ROGER D. FOLEY, Jr., District Judge.
Beginning in 1957, the appellant, appearing without counsel, brought three successive separate actions against Frank Sinatra and others, in the Court from which this appeal is taken, alleging infringement of copyrights. The three cases, brought against substantially the same defendants, each came on before a different District Judge, and in each instance motions to dismiss were granted. There has not been a trial on the merits. From the record before us, the alleged acts of infringement appear to be substantially the same in each case.
The complaint filed in the initial action, Civil No. 1161-57 PH, was dismissed with prejudice and without leave to amend for, among other grounds, failure to state a claim upon which relief could be granted. That judgment of dismissal was entered November 21, 1957.
The second action, Civil No. 43-59 TC, was filed in January of 1959, and was terminated by an order of dismissal without leave to amend, but without prejudice on June 29, 1959. Two of the grounds of
dismissal were the failure of the complaint to state a claim upon which relief could be granted and that the complaint was unintelligible.
The case before us was commenced on December 2, 1980. There followed a number of defense motions and on January 9, 1961, the appellant was ordered to file a supplemental pleading alleging in detail the infringements charged as to each defendant. Appellant filed a supplemental complaint consisting of some 67 pages. Defense motions, previously filed, were heard and the complaint and supplemental complaint were dismissed.
At this juncture, some four years from the commencement of the first case, for the first time, appellant appeared through counsel. So represented, appellant filed an amended complaint on March 7, 1961. Defense motions were considered at a hearing held April 18, 1961.
The transcript of April 18, 1961, reflects that over strong objections from appellees, who complained of being harassed by seemingly endless and expensive litigation, the Court below, after a painstaking examination of the record of this case and apparently of the two former cases, offered appellant another opportunity to attempt to state a claim that could be understood and tried. Appellant made the selection of both the picture and the defendants. Appellant suggested, and the Court ordered, that he file a second amended complaint, limiting the subject matter to the one motion picture “HIGH SOCIETY,” and limiting the defendants to the persons associated with that picture, to wit: Frank Sinatra, Henry Sanicola, William Morris Agency, Metro-Goldwyn-Mayer, Inc., and Capitol Records, Inc.
On May 26, 1961, appellant filed “AMENDED COMPLAINT II FOR INFRINGEMENT OF COPYRIGHT AND' UNFAIR COMPETITION.”
The defendants named in the Amended Complaint II, filed May 26, 1961, included:
“Frank Sinatra, Henry Sanicola, William Morris Agency, Inc., Dore Schary, Sol Siegel, Metro-Goldwyn-Mayer, Inc., Samuel Goldwyn, Rudolph Monta, Joseph Pasternak,
Harry Lillis Crosby, George Murphy, Cole Porter, John Patrick, Sammy Cahn, Nicholas Brodzsky, Helen Rose, George Wells, June Allison, Lauren Bacall, Gregory Peck, Brod-erick Crawford, George Seaton, Gordon Jenkins, Capitol Records, Inc., Warner Brothers Pictures, Inc., National Broadcasting ■ Company, Inc., Columbia Broadcasting System, Inc., American Broadcasting Company-Paramount Theatres, Inc., Lig-gett & Myers Tobacco Company, Inc., Bulova Watch Company, General Motors Corporation, Decca Records, Inc.”
Paragraph VIII of Amended Complaint II begins as follows:
“After July 12, 1955, defendants conspired and confederated, combined, concerted and agreed to infringe, and they have infringed said copyrights by copying and appropriating from manuscript and printed copies thereof and private letters of plaintiff referring thereto, submitted and communicated to defendants and retained in the possession of the defendants, and by marketing, exhibiting and selling to the general public against the will and secretly and without the consent, authority or license of the plaintiff, copyright proprietor, and by using the language, dialogue, wordings, writing, sequence, story, songs, lyrics, scenes, settings, costumes, characters, sense substance, point, purpose, expression and effect of the plaintiff’s copyrighted writings and private letters the motion pictures: “High Society,” “The Opposite Sex,” “Designing Woman,” “Wings of Victory,” “The Joker is Wild,” or “ The Joker,” “Royal Wedding,” “Gigi,” “Say One for Methe musical “Manhattan Tower;” the programs: “Entertainment Programs, National Conventions of 1956,” the “Democratic Fund Raising Program, October 20, 1956,” the “Frank Sinatra Show 1957-58” and the same May, 1960, and November, 1960, the “Bing Crosby Show,” October, 1958 and September, 1959; the record album “Lover’s Hour;” the songs: “11th Hour Melody” and “Mr. Success;” the play: “The Defender ;” press releases; the “Academy Awards Ceremonies,” 1957, 1958, 1959; broadcast: “Ed Sullivan Show,” February, 1959, and re-performance of the motion pictures: “High Society,” March 22-28, 1961, “Designing Woman,” April 5-11, 1961, and re-broadcasts from the motion picture “High Society,” March 5, 1961 and May 2, 1961, by and in the following manner and means:”
On June 27, 1961, after defense motions had been filed, a hearing was held.
On July 12, 1961, the Court below entered its order “Order Granting Motion to Dismiss and Judgment of Dismissal.”
This Order and Judgment of Dismissal, the basis of this appeal, sets forth ten separate grounds in support of the Court’s decision. Affirmance of any one or more of these grounds will be disposi-tive of the appeal.
Perhaps the most clearly apparent ground for dismissal relied upon by the District Court and that upon which we base our holding is appellant’s failure to comply with the order of April 18, 1961, limiting the subject matter to one motion picture and the persons associated with that picture.
The question before this Court is whether, based upon the foregoing facts taken from the record before us as designated by the parties hereto, the District Court, as a matter of law, abused his discretion in dismissing Amended Complaint II.
Both the state and federal courts have almost universally held or recognized that there is inherent power in the courts, in the interest of the orderly administration of justice, to dismiss for disobedience of court orders. Refior v. Lansing Drop Forge Co., 6th Cir., 124 F.2d 440, certiorari denied, 316 U.S. 671, 62 S.Ct. 1047, 86 L.Ed. 1746.
This is not a situation, however, where specific authorization is lacking. Rule 41(b), F.R.Civ.P., provides:
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ROGER D. FOLEY, Jr., District Judge.
Beginning in 1957, the appellant, appearing without counsel, brought three successive separate actions against Frank Sinatra and others, in the Court from which this appeal is taken, alleging infringement of copyrights. The three cases, brought against substantially the same defendants, each came on before a different District Judge, and in each instance motions to dismiss were granted. There has not been a trial on the merits. From the record before us, the alleged acts of infringement appear to be substantially the same in each case.
The complaint filed in the initial action, Civil No. 1161-57 PH, was dismissed with prejudice and without leave to amend for, among other grounds, failure to state a claim upon which relief could be granted. That judgment of dismissal was entered November 21, 1957.
The second action, Civil No. 43-59 TC, was filed in January of 1959, and was terminated by an order of dismissal without leave to amend, but without prejudice on June 29, 1959. Two of the grounds of
dismissal were the failure of the complaint to state a claim upon which relief could be granted and that the complaint was unintelligible.
The case before us was commenced on December 2, 1980. There followed a number of defense motions and on January 9, 1961, the appellant was ordered to file a supplemental pleading alleging in detail the infringements charged as to each defendant. Appellant filed a supplemental complaint consisting of some 67 pages. Defense motions, previously filed, were heard and the complaint and supplemental complaint were dismissed.
At this juncture, some four years from the commencement of the first case, for the first time, appellant appeared through counsel. So represented, appellant filed an amended complaint on March 7, 1961. Defense motions were considered at a hearing held April 18, 1961.
The transcript of April 18, 1961, reflects that over strong objections from appellees, who complained of being harassed by seemingly endless and expensive litigation, the Court below, after a painstaking examination of the record of this case and apparently of the two former cases, offered appellant another opportunity to attempt to state a claim that could be understood and tried. Appellant made the selection of both the picture and the defendants. Appellant suggested, and the Court ordered, that he file a second amended complaint, limiting the subject matter to the one motion picture “HIGH SOCIETY,” and limiting the defendants to the persons associated with that picture, to wit: Frank Sinatra, Henry Sanicola, William Morris Agency, Metro-Goldwyn-Mayer, Inc., and Capitol Records, Inc.
On May 26, 1961, appellant filed “AMENDED COMPLAINT II FOR INFRINGEMENT OF COPYRIGHT AND' UNFAIR COMPETITION.”
The defendants named in the Amended Complaint II, filed May 26, 1961, included:
“Frank Sinatra, Henry Sanicola, William Morris Agency, Inc., Dore Schary, Sol Siegel, Metro-Goldwyn-Mayer, Inc., Samuel Goldwyn, Rudolph Monta, Joseph Pasternak,
Harry Lillis Crosby, George Murphy, Cole Porter, John Patrick, Sammy Cahn, Nicholas Brodzsky, Helen Rose, George Wells, June Allison, Lauren Bacall, Gregory Peck, Brod-erick Crawford, George Seaton, Gordon Jenkins, Capitol Records, Inc., Warner Brothers Pictures, Inc., National Broadcasting ■ Company, Inc., Columbia Broadcasting System, Inc., American Broadcasting Company-Paramount Theatres, Inc., Lig-gett & Myers Tobacco Company, Inc., Bulova Watch Company, General Motors Corporation, Decca Records, Inc.”
Paragraph VIII of Amended Complaint II begins as follows:
“After July 12, 1955, defendants conspired and confederated, combined, concerted and agreed to infringe, and they have infringed said copyrights by copying and appropriating from manuscript and printed copies thereof and private letters of plaintiff referring thereto, submitted and communicated to defendants and retained in the possession of the defendants, and by marketing, exhibiting and selling to the general public against the will and secretly and without the consent, authority or license of the plaintiff, copyright proprietor, and by using the language, dialogue, wordings, writing, sequence, story, songs, lyrics, scenes, settings, costumes, characters, sense substance, point, purpose, expression and effect of the plaintiff’s copyrighted writings and private letters the motion pictures: “High Society,” “The Opposite Sex,” “Designing Woman,” “Wings of Victory,” “The Joker is Wild,” or “ The Joker,” “Royal Wedding,” “Gigi,” “Say One for Methe musical “Manhattan Tower;” the programs: “Entertainment Programs, National Conventions of 1956,” the “Democratic Fund Raising Program, October 20, 1956,” the “Frank Sinatra Show 1957-58” and the same May, 1960, and November, 1960, the “Bing Crosby Show,” October, 1958 and September, 1959; the record album “Lover’s Hour;” the songs: “11th Hour Melody” and “Mr. Success;” the play: “The Defender ;” press releases; the “Academy Awards Ceremonies,” 1957, 1958, 1959; broadcast: “Ed Sullivan Show,” February, 1959, and re-performance of the motion pictures: “High Society,” March 22-28, 1961, “Designing Woman,” April 5-11, 1961, and re-broadcasts from the motion picture “High Society,” March 5, 1961 and May 2, 1961, by and in the following manner and means:”
On June 27, 1961, after defense motions had been filed, a hearing was held.
On July 12, 1961, the Court below entered its order “Order Granting Motion to Dismiss and Judgment of Dismissal.”
This Order and Judgment of Dismissal, the basis of this appeal, sets forth ten separate grounds in support of the Court’s decision. Affirmance of any one or more of these grounds will be disposi-tive of the appeal.
Perhaps the most clearly apparent ground for dismissal relied upon by the District Court and that upon which we base our holding is appellant’s failure to comply with the order of April 18, 1961, limiting the subject matter to one motion picture and the persons associated with that picture.
The question before this Court is whether, based upon the foregoing facts taken from the record before us as designated by the parties hereto, the District Court, as a matter of law, abused his discretion in dismissing Amended Complaint II.
Both the state and federal courts have almost universally held or recognized that there is inherent power in the courts, in the interest of the orderly administration of justice, to dismiss for disobedience of court orders. Refior v. Lansing Drop Forge Co., 6th Cir., 124 F.2d 440, certiorari denied, 316 U.S. 671, 62 S.Ct. 1047, 86 L.Ed. 1746.
This is not a situation, however, where specific authorization is lacking. Rule 41(b), F.R.Civ.P., provides:
“For failure of the plaintiff * * to comply with * * * 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.”
We acknowledge the long standing practice of dismissing without prejudice when dismissing a complaint prior to reaching the merits. Swan Land & Cattle Co. v. Frank, 1893, 148 U.S. 603, 13 S.Ct. 691, 37 L.Ed. 577. Also we are aware that dismissal of a party’s cause of action is a severe and drastic measure.
In the instant case, however, there are numerous factors which, when
considered together, justify as a matter of law, deviation from the general rule and further act in mitigation of the apparent harshness of the order.
The plaintiff here is not the victim of any error or inadvertence of his attorney. On the contrary, appellant chose to represent himself during the prior cases and during a substantial portion of this case.
Secondly, in view of the history of this litigation, the numerous amendments allowed, the opportunities given appellant to plead, and the exceedingly generous consideration and patience afforded by the District Court, it would be an understatement to say that appellant has not had his day in court. Olsen v. Muskegon Piston Ring Company, 6 Cir., 1941, 117 F.2d 163.
Also to be considered are the rights of the defendants. Certainly they have been prejudiced and put to considerable expense. It becomes the obligation of the Court to determine at what point plaintiff would be foreclosed from further harassing defendants with confused and confounding complaints. We do not attempt to identify the exact point in the proceedings below where the Court would have become justified as a matter of law, in exercising his discretion to dismiss. Such is not the question before us. Suffice it to say that the point had been reached.
Finally, there is not the slightest suggestion in the record that appellant’s failure to amend in accordance with the order was the result of misunderstanding or inadvertence. It is clear, upon examination, that Amended Complaint II was the result of a conscious and deliberate decision not to abandon the form and content of the prior complaints.
We recognize, as did the District Court, that appellant conceivably had a cause of action. We also agree that the District Court, as well as the defendants, was entitled to have the claim or claims stated in a justiciable manner. Appellant chose not to meet the requirement which was not only reasonable but was absolutely essential to the eventual termination of the litigation.
The situation is not unlike Package Machinery Company v. Hayssen Manufacturing Company, 7 Cir., 1959, 266 F.2d 56, where it was stated, at page 57:
“We are convinced that plaintiff’s unyielding determination not to define the trade secrets which it claimed were pirated by defendants was solidly arrayed against the almost inexhaustible patience of the district judge, who insisted that plaintiff comply with the court’s orders. For a considerable period of time, plaintiff’s determination prevailed. But, fortunately, the court overcame the inertia in the situation created by plaintiff; it was able to protect itself by invoking rule 41(b) which authorized it to enter the order of dismissal with prejudice, of which plaintiff now complains. We hold that this order was properly entered and it is hereby affirmed.”
Reference is also made to Blake v. DeVilbiss Co., 6 Cir., 1941, 118 F.2d 346, and to Rossi v. McCloskey and Company, 1957, 149 F.Supp. 638.
In conclusion, we hold that the trial judge acted well within the scope of his discretionary powers granted under rule 41(b) and inherent in his office.
We do not deem it necessary to pass upon the sufficiency of the nine remaining grounds upon which the trial court relied in its judgment of dismissal.
Affirmed.