Ruby H. Harris v. Reginald Callwood & Daisy Callwood

would result in dismissal of the case. RYAN, Before MERRITT and Circuit BROWN, Judges, and Senior In Circuit Co., Link Wabash Railroad 370 Judge. 630, 626, U.S. 1386, 1389, 82 S.Ct. 8 L.Ed.2d (1961), 734 Justice Harlan established that

MERRITT, Judge. Circuit courts have the inherent “acting on initiative, their own to clear their Ruby The District Court dismissed calendars Har- of cases that ris’ of have remained be breach contract action under dormant cause of the or Federal Rule Civil inaction dilatoriness of Procedure of parties seeking counsel, to comply fаilure relief.” the Court’s Plaintiff’s pretrial conference, who had prior order to for a final notice of a deliberately conference, did trial. not attend the previously had dilatory prosecuting been 11, Judge July Lambros’ order1 case, and did not file a motion for indicates that a conference would take justifying reconsideration his conduct. Id. place Harris, on October who is 627-28, 82 affirming at S.Ct. at In 79, argues copy that she never received dismissal, the Court stated: of this order and therefore she did not true, course, It appearance her “the fundamen- required know in court requirement process op- tal of due on October is an begin- 14. Harris states that portunity to ning in June be heard such she on notice numerous occa- telephoned proceedings adequate sions as are the court safe- clerk’s office guard spoke right a Mrs. Artz about which constitu- the status began protection her case. keeping Harris notes of tional is invoked.” Anderson August Luckett, her explains calls late 321 1986. She National Bank v. U.S. called, 599, 606, that each time she Artz told her to 246 S.Ct. 692 88 L.Ed. [64 wait, (1944) that there was no adequacy news about wheth- notice and ].... judge er proceedings had In hearing respecting reinstated her case. September October, turns, early rights late party’s Harris affect a to a consid- extent, asked Artz in person knowledge about case erable on Artz told her wait party may three weeks and then the circumstances show such meantime, check the again. consequences file In the on be taken have conference, October the date of his own conduct. 23, 1986, Judge

1. On discovery Lambros dismissed —all shall be concluded within (60) Harris’ because of failure sixty days case date of this order prosecute to obtain new counsel and further dispositive —all motions be made shall case, allowing days 60 for reinstatement. Har- (30) thirty days within close from the ris motioned the Court-for reinstatement of her covery Judge July case in June. order Lambros' 11 be —a final settlement conference shall granting Harris’ reinstatement motion states: held 10:00 at a.m. unopposed Plaintiff has filed an motion Courthouse, Room United States Cleve- hereby reinstate this action. This motion is land, Ohio. granted. parties in this case shall abide following pretrial schedule: alty contemplated”); 1389-90. The at S.Ct. at U.S. Tolbert v. Leighton, holding narrowly (9th limited its Cir.1980)(abuse Court 623 F.2d particular circumstances of the facts and discretion to dismiss where, case. at 82 S.Ct. at 1391. alia, Id. inter “court has not warned that fail ure to attend will dismissal”). create risk of Circuit, frequently have the Sixth we dismissing reversed district courts From these cases we extract the litigants appear cases failed to or principle that in the absence of notice that comply with orders when the contemplated dismissal is a district court put par did not the derelict district courts impose penalty should short of dismissal noncompliance ties on notice that further unless the derelict has in See, in e.g., would result dismissal. Carter “bad faith or contumacious conduct.” In 159, Memphis, 636 F.2d 161 City v. of the case before us there was no such notice applies only in (1980)(penalty of dismissal faith, finding and no of bad and there was delay “extreme situations” of deliberate or justifying a motion to pro reconsider se conduct”); Pitts, Holt “contumacious v. litigant’s failure to at the confer 558, (1980)(same); 619 F.2d 562 Patterson Nothing ence. disputes the record Blanc, Township v. Grand 760 F.2d of facts she justification asserted in for her (1985)(same); Cross, Bishop v. 688 790 failure to attend the conference. Accord (dismissal (1986) requires F.2d 39 ingly, judgment of the District Court willfulness, “degree bad or contu of faith dismissing 41(b) this case under Rule conduct”). Note, macious See also Dismis reversed and the case remаnded for fur sal Failure to Attend a Pretrial Con proceedings. ther Sanctions at Pre Use ference of paratory Stages Litigation, 72 Yale L.J. BROWN, BAILEY Senior Circuit (1963). 830 But see Coston v. Detroit Judge, concurring. (6th Co., 789 F.2d 379 Cir. Edison writing If we were on a clean slate for 1986)(repeated failure of counsel to circuit, I agree would be inclined to proceedings appeal both at trial and on Judge Ryan’s interpreta- with dissent in its dismissal). justifies excuse Other 41(b) tion of Rule and Link v. Wabash exрlicitly require “adequate circuits notice R.R., 370 U.S. 82 8 S.Ct. L.Ed.2d contemplating was that the Court the dras (1962). problem 734 is that we have a sponte tic measures” of sua dismissal in prior opinions series of panels of this faith or absence bad other similar dealing questions, court with these Bastedo, egregious Saylor conduct. v. majority opinion is consistent with these (2nd Cir.1980) (Friendly, F.2d 238-39 Cross, opinions. Bishop (6th v. 790 F.2d 38 J.) (procedural requirement sponte for sua Cir.1986); Township Patterson ‍​‌​​​​​​​‌‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌​‌‌‍v. implicit dismissal in Link not mеt where Blanc, (6th Cir.1985); Grand 760 F.2d 686 given counsel “reason to think” never Tenn., City Memphis, Carter case). might court dismiss Accord Schill (1980); Pitts, F.2d 159 and Holt v. 619 F.2d County Park v. Walworth & Plan (1980). opinions, all of these Comm’n, (7th ning 805 F.2d 276-77 dismissing district court was reversed (district Cir.1986) court should se warn prejudice. with litigants possible consequences of ne Judge Ryan points As to the facts: as glect if it intends to sanction with dismis out, sal); the Clerk’s office record showed that McKelvey v. AT T Technologies, & pre-trial notice of the second Inс., (11th 789 F.2d 1520-21 Cir. appellant (on mailed to 1986)(lack which the dis- of notice of court order does not relied), trict court it is also true that constitute “extreme but circumstances” neces sary appellant promptly filed a motion to set impose remedy drastic of dismis dismissal, sal); claiming Camps Co., P aside the that she had v. C & Tel. 692 F.2d notice, (D.C.Cir.1981)(court actually mo- “ac not received the should quaint pro litigants tion the district court denied without fur- with the sort of risk pen inquiry. tardiness creates when dismissal is the ther I panel Since do can by obeying not that this believe the court’s orders to required or when prior should overrule the decisions of to do so. panels, I majority opinion. concur with court dismiss sua sponte prosecution would add that the standard dismissal lack gener- has applied by ally been majority opinion pow- considered an “inherent has er,” governed not Moreover, advantage rule statute but certаinty. of some it necessarily control vested appear that, general practice, would as a manage courts to their own affairs so as orders, would be well to include in all such to achieve orderly expeditious setting conferences, as pre-trial those disposition of cases. to appear may failure result dismissal Link, 630-31, 370 U.S. at 82 S.Ct. at 1389. without further notice. In addition power, to that inherent a trial is specifically empowered cоurt by Fed.R. RYAN, Judge dissenting. Circuit involuntary Civ.P. to order dismissal The district court dismissed the of cases failure of the to “[f]or complaint, presumably tiff’s on the authori- prosecute comply or to any with ... order 41(b), ty although of Fed.R.Civ.P. of the the dis- court....” so, say trict court’s order does not for the properly To determine whether the dis- plaintiff’s prosecute to failure the action trict court its abused discretion in dismiss- comply pretrial and to with the court’s or- case, ing plaintiff’s ‍​‌​​​​​​​‌‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌​‌‌‍thе is necessary to ders. examine the history docket-record the case, gain, and to thereby, appreciation an think, indisputable, It I is that our stan of the nonprosecution record of dard of review is whether the district court case, of the the suffered the has abused its discretion. Link See v. Wa result, defendant as a history and the Co., 626, 633, bash R.R. 370 U.S. 82 S.Ct. the trial patience plaintiff. court’s the with 1386, 1390, (1962);1 8 L.Ed.2d 734 Consoli The majority the declares that 230, Coal 703 Gooding, dation Co. v. F.2d distriсt court dismissed the “pro (6th Cir.1983); Wright 232-33 9 A. C. & se breach of contract action under Fed.R. Miller, Procedure, Federal Practice and Civ.P. comply to the for failure (1971). Nevertheless, 2370 at 203 this § pretrial court’s order a for finding any abuse of discre prior (Empha- to trial.” final conference acknowledging tion or even the existence added.) correct, Although essentially sis standard, finding any that and without that statement is bit underinclusive. The violation of Fed.R.Civ.P. has re court’s order of dismissal recites as rea- the judgment versed court’s district factors, sons for the dismissal a number of In my judg ordered case reinstated. including previous dismissal of ac- ment, doing the court errs in and I so must prosecute, tion for failure respectfully dissent. plaintiffs failure to at the sec- elemental, think, It is that federal conference, pretrial ond scheduled de- trial court has power the inherent to con- conference, every fendant’s attendanсe at trol ways, its docket in number includ- legal the costs “time and fees” to power order dismissal civil plaintiff’s procedural defendant for the prosecuting cases in which lapses, does pendency of the case for diligently not than years.2 move conclusion more four Link, ap- 1. [W]hen circumstances make such action 370 at U.S. at 82 S.Ct. propriate, a District Court dismiss a com- 2. The court’s order states: plaint prosecute for failure even withоut previously This action was dismissed affording notice of its intention to do so prosecution, want motion of and was reinstated adversary hearing providing acting. an before July plaintiff by this Order of Court appeal Whether such an order can depends stand Order, In accordance with that not on but on whether it was action came on for final on permissible range within the of the court’s October 1986. A record was taken discretion. proceeding. appeared for de- Counsel case, history Plaintiff, of the October procedural acting se, fails to at in which the court creates the context exer- settlement conference. action, dismiss the cised is its discretion 17,1986 October as Court follows: enters order missing prejudice. the action with action May Plaintiffs is filed. 1986 Plaintiff files “Motion judgment Default entered June Carry for Bill to a Decree into Execu- against failure to file defendants tion” which the district court as treats despite an two extensions answer judgment motion for release from granted by the court. pursuant 60(b)(6). to Rule de- Court judgment June 1983 Default set declaring nies the motion is there permitted aside and defendants an- sup- “no or new evidence swer. port reconsideration.” August 31, 1984 Defendants move to Thus, case, at the time of the trial prose- failure to dismiss for dismissal, pending on the trial discovery cute and no or other court’s docket almost four and one-half place. action has taken years. plaintiff, represented at first September responds Plaintiff se, counsel appearing pro and later had necessary discovery no and that discovery conducted no de- whatever and ready

she trial. any. clared that there was no need for Two conferences were scheduled. February 1986 District court denies first, April plaintiff’s At the in coun- to defendant’s motion dismiss and appeared sel and announced that he could pretrial April schedules conference for represent plaintiff not the because he had 23, 1986, May and trial 1986. been discharged. Plaintiff claimed her attorney March 1986 Plaintiffs indi- lawyer discharged, had not been and that cates to that the court he has “re- she prepared proceed pro was not to se. (returned the turned filed” file to the The case prose- was dismissed want of plaintiff) formally has not but with- plain- cution and reinstated thereafter at drawn. pro request. Despite tiff’s se the 1986 Pretrial conference. understanding handling tiffs that she was Plaintiffs counsel moves for with- se, pro the case she failed to on declaring that he had drawal been dis- 14, 1986, pretrial October at the second charged by plaintiff the in November conference, again court once dis- plaintiff a statement which dis- missed the case. putes. very This is devoted The court the аction dismisses largely to a restatement the essence prejudice plaintiffs failure to hire presentation during pro the se given new counsel. Plaintiff is argument appeal. oral on It describes days within which reinstate the ac- telephone series of calls with a member tion, which, failing “this action is dis- the the district court’s staff and comes to prejudice.” missed with implicit that pro plaintiff conclusion the July court District reinstates pretrial was not notifiеd of the second con- the action and schedules final settle- ference on is That conclusion despite ment indisputable conference for October reached the fact that fendants, action, however, se, plaintiff, prosecute now this have defendants pretrial failed the at conference. period Ac- been at risk entire of time. this Given that defense counsel has been at- in cordingly, inappropriate it be allow would every pretrial tendance at conference ordered defendants at to remain risk in this action. Court, by be this it would an unreasonable reasons, is For the above-stated action imposition spend require defendants to ad- hereby ac- and this dismissed legal ditional time and fees in defense of this is tion terminated. action, plaintiff prosecute. fails to IT IS SO ORDERED. Plaintiff given years has been over four Thus, the of the district court re- for the first docket shеets time insofar as I know, court’s order contain- veal that the district this court announces a rule that no date, time, place the notice of may district court this circuit dismiss a pretrial mailed conference was case for of prosecution want unless it has plaintiff July 1986.3 The court con- given notice that “dismissal is contem- cludes, however, that oral 41(b) plated,” contrary notwith- argument she claim before this that standing. Presumably, only if such notice was nоtified of the not scheduled given may the case dismissal authority conference, must be correct because “there 41(b) by conferred be exercised. But more disputes in the record that these that, declares, than by the court negative contrary, On contentions.” the record implication, that in a case which plain- very clearly disputes conten- tiff prosecute fails to the case appropriate- tions record shows that ly but thе give trial court fails to “notice notice, plaintiff given regular mail contemplated,” dismissal is presumed which notice is to have been re- only miss the case if it finds that regularly just ceived as other mailed orders derelict “has in ‘bad faith or directed to the were received. See ” contumacious conduct.’ The conditions # trial court docket entries # # 21 by newly created the court’s made rules and #29. Congress' are not to be found idea about determined, The trial court in its discre- authority the trial court’s to dismiss for tion, of progress utter lack of this prosecution, want of because such condi- period years, case for of more than four part 41(b). tions are no of Rule including history of dismissal Quite complete aside from this court’s years nonprosecution earlier two lack of to rewrite Rule by reinstatement the court followed today rule the panel announced is nei- failure to at the nеcessary application ther a correct nor conference, warranted the exercise of the the somewhat like-minded announcements court’s inherent and Rule au- panels per speaking two this court thority dismiss the case. There is not in curiam earlier cases. slightest basis in this record to con- clude that the district court abused its dis- In v. City Memphis, Tennes- Carter conclusion, reaching cretion in that and we see, (6th Cir.1980), 636 F.2d 159 are substitute our own pеr opinion, in a divided curiam set aside discretion for the trial courts. of a which dis- the decision district court plaintiff’s rights complaint a civil missed important What is far more than how plaintiff timely failed to file a decided, particular however, this case is is order, proposed failed conduct My in the manner which is decided. timely discovery, filed “document colleagues have announced new rule Brief, case, Supplement most of which is called а govern all presumably law this hereafter, in totally irrelevant the issues the law- cases like it to come that is here- cases, Citing tofore unknown in this The rule suit.” two Fifth Circuit circuit. today announced is: majority announced that absent a Carter showing delay of “a clear record of the absence of notice that dismissal [I]n plaintiff,” contumacious ‍​‌​​​​​​​‌‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌​‌‌‍conduct an contemplated a district court should impose “order of is an abuse of discre- penalty dismissal short of dismissal un- tion,” less the in and a district court is “limited to derelict has designed “bad faith compli- or contumacious lesser to achieve conduct.” sanctions entry covery; 3. District Court docket be #19 states: a final settlement conference shall at 10:00 on filed. Lamb- held a.m. unopposed pltf. 10/14/86 ORDER that the motion of ros, (1 (7/22/86). p) J. granted; Issued. discovery reinstate this action all (1 expression p)” days The "Issued. is the record shall be concluded within 60 of the date order; dispositive entry subject all that the order was mailed to the motions shall be days plaintiff by made within 30 from the of the court. close the clerk anee,” Sears, moving citing Roebuck the case justify Silas v. & would dismissal (5th Co., Inc., Cir.1978). Al- noncompliance 586 F.2d whereas with the district though Fifth subscribing to the Circuit’s court’s conditions had not. purpose- engraftment of a onto Finally, panel today relies Bish- conduct” re- “delay

ful or contumacious Cross, (6th op Cir.1986), 790 F.2d 38 in quirement requisite predicate as the for which a fеderal district court dismissed the prejudice, dismissal the real basis for with complaint because the individual holding suggests mere the actual Carter plaintiffs failed to at the voir dire— appellate disagreement a trial presumably means the voir dire ex- discretionary judgment and more: jury. plaintiffs, amination of the who Notwithstanding plaintiff’s attorney’s were truck driver represented brothers and conduct, view, in our the district court counsel, did not at the voir dire dismissing abused its disсretion they examination because were unaware complaint. plaintiff is blameless. they required appear. were Their attorney papers Plaintiff’s did file some attorney prepared did and was indicating prosecution his of the case and proceed. finding of the case. There is no his view panel A of this court reversed the district preju- or evidence that defendant was case, dismissing giving court’s order by plaintiff’s diced dereliction or that the for its reason that the district court “failed ready could not make the case legal articulate basis for its absolute for trial on December 20. Defendant did requirement present that both be ground not move for dismissal throughout the voir dire” and in all events plaintiff’s noncompliance pre-tri- with the requirement had not made that known to attorneys equally al order. Both seem addition, panel counsel. In dilatory. being held that the case was dismissеd Carter, 636 F.2d at legal “because the basis for the court’s panel another of this court filed requirement apparent is not from its deci- per curiam Patterson v. Town- ap- has not sion and been cited to us on Blanc, (1985). ship 760 F.2d 686 Grand peal.” case, In that the district court dismissed therefore, Bishop, noting while case, the exist- finding Carter, ence of did not reverse the district tiff any court’s decision for violation of the ignored February has the court’s standard, Cartеr but because the basis order to serve defendants with his the district court’s dismissal order was not proposed motion to amend amended clear from the record and was not self-evi- Furthermore, complaint. ignored he has dent. February this court’s 1984 order to prepare confer with defendants to and Carter, reading From a careful Pat- joint pretrial

file a statement. terson, and Bishop, am satisfied that despite panel disagreed paying This cоurt's with the dis- some obeisance to the Fifth and, judgment citing reading panel trict court’s after Circuit’s of Rule no decision, announce, previously Fifth cited this court ever intended to Circuit Carter, announced, per adoption and a indeed has not divided curiam article, effectively modifying Yale Law Journal declared that dis- a new rule of law an missal of case was abuse Fed.R.Civ.P. to condition a district Patterson, panel power court’s to dismiss a cаse for want of of discretion. then, order, prosecution upon trial court-like in a curious either advance notice that by of the “is directed conditional reinstatement the dismissal authorized the rule or, that, upon compliance contemplated,” with three absent factual court, appellate demonstrating record that “the derelict imposed conditions being noncompli- party has in ‘bad faith or contu- presumably satisfied understandably ance with appellate court’s conditions macious conduct’ ”—and so, power since that is reserved to Con-

gress. DUNCAN, James Plaintiff-Appellant, ‍​‌​​​​​​​‌‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌​‌‌‍E. Cross-Appellee,

The district court in this case has demon- strated of patience. an abundance Like nearly courts, all federal district the court PECK, Mr. & Mrs. Harold below has massive docket and a serious Defendants-Appellees, responsibility every to move case on the Cross-Aрpellants, docket promptness. with reasonable An ever-increasing percentage of all district court dockets in this circuit include civil Highland Coal & Chemical cases in which the proceeding are Corporation, Defendant.

pro se. Most district courts are extraordi- 87-3092, Nos. 87-3093. narily patient understandably lenient pro litigants who are unfamiliar United Appeals, States Court of procedure. with the rules of That was the Sixth Circuit. Judge situation in this casе. Lambros dis- missed the case once when the Argued Feb. attorney was relieved and the court was Decided not advised of the attorney’s discharge, permit reinstated the case to proceed tiff to No progress se. what-

ever was plaintiff made in the case.

failed to at the after, according to the records of the dis-

trict being properly notified

scheduled conference. The case

was more years than four and one-half old

and has moved no closer to readiness for

trial than it day was on the it was filed. ‍​‌​​​​​​​‌‌‌‌​‌‌‌‌​‌‌​​​​​‌‌​‌‌‌​‌‌‌​​‌‌​‌‌‌‌​‌‌‍my judgment, there is in the permits

record that the conclusion that the

district court abused its discretion in exer-

cising its inherent to dismiss this

case or apply provisions of Rule

41(b), whichever route the district court

adopted. me, serious,

What is more it seems to implicit effort to rewrite

41(b) modify a district court’s

to dismiss a case under by adding that rule requirement that dismissal not be

ordered under the rule unless contuma-

cious conduct or bad faith

be shown. Even if that rule were the circuit, not, and I think it is this court

has no adopt such a rewrite of and I respectfully dissent from doing

its so.

Case Details

Case Name: Ruby H. Harris v. Reginald Callwood & Daisy Callwood

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 21, 1988

Citation: 844 F.2d 1254

Docket Number: 86-4001

Court Abbreviation: 6th Cir.