John A. Hyler v. Reynolds Metal Company, a Corporation

Fifth Circuit

John A. Hyler v. Reynolds Metal Company, a Corporation

434 F.2d 1064, 14 Fed. R. Serv. 2d 1149, 1970 U.S. App. LEXIS 6286

Court of Appeals for the Fifth Circuit·Decided November 23, 1970·No. 1064·Published·Cited by 1 cases

Opinion

PER CURIAM:

Appellants complain of error by the district court in the dismissal of their action because of the failure of appellants’ attorneys to appear at a pretrial hearing on February 17, 1970.

A perusal of the record indicates that the district court had previously denied a motion to dismiss on May 19, 1969, by requiring appellants to amend their complaint by “defining clearly and with particularity the class which they seek to represent in the action within thirty days”. Over a period of approximately nine months, and without apparent excuse, appellants failed to amend their complaint as directed by the district *1065 court. The order dismissing the action was thus founded not only on appellants’ failure to appear at the pre-trial conference, but also on their refusal to amend the complaint.

It is well settled that a district court has inherent power to dismiss a case for failure to prosecute and there is no abuse of discretion when counsel fails to appear, at a pre-trial conference and when there is evidence of prior dilatory conduct. Link v. Wabash R. Co., 1962, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734; Provenza v. H. and W. Wrecking Co., 5 Cir., 1970, 424 F.2d 629.

Finding both these elements present in the instant ease, we hold that there was no abuse of discretion by the district court and its decision is hereby

Affirmed.

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PER CURIAM:

Appellants complain of error by the district court in the dismissal of their action because of the failure of appellants’ attorneys to appear at a pretrial hearing on February 17, 1970.

A perusal of the record indicates that the district court had previously denied a motion to dismiss on May 19, 1969, by requiring appellants to amend their complaint by “defining clearly and with particularity the class which they seek to represent in the action within thirty days”. Over a period of approximately nine months, and without apparent excuse, appellants failed to amend their complaint as directed by the district *1065 court. The order dismissing the action was thus founded not only on appellants’ failure to appear at the pre-trial conference, but also on their refusal to amend the complaint.

It is well settled that a district court has inherent power to dismiss a case for failure to prosecute and there is no abuse of discretion when counsel fails to appear, at a pre-trial conference and when there is evidence of prior dilatory conduct. Link v. Wabash R. Co., 1962, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734; Provenza v. H. and W. Wrecking Co., 5 Cir., 1970, 424 F.2d 629.

Finding both these elements present in the instant ease, we hold that there was no abuse of discretion by the district court and its decision is hereby

Affirmed.

John A. Hyler v. Reynolds Metal Company, a Corporation, 434 F.2d 1064, 14 Fed. R. Serv. 2d 1149, 1970 U.S. App. LEXIS 6286 (5th Cir. 1970).

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Opinion

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