Wе here vacate a dismissal entered pursuant to Super.Ct.Civ.R. 41(b).
Plaintiff (appellant here) filed the instant complaint on October 26, 1991. Defendant (appellee) answered on January 9, 1992. On February 7, 1992, the trial judge dismissed the case for want оf prosecution because plaintiff did not appear for the initial hеaring in the ease scheduled for that day. As the trial judge did not indicate to the сontrary, the dismissal amounted to a judgment on the merits. Rule 41(b).
On June 9, 1992, plaintiff, by counsel, filed a “Consent Motion to Reinstate Case” under Super.Ct.Civ.R. 60(b), asserting (via counsel’s supрorting affidavit) that plaintiff had never received notice of the February 7 hеaring and, indeed, had not received notice of the dismissal and only learnеd of it after reviewing the case file on June 4, 1992. Counsel stated that “[defendant does not oppose this motion.” In keeping with that representation, defendant filed no opposition to the motion to reinstate the suit. The trial judge nоnetheless denied the motion with the handwritten notation that “[t]he Court records shоw that plaintiff’s counsel, as in all other eases, was given a notice of the initial hearing date when he filed the complaint.”
“We have consistently stated that dismissal with prejudice pursuant to Super.Ct.Civ.R. 41(b) should be sparingly exercised.”
Wilds v. Graham,
In this case, as pointed out, defendant filed no opposition to the motion to reinstáte thе ease and did not dispute plaintiffs representation that it agreed to reinstatement. These facts are not decisive, of course; the finality considerations that underlie Rule 60(b),
see Clement v. District of Columbia Dep’t of Human Servs.,
In this case, the trial judge rested his denial of plaintiffs motion solely upon the faсt that, according to court records, plaintiff had received the notice of the initial hearing date issued to counsel “in all cases” when the cоmplaint is filed. There is no indication that the judge considered other factоrs— including the presence or absence of prejudice to defendаnt — in considering whether the severe sanction of dismissal of the suit with prejudice wаs necessary.
See Durham,
Judgment vacated.
Notes
. We have made the same point with respect to dismissаl under Super.Ct.Civ.R. 16-11 for failure to appear at a pretrial, settlement, оr status con
. See,
by contrast,
Solomon v. Fairfax Village Condominium IV Unit Owner’s Assoc.,
