*1 (1969) (Mr. Brennan, statutory complex elec Ed.2d 214 Justice state between dissenting). developing federal scheme and the tion rights. political v. Briscoe See law any question of Aside from supra, Kusper, at 1053-1054. mootness, deter we do not here which abstractly as to rule do not We choose mine, 6- fact that 6-35 and the bald §§ have violated such defendants whether grant anticipatory plaintiffs re rights, plaintiffs un where federal complaint sought by their amended lief that con likelihood to show able justiciable controversy leaves remain no repeated. complained ever be duct of will ing and, absent live federal us question, First “The constitutional question, jurisdiction have no we otherwise, must be Amendment grant requested. the relief specific presented of a in the context Accordingly, this ac- dismissal of grievance.” Zwickler, v. live Golden by tion is now af- L. 89 S.Ct. U.S. .firmed. (1969). Ed.2d Affirmed. impracti Nor is a case where eality review at time the of effective anticipato
injury occurs counsels for an ruling. sympathize
ry While we efforts to obtain frustrated Wiseman’s Berg
meaningful petition, of the review not, plaintiffs did
his ultimate failure as inevitably contend, from ini follow REIZAKIS, Appellant, Paris days refusal of two tial access. Within complaint filed, plain their was v. after of a tiffs beneficiaries federal LOY, Appellee. Albert E. granting essentially court order them all No. 73-2402. requested these Appeals, Court of United States of that order defendants. The intent Fourth Circuit. factors, none frustrated several was May Argued 9, 1973. necessarily likely would or even of which litigation.9 repeated If future Jan. Decided conduct defendants should which resume regard plaintiffs their as a violation of rights, despite federal new 6-35 §§ Code, noth 6-65 Election see problem to indicate that will effective at that time. evade review Cf. Ogilvie, 89 S.
Moore
394 U.S.
(1969); Hall v.
1493,
(Harrigan,
Artz, Arlington,
Morris &
Va.,
brief),
appellant.
Lewis, Fairfax,
Richard H.
Va.
Palmer,
(Brault, Lewis,
&
Geschickter
Fairfax, Va.,
brief),
appellee.
BOREMAN,
Bеfore
Circuit
Senior
Judge,
RUSSELL,
and BUTZNER and
Judges.
Circuit
Judge:
BUTZNER, Circuit
appeals from an order
Paris Reizakis
dismissing
against
E.
his action
Albert
Loy
prejudice.1
the cir-
Because
record do
cumstances disclosed
this
imposed by
justify
the sanction
court,
reverse.
alleging
Reizakis,
a citi-
diversity
Canada,
zen of
instituted this
41(b),
1. The court acted under
dismissal
otherwise
specifies,
Fed.R.Civ.P.
its order
dismissal
subdivision
provides
part:
which
under
adjudication
prosecute
“For
.
.
operates
comply
with these
rules or
or-
the merits.”
der
bars
reas-
defendant
move dis-
The statute
of limitations
also
missal of
action or of
claim
sertion of Reizаkis’ claim.
him ....
Unless
1971,2
August,
April 16,
due
after the
action
Sometime
middle
course, Loy
On De- Chaconas satisfied himself that the doc-
filed his answer.
tors who
Loy moved to dismiss
be Reizakis’ witnesses
cember
ground
Reizakis would be available
action
interrogatories
However,
pro-
trial.
he did
obtain sub-
not answered
had
pounded
poenas
meantime,
The same
them.
In the
months earlier.
act-
five
*3
answers,
Reizakis,
day,
on behalf of
he
filed the
made sev-
Reizakis’ counsel
engage
promptly
attempts
eral unsuccessful
to
lo-
to dismiss was
the motion
parties
replace
Attorneys
Watson,
cal counsel to
for both
but not
withdrawn.
met- with the court for the
September
pre-
did
initial
until
first week of
he
obtaining
Virginia
17. At
succeed in
a new
conference on December
as-
trial
request
for a
of Reizakis’ counsel
sociate.
conference, the dis-
continuance of the
days
Thursday, September 7, five
On
15,
it for June
trict court rescheduled
trial,
Thomas
the scheduled
J.
discovery
that all
directed
Watson,
replacement
Harrigan,
February 1,
completed
should be
Loy
Lewis, attorney
H.
and Richard
Loy gave
20,
notice
December
On
1972.
appeared before the district
court.
January
deposition on
tо take Reizakis’
25,
They
accompanied by
were
Watson
deposition was filed March
and the
moved for a
the trial so
continuance of
2, 1972.
Harrigan
could have a reasonable
prepare
case. The record
time
proceedings,
During
Reizakis
these
Lewis
indicate that
offered
does
Chaconas,
represented by Peter A.
was
objection
The
at this
how-
time.
Rudolph
C.,
Washington,
N.
D.
of
ever,
denied
and Harri-
Maryland.
D’Agaris,
Because neither
of
gan
appear-
a formal
declined
enter
Virginia with offices
residents of
were
because he believed
could not
anсe
he
prohibited by
state,
were
prepare adequately in the short time re-
rep-
court from
local rule of the district
Harrigan
maining.
promptly told Cha-
being
resenting
asso-
Reizakis without
although
ruling, and
of the court’s
conas
Virginia attorney who had
with a
ciated
appearance,
he
formal
had not entered a
practice in the court.
admitted to
been
he
said that
the witness-
nevertheless
Virginia attorney
Robert
Reizakis’
attempt
es were available he
part May,
In the latter
C. Watson.
Friday,
day,
prepare
next
the case. The
prepared
Watson,
consent,
with Rеizakis’
Harrigan that the doctors
told
Chaconas
D’Agaris
him to
permit
an order to
the case was
and that
available
were
pretrial confer-
withdraw. At
June
Harrigan
ready.
over
studied the file
ence,
until
denied withdrawal
the court
telephoned
end, but when he
the week
Virgin-
replaced by another
Watson was
11,
September
Monday,
doctors on
lawyer
trial on
set
case for
ia
none of them could be
learned that
Tuesday,
12,
Notwith-
present. By
1972.
it
too late to
time was
standing
subpoena
motion to
of his
them.
the denial
withdraw,
position that
took
Watson
Septem-
Tuesday,
trial,
day
On
May. He
him in
Reizakis had released
12, Reizakis,
ber
date, but
Reizakis of the trial
notified
Harrigan appeared
D’Agaris,
D’Agaris
apparently
Chaconas, citing
did
nor
neither he
the ab-
court.
doctors,
for a contin-
moved
anything
prepare for
trial.3
sence
further
brought
3.
record of events
took
recover
no
2.
There
Reizakis
suit
conference,
pretrial
place
injuries arising
June
personal
an auto-
between
date, September
April 13,
trial
He
and the
1970.
accident
mobile
colloquy
$6,700,
expenses
between court
1972 other
than
excess
medical
claims
September 12,
special
compensation
The
damages,
and counsel on
apparently
permanent disability.
the statements
credited
court
some
findings.
contrary
counsel,
made no
all
for it
noting
Lewis,
uanee.
the inconvenience served that
cases,
“[t]he decided
while
Loy’s
objected,
witnesses,
noting
and the
discretionary
that dismissal is a
matter,
denied the
court
motion. Chaconas then
generally permitted
only
stated that
witnesses who were to
delay
the face of a clear record of
testify
on the
issue
plaintiff.”
contumacious conduct
present, and he moved
have the
Ry.
Durham
Co.,
v. Florida East Cоast
proceed on
(5th
this issue and for a continu-
1967).
Ap
damage
only. Again,
pellate
ance of the
issue
frequently
courts
have found
objected, and
Lewis
the court denied the
abuse of discretion when trial courts
apply
motion.
then
Chaconas
conceded that
failed to
sanctions less severe than
rulings
impos-
e,
view of the
g.,
court’s
dismissal. See
Richman v. General
proceed,
sible
Corp.,
and Lewis moved to dis-
(1st
Motors
prosecution.
1971);
miss the case for lack of
Flaksa v. Little River Ma
granted
Co.,
motion
as-
rine
Construction
*4
389 F.2d
887
including
costs,
jury fees,
(5th
1968); Dyotherm
sessed the
Cir.
Corp. v.
mileage,
against
per
Co.,
diem
Reizakis. Turbo
146,
Machine
392 F.2d
148
granted
D’Agaris’
(3d
1968).
It then
generally
Watson’s
Cir.
And
lack of
prejudice
motion to
though
withdraw.
to the defendant,
not a
dismissal,
bar to
is a factor that must be
unquestiona
A district court
determining
considered in
whether the
grant
bly
authority to
a motion to
has
trial court exercised sound discretion.
prosecution.
want of
Fed.
dismiss for
Dennison,
Pearson v.
353
28
24,
F.2d
41(b).
Indeed,
Supreme
as the
R.Civ.P.
(9th
1965).
Cir.
R.R.,
in Link v.
370
Court held
Wabash
light
forego
8
82 S.Ct.
L.Ed.2d 734
It is in
U.S.
ing
(1962),
interpretation
ac
41(b)
trial court can take such
of Rule
that we
tion on
own motion. But courts in
its
must consider the
of this
circumstances
uniformly
terpreting
depict
rule
hold that
casе.
do
The facts
“a drawn
automatically
history”
“deliberately proceeding
or mechani
it cannot be
Against
applied.
power
pre
dilatory fashion,”
cally
inas
Link v. Wa
delays
weighed
R.R.,
626, 633,
vent
must be
the sound bash
82 S.Ct.
public policy
deciding
(1962).
cases
their
L.Ed.2d
8
734
Wright Miller, Moreover,
generally,
merits. See
&
was not
Reizakis
shown
personally responsible
Federal Practice and Procedure: Civil
for
of the in-
(1971).
Consequently,
delayed
2370
cidents that
the case. While he
§§
tempered
withdraw,
a care
dismissal “must be
knew that Watson wished to
judicial
unreasonably expected
princi-
ful exercise of
discretion.”
he not
his
Durgin
Graham,
pal
arrange
counsel,
F.2d
for a
(5th
propriety
1967).
comply
Cir.
While the
local associate to
with the rules.
ultimately
Furthermore,
apparently
dismissal
on the facts
turns
noth-
knew
judging
ing
case,
subpoena
of each
criteria for
wheth
about the failure to
contrary,
appears
er
discretion of
has
To the
doctors.
soundly
money
been
exercised have been stated
that he advanced
for
fees
witness
Rightfully,
frequently.
expected
courts are reluc
the case to be tried as
punish
attorneys
tant
a client
the behavior
His
scheduled.
unable
lawyer.
proceed
of his
Edsall v. Penn Central
either because
failed to
Transportation
(6th
give
notice,
Co.,
adequate
or be-
doctors
1973). Therefore,
situations
cause
understand-
Chaconas relied
his
responsible
party
where a
is not
that the doctors would
available
attorney,
taking
precaution
subpoe-
fault
his
dismissal
be without
naing
only
selecting
appropriate
invoked
in extreme circumstances.
them.
Building Materials,
dereliction,
In
Industrial
Inc. v.
sanction
this
Corp.,
terchemical
1339 court did not consider measures less
1970).
(9th
Indeed,
dismissal,
imposing
ob-
has been
drastic than
such as
Naturally,
sympathies
fine
Rеizakis’ attor- ment.
are
or costs
any litigant
neys. Finally,
suddenly
that a
it does
discovers
Loy’s
prejudiced
continuance would have
that the results of
counsel’s inatten-
his
witnesses,
course,
tion,
indifference,
diligence,
Loy, his
Of
lack of
defense.
attorney
negligence,
would have been sub-
him in
his
visited
are
jected
expenses
to extra
and inconven-
terms of the dismissal of his
case
rescheduled,
compen-
ience if the case had been
opportunity
loss of an
to be
monetary
personal
but
sanctions were available
injuries;
sated in
rectify
Moreover, in-
harm
sympathy
place
аs well.
can have no
of the witnesses
convenience to some
process.
properly
Each
decision
prevented
trying
could
been
peculiar
to be considered
its own
suggested by
issue of
Reiza-
facts and circumstances.
kis’ counsel.
41(b)
“The first
sentence of Rule
provides for the dismis
[Fed.R.Civ.P.]
The District Court for the Eastern
‘of
claim’ for fail
sal
an action or
Virginia
exceptionally
District
prosecute.
ure of
busy, and the
demands
the time of its
language
quoted
comprehensive”
judges
jurors
great.
and its
Its
“clearly places
the Rule
dismissal
judges
diligent
bringing
properly are
prosecute
the district
litigation
delay.
to trial without
But
Moore’s Federal
court’s discretion.”
interpretation
41(b)
of Rule
found
pp.
[2],
Practice
1114-1115.
41.11
¶
in the well reasoned
cited
cases
above
*5
prosecute”
constitutes “failure to
What
bars dismissal
the circumstances dis-
for
depends,
course,
on
facts of the
closed
this
record. Available
particular
presented to the
situation
district court were lesser sanctions suf-
and,
exercising
its sound discre
prompt disposition
ficient
to assure
tion,
the court should consider all
discourage
this case and to
similar con-
However,
pertinent
circumstances.
Additionally,
duct
in the future.
law is clear that an order of dismissal
tried,
issue could have been
prosecute
will not be dis
lost,
if Reizakis
would have
appeal
there has been
turbed
unless
delay.
ended without further
clear abuse of discretion.
judgment
reversed,
The
and this
majority opinion
undertakes
case is remanded with directions that
which were before
recite the facts
be reinstated.
time of the dismis-
at the
district court
prosecute.
for failure to
sal
BOREMAN,
Judge
Senior Circuit
(dissenting):
margin
excerpt
forth
In the
is set
regard
respect
proceedings
transcript
With all due
of the
from the
opinion
my brothers,
the court when the case was
somewhat
disagree-
Summarizing,
reluctantly
I state this note of
called for
trial.1
moment,
es,
1. MR.
ascertained
from
CHACONAS: At
this
Your
should have been
Honor,
ample
depositions
I
time
would like to
There was
make a motion.
taken.
right,
depositions.
THE
All
COURT:
sir.
for those
record,
I
MR.
I
CHACONAS:
would like
make
For
MR. CHACONAS:
an oral
these Doctors
motion to ask for a
also to state that
continuance
would like
they
perform-
expert
are
case due to the fact
available because
that our
are not
profession
witnesses are not
in the medical
available
this moment.
their duties
they
perform
be,
attempting
du-
We do
not know when
and if
here to
will
we
your
profession.
grant
motion,
legal
Honor does not
us
in the
ties
therefore,
denying
respect
opinion in
I ask that
I do
the Court’s
case will not be
I want
submitted
for a
but
to this Court at this time.
me the motion
clearly
THE
show that
there was
COURT: The case has been set for
the record to
attempt
Attorneys
Ample
Plaintiff
since
June 15.
time has been
prepare
Doctors to
had to
and retain these
the case.
If
there was a
to obtain
question
unavailability
witness-
.
.
I
told counsel
the Plaintiff
attempt
that I would
to contact
the various
today,
clearly
here
and I want
the record to
parties
Thursday,
and came into court
last
state that.
days ago,
which was five
and move for a
subpoenas
THE COURT:
issued?
Were
continuance and with Mr.
who had
MR.
There were not sub-
CHACONAS:
withdraw,
a motion to
I came in and re-
poenas
telephone
issued. There were
con-
quested in fact
if the case would be
telegrams
versations
to ascertain
continued Mr. Watson could be allowed to
presence
Doctors,
of these
but unfortunate-
go
record,
withdraw and then I could
ly, apparently,
emergencies
their
were above
I was not on rеcord at that time.
presentation
purposes
their
here for the
go
The Court denied that.
I did not
patients,
suppose.
their
I
I
record.
day
notified Mr. Chaconas that same
you
you
THE COURT:
tell me
Can
when
ruling
of the Court’s
and told him to
they
first
ascertained that
would not be
immediately notify the Doctors and
available?
got
together
he
glad
his witnesses
help
I
be
would
Well,
began
MR. CHACONAS:
we
three
attempt
get'
out and
ago
Friday
and four weeks
and as of
we as-
try
case and
it for him.
certained that one of the Doctors would be
Friday
week,
days ago,
of last
three
he no-
today,
town,
available
through
but he is out оf
tified me he contacted the Doctors and that
answering
secretaries or
service or
they
available,
were
the ones that were
may be,
point
whatever
they
is that
needed,
prepared.
that the case was
through
agencies
were contacted
their
prepared
I
the case over
the weekend.
agents
through
answering
bureau
Yesterday I contacted the Doctors for the
Bureau,
they
put
or the Medical
were
purpose
finding
telling
them what
position
notice and
out —
we have taken our
call,
time I would have them on
and when I
they
put
on notice.
sаid,
contacted them all of them
“I couldn’t
ago
THE COURT: Three or four weeks
there,” they
had to be somewhere else.
you
when
might
ascertained that
some of them
town,
night
One
was out of
and late last
be unavailable was
effort made—
point
—and at that
it was too late to issue
No, your Honor,
MR. CHACONAS:
any subpoena
anyone,
only
and it was
put
put
were not
on that notice. We were
night
late last
I determined
that no
on notice that
inbe
contact and
whatsoever,
Doctors would be available
available,
is where
I
we stand.
I
informed Mr.
informed the
legal profession
don’t think
should be
Clerk
monies wеre available for
running
looking
around on a horse
for Tonto
*6
fees,
right up
point
Doctor’s
and
to that
I
something
people
like that.
These
are
was assured that
there would be medical
money. They
years
owed
have for two
been
testimony
and that
there would be
taking care of Mr. Reizakis.
I don’t know
testimony,
posture
and
the
that was
just
what it is.
It is
a situation that is dif-
morning,
ease this
and I told Mr. Chaconas
profession,
hope you
ficult for our
and I do
they
that based on the fact
that
testimony
I assumed
sympathize
position
just
with our
that we
would have the medical
here and I
put
just
people
cannоt
these
in line to
come
they
not,
found out
did
that
there was not
sometimes,
question
in
they
and it
is not a
that
go
reason for me to
on record in this
being
are
denied their fee because the
case,
my
and that
is how
name came into
available;
income,
fees are
are
I
and
this case.
do believe that
the client —and the client is
THE COURT:
In June when I set
country.
a
not
citizen of this
This is the
case for trial
part
Mr. Watson said
was
unfortunate
about it.
requesting
then
I
Honor,
withdraw.
wouldn’t let
right
Your
the client has a
to be
him
I
represented
withdraw.
told him he would have to
right
repre-
and he has a
to be
definitely
tell his client
the case was
in
sented
the sense that we do have availa-
going
September 12,
to be
people
tried on
and that
testify
him,
surety
ble
and the
get
if he had to
other counsel
there
professionism,
of the situation is with
what-
get counsel,
were two months left for him
ever it
be.
least,
months,
Plaintiff,
three
and so the
trying
put
speech. They
I am not
on a
concerned,
insofar
just
as counsel
here,
not
duty
and we did our
in
blameless
this matter.
officers of the
and that
is all
can
do.
He has
known
some time that
the case
going
today
was
to be tried
without
Mr.
and there was no reason that
Honor,
my
MR. HARRIGAN: Your
since
he cоuld not have notified his
mentioned,
Doctors as
name has been
I would like to
early as
explain
June and ascertained then their
the situation for
the record if it
availability.
go
Appeals.
does
to the Court of
week,
ago,
Last
a week
I was first contact-
MR. CHACONAS:
....
We have
brought
ed.
my
get
file was
into
tried in
office.
this ease to
counsel. We have
April
D’Agaris, Maryland attorney,
present
on
instituted
Mr.
a
action was
plaintiff.
1971,
16,
answer
withdraw as counsel for the
the defendant’s
Interrogatories
permis-
pro-
request
timely
The reason for
the
filed.
was
by
July
sion to withdraw is not disclosed
the
pounded
to the
request
five
The court
the
until
refused
not answered
record.
were
response to the
unless
local
should
an
counsel
enter
then
months later and
appearance
replace
filed
Mr.
Not
had been
Watson.
of motion which
threat
by
September
Harrigan,
until
did
action
Mr.
defendant to dismiss
interrogato-
appear
attorney,
local
a motion for
for failure to answer
conference,
on the
pretrial
continuance was made so that
first
ries. The
very
17, 1971,
eve of
trial
counsel could
was
new
for December
scheduled
prepare.
plaintiff’s
coun-
The court
insisted
continued on motion of
definitely
June the trial
had
date
been
entered at
sel and
order was
September
discovery
fixed as
request
denied
providing
should
that all
time
completed by February
at which time
Harrigan
formally
Mr.
declined to
enter
given by
22 notice was
On December
appearance.
On
trial date
plaintiff’s discov-
the defendant to take
motion for continuance was made
ery
deposition
deposition
was
but
plaintiff’s
ground
counsel on the
filed until March
they had been
unable
secure
at-
delay
does not
reason for this
witnesses,
tendance of medical
but
case
On June
rеcord.
certainly apparent
was
to the court that
pretrial
on for
and at that
came
formal
subpoenaed
the witnesses had not been
positive
the court
definite and
time
and that no serious effort had been
ordering
tried
the case should be
procure
made
counsel to
their attend-
jury.
September 12, 1972,
on
Attempts
before
ance.
It was stated to the court that
part
plaintiff’s coun-
on the
night preceding
late in the
date
trial
made
sel to obtain a continuance
local counsel determined that no doctors
days
September
five
would be available for trial
“I in-
date,
request
denied
trial
formed
Mr.
informed
that at
court reminded counsel
and the
Clerk the monies were available for the
pretrial
conference
June
”
Doctor’s fees.
.
.
The time
jury
definitely
set
been
when the so-called
made
fees were
avail-
beginning
September 12. On
able
the amount thereof are not dis-
morning
further ef-
closed.
a continuance
made to secure
forts were
ap-
proceedings
the details of the
authority
No citation of
needed
*7
transcript
forth
pear
thereof set
in the
support
premise
the
courts
that district
in
ante
footnotе
must have control of their dockets with-
disruption
the district court
or
in
rules of
interference
order
The local
attorney
orderly
provide
out-of-state
of
that an
assure the
conduct
the
litigation
engage
judicial
in the
in
court’s business.
I take
notice
Virginia
he
unless
of
of
of the fact that the Eastern District
Eastern District
busy district;
Virginia
extremely
local counsel.
with
is an
associated himself
has
Division,
counsel, appeared in
the
of
Alexandria
local
dockets
Mr.
and,
litigation
case,
arose,
with
in
over-
instituted the action
which this
complaint.
involving litigants
signed
counsel,
burdened with cases
following
anxiously
impatiently
year
Approximately one
who are often
awaiting
request
opportunity
action a
to have their
institution of the
day
permit
in
of
Mr. Watson
have their
made
the court to
“turn at bat”—to
why
impossible
situation.
That
for a continuance.
we made our motion
testimony
circum-
tried for the medical
just
come about
stances or events
1139
developing
complaint
rapidly
policy
deposi-
The
of
had
court.
taken the
judicial
system
prepare
tion
looks
disfavor
had not
been able
diligence
negli-
upon
pressing
lack of
trial due to
counsel’s
business matters.
gence
preparing
in
for trial. The
It was
cases
held
the action of
the trial
get
position
court,
denying
in
the “feel” of
in
motion
a
for continu-
ance,
appraise
directing
the attitude of
proceed,
case and to
the trial
diligent prosecution
dismissing
action,
toward the
counsel
albeit without
litigation.
prejudice,
plaintiff’s
of
when
counsel de-
proceed,
clined to
was not an abuse of
(2
Vindigni Meyer,
v.