upon the hospital it filed an answer. Then came the motion to dismiss.
Throughout the entire chronology it seems glaringly apparent that the client did all that he could be exрected to do but that he met the common failing of busy attorneys of procrastinating to the last degree. On very similar facts, the granting of a motion to dismiss was reversed in Johnson v. Westland Theatres, 187 P.2d 932 (Colo. 1947).
When a case has long been neglected and no adequate excuse is offered for the neglect, an inference arises that the case lacks merit, and a party whose case is dismissed for lack of prosecution and who seeks an appellate court to reverse the order of dismissal must see to it that the record contains something substantial which will justify a reversal. Northern Ill. Corp. v. Miller, 78 Nev. 213, 217, 370 P.2d 955. The “something substantial” in this case is the clearly errоneous conclusion by the trial court that the client was at fault. The fault lay solely in the hands of three dilatory attorneys who instead of rejecting the case at the outset misled the client who is not expected to know about such things as motions to dismiss and statutes of limitation.
To force a litigant to bring an action for malpractice against recalcitrant attorneys is burdensome and unfair. He should not have to suffer through the obstacles of а lawsuit against his lawyers. The lawyer‘s license carries the assurance that a litigant will not be prejudiced because of his lack of knowledge on how to proceed to enforce his rights. What he seeks is his day in court and if he does not get it, the reputation of the courts and bar is severely and unnecessarily dаmaged.
We dissent.