Link v. Wabash Railroad Company/Opinion of the Court

by John Marshall Harlan II

United States Supreme Court

370 U.S. 626

William LINK, Petitioner,  v.  WABASH RAILROAD COMPANY.

 Argued: April 3, 1962. --- Decided: June 25, 1962

Petitioner challenges, from the standpoint of both power and discretion, the District Court's sua sponte dismissal of this diversity negligence action under circumstances that follow.

The action, growing out of a collision between petitioner's automobile and one of respondent's trains, was commenced on August 24, 1954. Some six years later, and more than three years after petitioner had finally prevailed on respondent's motion for judgment on the pleadings (during which time two fixed trial dates had been postponed), ^[1] the District Court, on September 29, 1960, duly notified counsel for each side of the scheduling of a pretrial conference to be held at the courthouse in Hammond, Indiana, on October 12, 1960, at 1 p.m. During the preceding morning, October 11, petitioner's counsel telephoned respondent's lawyer from Indianapolis, stating that 'he was doing some work on some papers,' that he expected to be at the pretrial conference, but that he might not attend the taking of a deposition of the plaintiff scheduled for the same day. At about 10:45 on the morning of October 12 petitioner's counsel telephoned the Hammond courthouse from Indianapolis (about 160 miles away), and after asking for the judge, who then was on the bench, requested the judge's secretary to convey to him this message: 'that he (counsel) was busy preparing papers to file with the (Indiana) Supreme Court,' that 'he wasn't actually engaged in argument and that he couldn't be here by 1:00 o'clock, but he would be here either Thursday afternoon (October 13) or any time Friday (October 14) if it (the pretrial conference) could be reset.'

When petitioner's counsel did not appear at the pretrial conference the District Court, after reviewing the history of the case ^[2] and finding that counsel had failed 'to indicate * * * a reasonable reason' for his nonappearance, dismissed the action 'for failure of the plaintiff's counsel to appear at the pretrial, for failure to prosecute this action.' The court, acting two hours after the appointed hour for the conference, stated that the dismissal was in the 'exercise (of) its inherent power.' The Court of Appeals affirmed by a divided vote. 7 Cir., 291 F.2d 542. We granted certiorari. 368 U.S. 918, 82 S.Ct. 242, 7 L.Ed.2d 134.

The authority of a federal trial court to dismiss a plaintiff's action with prejudice because of his failure to prosecute cannot seriously be doubted. ^[3] The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of nonsuit and non prosequitur entered at common law, e.g., 3 Blackstone, Commentaries (1768), 295-296, and dismissals for want of prosecution of bills in equity, e.g., id., at 451. It has been expressly recognized in Federal Rule of Civil Procedure 41(b), which provides, in pertinent part:

'(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits.'

Petitioner contends that the language of this Rule, by negative implication, prohibits involuntary dismissals for failure of the plaintiff to prosecute except upon motion by the defendant. In the present case there was no such motion.

We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule-which merely authorizes a motion by the defendant-nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. ^[4] That it has long gone unquestioned is apparent not only from the many state court decisions sustaining such dismissals, ^[5] but even from language in this Court's opinion in Redfield v. Ystalyfera Iron Co., 110 U.S. 174, 176, 3 S.Ct. 570, 28 L.Ed. 109. ^[6] It also has the sanction of wide usage among the District Courts. ^[7] It would require a much clearer expression of purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well-acknowledged a proposition.

Nor does the absence of notice as to the possibility of dismissal or the failure to hold an adversary hearing necessarily render such a dismissal void. It is true, of course, that 'the fundamental requirement of due process is an opportunity to be heard upon such notice and proceedings as are adequate to safeguard the right for which the constitutional protection is invoked.' Anderson National Bank v. Luckett, 321 U.S. 233, 246, 64 S.Ct. 599, 606, 88 L.Ed. 692. But this does not mean that every order entered without notice and a preliminary adversary hearing offends due process. The adequacy of notice and hearing respecting proceedings that may affect a party's rights turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct. The circumstances here were such as to dispense with the necessity for advance notice and hearing.

In addition, the availability of a corrective remedy such as is provided by Federal Rule of Civil Procedure 60(b)-which authorizes the reopening of cases in which final orders have been inadvisedly entered-renders tha lack of prior notice of less consequence. Petitioner never sought to avail himself of the escape hatch provided by Rule 60(b).

Accordingly, when circumstances make such action appropriate, a District Court may dismiss a complaint for failure to prosecute even without affording notice of its intention to do so or providing an adversary hearing before acting. Whether such an order can stand on appeal depends not on power but on whether it was within the permissible range of the court's discretion. ^[8]

On this record we are unable to say that the District Court's dismissal of this action for failure to prosecute, as evidenced only partly by the failure of petitioner's counsel to appear at a duly scheduled pretrial conference, amounted to an abuse of discretion. It was certainly within the bounds of permissible discretion for the court to conclude that the telephone excuse offered by petitioner's counsel was inadequate to explain his failure to attend. And it could reasonably be inferred from his absence, as well as from the drawn-out history of the litigation (see note 2, supra), ^[9] that petitioner had been deliberately proceeding in dilatory fashion.

There is certainly no merit to the contention that dismissal of petitioner's claim because of his counsel's unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation, in which each party is deemed bound by the acts of his lawyer-agent and is considered to have 'notice of all facts, notice of which can be charged upon the attorney.' Smith v. Ayer, 101 U.S. 320, 326, 25 L.Ed. 955. ^[10]

We need not decide whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff. For the District Court in this case relied on all the circumstances that were brought to its attention, including the earlier delays. ^[11] And while the Court of Appeals did not expressly rest its judgment on petitioner's failure to prosecute, it nonetheless set out the entire history of the case (including the statement made by the district judge's secretary that it was 'the oldest civil case on the court docket'), noted that the District Court had considered the absence at the pretrial conference in light of 'the history of this litigation' and 'of all the circumstances surrounding counsel's action in the case,' 291 F.2d at 545, and held that there was no abuse of discretion in dismissing the action 'under the circumstances of this case.' Id., at 546. This obviously amounts to no broader a holding than that the failure to appear at a pretrial conference may, in the context of other evidence of delay, be considered by a District Court as justifying a dismissal with prejudice. ^[12]

Nor need we consider whether the District Court would have been abusing its discretion had it rejected a motion under Rule 60(b) which was accompanied by a more adequate explanation for the absence of petitioner's counsel from the pretrial conference. No such motion was ever made, so that there is nothing in the record before us to indicate that counsel's failure to attend the pretrial conference was other than deliberate or the product of neglect.

Finally, this is not a case in which failure to comply with a court order 'was due to inability fostered neither by * * * (petitioner's) own conduct nor by circumstances within its control.' Societe Internationale Pour Participations Industrielles Et Commercials, S.A. v. Rogers, 357 U.S. 197, 211, 78 S.Ct. 1087, 1095, 2 L.Ed.2d 1255. Petitioner's counsel received due notice of the scheduling of the pretrial conference, and cannot now be heard to say that he could not have foreseen the consequences of his own default in attendance.

Affirmed.

Mr. Justice FRANKFURTER took no part in the decision of this case.

Mr. Justice WHITE took no part in the consideration or decision of this case.

Mr. Justice DOUGLAS dissents.

Mr. Justice BLACK, with whom THE CHIEF JUSTICE concurs, dissenting.

Notes

1. See note 2, infra.
2. A history of the litigation appears in the opinion of the Court of Appeals:
3. See Fed.Rules Civ.Proc., 41(b), 28 U.S.C.A., 370 U.S., p. 630, 82 S.Ct., p. 1388, infra.
4. E.g., Cage v. Cage, 5 Cir., 74 F.2d 377; Carnegie National Bank v. City of Wolf Point, 9 Cir., 110 F.2d 569; Hicks v. Bekins Moving & Storage Co., 9 Cir., 115 F.2d 406; Zielinski v. United States, 2 Cir., 120 F.2d 792; American National Bank & Trust Co. of Chicago v. United States, 79 U.S.App.D.C. 62, 142 F.2d 571; Shotkin v. Westinghouse Elec. & Mfg. Co., 10 Cir., 169 F.2d 825; Slavitt v. Meader, 107 U.S.App.D.C. 396, 278 F.2d 276.
5. See, e.g., Des Moines Union R. Co. v. District Court, 170 Iowa 568, 153 N.W. 217; Doughty v. Terminal R. Ass'n, 291 S.W.2d 119 (Mo.); Frytez v. Gruchacz, 125 N.J.L. 630, 17 A.2d 541; Reed v. First National Bank, 194 Or. 45, 241 P.2d 109; Moshannon National Bank v. Iron Mountain Ranch Co., 45 Wyo. 265, 18 P.2d 623, 21 P.2d 834; cf. Hartford Accident & Indemnity Co. v. Sorrells, 50 Ariz. 90, 69 P.2d 240; Thompson v. Foote, 199 Ark. 474, 134 S.W.2d 11; Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713.
6. The issue in that case was whether a plaintiff was entitled to recover interest on a refund claim for customs duties paid under protest. In holding that interest for a 29-year period during which the suit remained dormant should not have been allowed, Mr. Justice Matthews, speaking for a unanimous Court, said: 'This delay in prosecution would certainly have justified the court in dismissing the action on its own motion.'
7. In the more populous districts, where calendar congestion has become a severe problem, the District Courts, acting on their own initiative, have from time to time established special call calendars of 'stale' cases for the purpose of dismissing those as to which neither adequate excuse for past delays nor reason for a further continuance appears. See, for example, the local rules of the following District Courts: Alaska Rule 16; Ariz. Rule 14; N.D.Cal. Rule 14; S.D.Cal. Rule 10(d); Colo. Rule 24; Conn. Rule 15; Del. Rule 12; D.C. Rule 13; N.D.Fla. Rule 7; S.D.Fla. Rule 11; N.D.Ga. Rule 13(c); Idaho Rule 8(c); E.D.Ill. Rule 9; N.D.Ill. Gen.Rule 21; N.D.Ind. Rule 10; S.D.Ind. Rule 16; N.D.Iowa Rule 22; S.D.Iowa Rule 22; Kan. Rule 13; E.D.La. Gen.Rule 12; Me. Rule 15; Mass. Rule 12; W.D.Mich. Rule 8; Minn. Rule 3(3); E.D.Mo. Rule 8(g); Neb. Rule 18; Nev. Rule 9(b); N.J. Rule 12; N.M. Rule 13; E.D.N.Y. Gen.Rule 23; N.D.N.Y. Gen.Rule 11; S.D.N.Y. Gen.Rule 23; W.D.N.Y. Gen.Rule 11; N.D.Ohio Rule 6; S.D.Ohio Rule 8; E.D.Okla. Rule 12; E.D.Pa. Rule 18; M.D.Pa. Rule 21-A; S.Dak. Rule 9, § 4; S.D.Tex. Gen.Rule 22; Utah Rule 4(c); E.D.Wash. Rule 23(a); W.D.Wash. Rule 41; N.D.W.Va. Art. II, Rule 8; S.D.W.Va. Rule 8; E.D.Wis. Rule 11; E.D.Wis. Rule 15; Wyo. Rule 14.
8. Petitioner's contention that the District Court could not act in the conceded absence of any local rule covering the situation here is obviously unsound. Federal Rule of Civil Procedure 83 expressly provides that 'in all cases not provided for by rule, the district courts may regulate their practice in any manner not inconsistent with these rules.' In light of what has already been said we find no such inconsistency here.
9. The record shows that this was the 'oldest' case on the District Court's civil docket.
10. Clients have been held to be bound by their counsels' inaction in cases in which the inferences of conscious acquiescence have been less supportable than they are here, and when the consequences have been more serious. See, e.g., United States ex rel. Reid v. Richmond, 2 Cir., 295 F.2d 83, 89-90; Egan v. Teets, 9 Cir., 251 F.2d 571, 577 n. 9; United States v. Sorrentino, 3 Cir., 175 F.2d 721. Surely if a criminal defendant may be convicted because he did not have the presence of mind to repudiate his attorney's conduct in the course of a trial, a civil plaintiff may be deprived of his claim if he failed to see to it that his lawyer acted with dispatch in the prosecution of his lawsuit. And if an attorney's conduct falls substantially below what is reasonable under the circumstances, the client's remedy is against the attorney in a suit for malpractice. But keeping this suit alive merely because plaintiff should not be penalized for the omissions of his own attorney would be visiting the sins of plaintiff's lawyer upon the defendant. Moreover, this Court's own practice is in keeping with this general principle. For example, if counsel files a petition for certiorari out of time, we attribute the delay to the petitioner and do not request an explanation from the petitioner before acting on the petition.
11. The history of the case belies any suggestion that the delay was the fault of the defendant or solely of the district judge who first ruled erroneously on the motion for judgment on the pleadings. After the mandate of the Court of Appeals was filed with the District Court, the trial date that was set was vacated on the plaintiff's motion. Thereafter, the plaintiff failed to answer the defendant's interrogatories from August 17, 1957, until the day before the hearing on the order to show cause why the case should not be dismissed for want of prosecution-which was more than 19 months later. Although the next delay was occasioned by the defendant's motion, it was consented to by the plaintiff and there is no showing whatever that plaintiff ever made any effort to bring the case to trial. In fact, when the defendant submitted further interrogatories, plaintiff again moved to have the time to answer extended. Against this background, it is hardly surprising that the District Court concluded that the failure to appear for a pretrial conference was merely another delaying tactic.
12. Even if the judgment of the Court of Appeals rested on the ground that counsel's 'failure' to attend the pretrial conference sufficed by itself to justify the dismissal, it is our duty, without reaching the broader question, to sustain the District Court on its narrower holding if, as we decide, that holding was correct. E.G., Walling v. General Industries Co., 330 U.S. 545, 547, 67 S.Ct. 883, 884, 91 L.Ed. 1088; Langnes v. Green, 282 U.S. 531, 536-537, 51 S.Ct. 243, 245, 75 L.Ed. 520; United States v. American Railway Express Co., 265 U.S. 425, 435-436, 44 S.Ct. 560, 563, 68 L.Ed. 1087; see Securities & Exchange Comm. v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 459, 87 L.Ed. 626.