Citizens Utilities Company v. The American Telephone and Telegraph Company

595 F.2d 1171, 27 Fed. R. Serv. 2d 613, 1979 U.S. App. LEXIS 15087
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 30, 1979
Docket77-1941
StatusPublished
Cited by46 cases

This text of 595 F.2d 1171 (Citizens Utilities Company v. The American Telephone and Telegraph Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Citizens Utilities Company v. The American Telephone and Telegraph Company, 595 F.2d 1171, 27 Fed. R. Serv. 2d 613, 1979 U.S. App. LEXIS 15087 (9th Cir. 1979).

Opinions

BRIGHT, Circuit Judge.

Appellants, Citizens Utilities Company and its California subsidiary (collectively, Citizens), filed this antitrust action against the appellees, American Telephone & Telegraph Company (AT&T), the Pacific Telephone & Telegraph Company (Pacific) and Bell Telephone Company of Nevada (collectively, Bell), in October 1960. Sixteen years later, this lawsuit had not yet been tried. On January 3, 1977, the district court1 dismissed Citizens’ action on two alternative grounds: (1) want of prosecution by Citizens, under Fed.R.Civ.P. 41(b); and (2) lack of jurisdiction, because the Federal Communications Commission (FCC) possesses either primary or exclusive jurisdiction over the subject matter of the action. Citizens appeals. We affirm the judgment of dismissal.

I. Factual Background.

This action has its genesis in the period 1950-1957, when several disputes arose between Citizens and Bell concerning the division of revenues from “interchanged calls” between their systems, that is, telephone calls passing over interconnecting lines of Citizens and one of the Bell companies.2 Citizens, contending that its return on the use of its facilities for interchanged calls was unreasonably low, sought, among other things, change to a new method of dividing revenues, based upon a study of Citizens’ expenses and investment relating to calls interchanged with Bell. In 1957, appellee Pacific rejected a cost study plan proposed by Citizens. Citizens agreed to a plan proposed by Pacific, but it inserted a clause in the agreement reserving its claims that pri- or divisions of revenue were unfair.

In October 1960, Citizens brought this action under sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2, 15, 26 (1976), alleging that the appellees combined and conspired to fix prices and to discriminate against Citizens by presenting a united front at negotiations with Citizens regarding the division of revenues from interchanged calls. Citizens has supplemented its complaint from time to time to allege continuing conspiracy and damages.

A detailed summary of the sixteen-year record of proceedings in this case from its filing until its dismissal in December 1976 would serve no useful purpose here. A few matters, however, deserve mention.

The parties conducted extensive discovery between 1961 and 1971. However, the record fails to show any substantial activity by either party during several periods, for example, from June 1961 to February 1963, and most of 1965 and 1969.3

[1173]*1173Over this eleven-year period from 1961— 1971, Citizens’ efforts to speed up the discovery process consisted of four motions for a preliminary pretrial conference aimed at establishing a schedule for completion of discovery, filed in May 1966, November 1968, August 1970, and July 1971.4 Bell resisted Citizens’ 1966 motion, contending that it was far from completion of discovery, and that motion was denied. The 1968 motion was also denied, for reasons which do not appear in the record. Citizens withdrew its 1970 motion after the parties stipulated to arrange a later pretrial conference and to “work out a timetable for the completion of discovery * * *Bell effectively joined in Citizens’ 1971 motion for a pretrial conference, though it also stated its intention to move for summary judgment on the ground that the federal courts lacked jurisdiction of the action.

On August 27, 1971, in accordance with the parties’ stipulation, United States Senior District Judge George B. Harris entered a pretrial order establishing a briefing and hearing schedule for Bell’s motion for summary judgment. Proceedings concerning two successive motions by Bell for summary judgment occupied the parties until April 1973. Judge Harris denied both of those motions.

The parties eventually stipulated to set the action for trial on March 18, 1974. However, in early March, Judge Harris advised the parties that because of a calendar problem he could not preside over the trial on March 18. Judge Harris suggested that the parties consent to a trial before a magistrate or that a new judge be assigned. Bell insisted upon trial before a judge, and the district court ordered the trial “off calendar.”

Meanwhile, on February 20, 1974, Citizens’ president, Richard Rosenthal, wrote to Citizens’ lead attorney, Joseph F. Alioto, suspending his authority to act on behalf of Citizens. Citizens states in its brief that its dispute with Alioto resulted from his time-consuming political activities, “depriving Citizens of the [legal] services for which it had contracted.”5. Alioto filed a motion to withdraw as Citizens’ counsel on April 5, 1974.

The récord shows no further activity in the case until more than two years later, on June 4, 1976, when Citizens’ present counsel filed their appearance. Citizens states that it spent that two-year interval searching for new counsel. During that period, no particular district judge had responsibility for the case. However, within two weeks of a request by Citizens’ new counsel for a status conference, the case was assigned to United States District Judge Warren J. Ferguson.

At a status conference on September 20, 1976, Bell moved to dismiss the action under Fed.R.Civ.P. 41(b) for Citizens’ failure to prosecute.6 Following a hearing on December 17, 1976, Judge Ferguson granted Bell’s motion to dismiss, stating that from his reading of the record “16 years is too long” [1174]*1174for this case, and such excessive delay “is simply a matter of pure procrastination on behalf of the plaintiff * * *Judge Ferguson also held in the alternative that jurisdiction in the case lay in the regulatory agencies and not in the court. In his unpublished order denying Citizens’ motion for reconsideration, filed on April 1, 1977, Judge Ferguson further stated:

16 years have passed since this action was instituted; the events at issue stretch back 25 to 30 years. Numerous witnesses have died; memories have faded. Actual prejudice, not merely presumed prejudice, has resulted. Here we do not have a single 16 year spell of inaction, but rather spaces throughout the course of litigation where procrastination, for whatever reason, slowed proceedings. Plaintiffs have an obligation to press forward with litigation, even if defendants in part slow their progress. They failed to do that here.

Final judgment of dismissal was entered on January 14, 1977. Citizens brought this timely appeal from the judgment and the district court’s refusal to reconsider, contending that the district court abused its discretion under Rule 41(b) and erred in concluding that it lacked jurisdiction.

II. The Dismissal for Failure to Prosecute.

A dismissal under Rule 41(b) for failure to prosecute will be reversed only for abuse of discretion. E. g., Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976); Alexander v. Pacific Maritime Association,

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Bluebook (online)
595 F.2d 1171, 27 Fed. R. Serv. 2d 613, 1979 U.S. App. LEXIS 15087, Counsel Stack Legal Research, https://law.counselstack.com/opinion/citizens-utilities-company-v-the-american-telephone-and-telegraph-company-ca9-1979.