Mohamed Ali and Nadia Ali v. A & G Company, Inc. And Saadi Ibrahim

542 F.2d 595, 22 Fed. R. Serv. 2d 522, 1976 U.S. App. LEXIS 6866

• Court: Court of Appeals for the Second Circuit
• Decided: September 29, 1976
• Docket: 1166, 1420, Dockets 76-7040, 76-7186
• Status: Published

Opinions

MANSFIELD, Circuit Judge:

In this diversity suit for personal injuries in the Southern District of New York, Judge Lloyd F. MacMahon, at a pretrial conference of the parties on October 17, 1975, directed that discovery be completed by December 17, 1975, and the case be placed on his ready trial calendar on January 9, 1976. An order signed by the judge and all counsel was entered accordingly, which provided that following the addition of the case to the ready calendar on January 9, 1976, the parties should be ready for trial on short telephonic notice and that failure to comply might “result in the court’s taking appropriate steps to terminate the action.”

On January 8, 1976, well after discovery was supposed to have been finished and only one day before the case was to go on the ready trial calendar, counsel for plaintiffs-appellants requested that trial be delayed because he had not yet completed discovery. The court refused this request, and the case appeared on the ready trial calendar the next day. When the ease came to trial on January 14, 1976, appellants’ counsel advised the court that neither the attorney who was to try the case nor appellants were available. The court then dismissed the case with prejudice for lack of prosecution and later denied appellants’ motion to vacate that dismissal. We affirm.

Dismissal of a case for failure to prosecute lies within the discretion of the district court. Taub v. Hale, 355 F.2d 201 (2d Cir.), cert. denied, 384 U.S. 1007, 86 S.Ct. 1924, 16 L.Ed.2d 1020 rehearing denied, 385 U.S. 924, 87 S.Ct. 225, 17 L.Ed.2d 148 (1966). Here appellants and their counsel were guilty of three separate delinquencies. First, they failed to advise the court of the problem caused by the defendants’ failure to submit to discovery until the eve of trial, long after the date by which discovery was supposed to have been completed. Under Rule 37, F.R.Civ.P., it was appellants’ responsibility to raise the defendants’ lack of cooperation in discovery prior to December 17,1975. Had a timely motion been made, the court might have entered an appropriate order against the defendants and, if they failed to comply, enforced sanctions against them or adjourned trial. But the failure of appellants’ counsel to move until the time when the case was actually to be tried placed the court in an intolerable position.

Secondly, although the trial date was known well in advance and appellants should have arranged their affairs so as to be available for trial, they failed to do so. Lastly, their trial counsel, with similar notice of the trial date, also failed to appear. It is no defense that one of the defendants and his counsel failed to appear at trial. Had appellants appeared at trial, they could have moved for a default judgment against the defendant that did not. The Federal Rules of Civil Procedure should not be construed to render a district court helpless in the face of delays and delinquencies on the part of all parties to a case. '

Our affirmance is not to be construed as a blanket approval of the practice of automatically dismissing a complaint with prejudice for the plaintiff’s failure to appear at trial, as is indicated by the form order used by the trial judge in the present case. The sound exercise of discretion requires the judge to consider and use lesser sanctions in the appropriate case. Here, however, the combination of three different delinquencies on the part of appellants and their trial counsel presented an unusually egregious case in which Judge MacMahon did not abuse his discretion in dismissing the action with prejudice.

Affirmed.