Ruby H. Harris v. Reginald Callwood & Daisy Callwood

Sixth Circuit

Ruby H. Harris v. Reginald Callwood & Daisy Callwood

844 F.2d 1254, 10 Fed. R. Serv. 3d 1041, 1988 U.S. App. LEXIS 5434, 1988 WL 34923

CourtCourt of Appeals for the Sixth Circuit

DecidedApril 21, 1988

Docket86-4001

StatusPublished

Cited by144 cases

This text of 844 F.2d 1254 (Ruby H. Harris v. Reginald Callwood & Daisy Callwood) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ruby H. Harris v. Reginald Callwood & Daisy Callwood, 844 F.2d 1254, 10 Fed. R. Serv. 3d 1041, 1988 U.S. App. LEXIS 5434, 1988 WL 34923 (6th Cir. 1988).

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Opinions

MERRITT, Circuit Judge.

The District Court dismissed Ruby Harris’ pro se breach of contract action under Federal Rule of Civil Procedure 41(b) for failure to comply with the Court’s pretrial order to appear for a final conference prior to trial.

Judge Lambros’ July 11, 1986, order¹ indicates that a conference would take place on October 14, 1986. Harris, who is 79, argues that she never received a copy of this order and therefore she did not know her appearance was required in court on October 14. Harris states that beginning in June 1986, she on numerous occasions telephoned the court clerk’s office and spoke to a Mrs. Artz about the status of her case. Harris began keeping notes of her calls in late August 1986. She explains that each time she called, Artz told her to wait, that there was no news about whether the judge had reinstated her case. In late September or early October, Harris asked Artz in person about the case and Artz told her to wait three weeks and then check the file again. In the meantime, on October 14, the date of the conference, Harris received a call from the clerk’s office asking why she was not in court. Harris rushed to court but she was too late. Judge Lambros had already dismissed her case. There is nothing in the record that disputes these contentions.

Judge Lambros’ July 11 order does not specifically state that Harris, a pro se litigant, is required to appear in court on October 14. Nor does it indicate in any manner that failure to appear in court would result in dismissal of the case.

In Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1961), Justice Harlan established that courts have the inherent power “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.” Plaintiff’s counsel, who had notice of a pretrial conference, deliberately did not attend the conference, had previously been dilatory in prosecuting the case, and did not file a motion for reconsideration justifying his conduct. Id. at 627-28, 82 S.Ct. at 1387. In affirming dismissal, the Court stated:

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 (1944) ].... 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.

[1256]*1256370 U.S. at 632, 82 S.Ct. at 1389-90. The Court narrowly limited its holding to the facts and circumstances of the particular case. Id. at 635, 82 S.Ct. at 1391.

In the Sixth Circuit, we have frequently reversed district courts for dismissing cases because litigants failed to appear or to comply with pretrial orders when the district courts did not put the derelict parties on notice that further noncompliance would result in dismissal. See, e.g., Carter v. City of Memphis, 636 F.2d 159, 161 (1980)(penalty of dismissal applies only in “extreme situations” of deliberate delay or “contumacious conduct”); Holt v. Pitts, 619 F.2d 558, 562 (1980)(same); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (1985)(same); Bishop v. Cross, 790 F.2d 38, 39 (1986) (dismissal requires a “degree of willfulness, bad faith or contumacious conduct”). See also Note, Dismissal for Failure to Attend a Pretrial Conference and the Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819, 830 (1963). But see Coston v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir.1986) (repeated failure of counsel to appear both at trial proceedings and on appeal without excuse justifies dismissal). Other circuits explicitly require “adequate notice that the Court was contemplating the drastic measures” of sua sponte dismissal in the absence of bad faith or other similar egregious conduct. Saylor v. Bastedo, 623 F.2d 230, 238-39 (2nd Cir.1980) (Friendly, J.) (procedural requirement for sua sponte dismissal implicit in Link not met where counsel never given “reason to think” that court might dismiss case). Accord Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 276-77 (7th Cir.1986) (district court should warn pro se litigants of possible consequences of neglect if it intends to sanction with dismissal); McKelvey v. AT & T Technologies, Inc., 789 F.2d 1518, 1520-21 (11th Cir.1986)(lack of notice of court order does not constitute “extreme circumstances” necessary to impose drastic remedy of dismissal); Camps v. C & P Tel. Co., 692 F.2d 120, 125 (D.C.Cir.1981)(court should “acquaint pro se litigants with the sort of risk tardiness creates when dismissal is the penalty contemplated”); Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir.1980)(abuse of discretion to dismiss plaintiffs case where, inter alia, “court has not warned that failure to attend will create risk of dismissal”).

From these cases we extract the principle that in the absence of notice that dismissal is contemplated a district court should impose a penalty short of dismissal unless the derelict party has engaged in “bad faith or contumacious conduct.” In the case before us there was no such notice and no finding of bad faith, and there was a motion to reconsider justifying the pro se litigant’s failure to appear at the conference. Nothing in the record disputes the facts she asserted in justification for her failure to attend the conference. Accordingly, the judgment of the District Court dismissing this case under Rule 41(b) is reversed and the case remanded for further proceedings.

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MERRITT, Circuit Judge.

The District Court dismissed Ruby Harris’ pro se breach of contract action under Federal Rule of Civil Procedure 41(b) for failure to comply with the Court’s pretrial order to appear for a final conference prior to trial.

Judge Lambros’ July 11, 1986, order¹ indicates that a conference would take place on October 14, 1986. Harris, who is 79, argues that she never received a copy of this order and therefore she did not know her appearance was required in court on October 14. Harris states that beginning in June 1986, she on numerous occasions telephoned the court clerk’s office and spoke to a Mrs. Artz about the status of her case. Harris began keeping notes of her calls in late August 1986. She explains that each time she called, Artz told her to wait, that there was no news about whether the judge had reinstated her case. In late September or early October, Harris asked Artz in person about the case and Artz told her to wait three weeks and then check the file again. In the meantime, on October 14, the date of the conference, Harris received a call from the clerk’s office asking why she was not in court. Harris rushed to court but she was too late. Judge Lambros had already dismissed her case. There is nothing in the record that disputes these contentions.

Judge Lambros’ July 11 order does not specifically state that Harris, a pro se litigant, is required to appear in court on October 14. Nor does it indicate in any manner that failure to appear in court would result in dismissal of the case.

In Link v. Wabash Railroad Co., 370 U.S. 626, 630, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1961), Justice Harlan established that courts have the inherent power “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.” Plaintiff’s counsel, who had notice of a pretrial conference, deliberately did not attend the conference, had previously been dilatory in prosecuting the case, and did not file a motion for reconsideration justifying his conduct. Id. at 627-28, 82 S.Ct. at 1387. In affirming dismissal, the Court stated:

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 (1944) ].... 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.

[1256]*1256370 U.S. at 632, 82 S.Ct. at 1389-90. The Court narrowly limited its holding to the facts and circumstances of the particular case. Id. at 635, 82 S.Ct. at 1391.

In the Sixth Circuit, we have frequently reversed district courts for dismissing cases because litigants failed to appear or to comply with pretrial orders when the district courts did not put the derelict parties on notice that further noncompliance would result in dismissal. See, e.g., Carter v. City of Memphis, 636 F.2d 159, 161 (1980)(penalty of dismissal applies only in “extreme situations” of deliberate delay or “contumacious conduct”); Holt v. Pitts, 619 F.2d 558, 562 (1980)(same); Patterson v. Township of Grand Blanc, 760 F.2d 686, 688 (1985)(same); Bishop v. Cross, 790 F.2d 38, 39 (1986) (dismissal requires a “degree of willfulness, bad faith or contumacious conduct”). See also Note, Dismissal for Failure to Attend a Pretrial Conference and the Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819, 830 (1963). But see Coston v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir.1986) (repeated failure of counsel to appear both at trial proceedings and on appeal without excuse justifies dismissal). Other circuits explicitly require “adequate notice that the Court was contemplating the drastic measures” of sua sponte dismissal in the absence of bad faith or other similar egregious conduct. Saylor v. Bastedo, 623 F.2d 230, 238-39 (2nd Cir.1980) (Friendly, J.) (procedural requirement for sua sponte dismissal implicit in Link not met where counsel never given “reason to think” that court might dismiss case). Accord Schilling v. Walworth County Park & Planning Comm’n, 805 F.2d 272, 276-77 (7th Cir.1986) (district court should warn pro se litigants of possible consequences of neglect if it intends to sanction with dismissal); McKelvey v. AT & T Technologies, Inc., 789 F.2d 1518, 1520-21 (11th Cir.1986)(lack of notice of court order does not constitute “extreme circumstances” necessary to impose drastic remedy of dismissal); Camps v. C & P Tel. Co., 692 F.2d 120, 125 (D.C.Cir.1981)(court should “acquaint pro se litigants with the sort of risk tardiness creates when dismissal is the penalty contemplated”); Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir.1980)(abuse of discretion to dismiss plaintiffs case where, inter alia, “court has not warned that failure to attend will create risk of dismissal”).

From these cases we extract the principle that in the absence of notice that dismissal is contemplated a district court should impose a penalty short of dismissal unless the derelict party has engaged in “bad faith or contumacious conduct.” In the case before us there was no such notice and no finding of bad faith, and there was a motion to reconsider justifying the pro se litigant’s failure to appear at the conference. Nothing in the record disputes the facts she asserted in justification for her failure to attend the conference. Accordingly, the judgment of the District Court dismissing this case under Rule 41(b) is reversed and the case remanded for further proceedings.

¹

. On April 23, 1986, Judge Lambros dismissed without prejudice Harris’ case because of failure to obtain new counsel and further prosecute the case, allowing 60 days for reinstatement. Harris motioned the Court- for reinstatement of her case in June. Judge Lambros' July 11 order granting Harris’ reinstatement motion states:

Plaintiff has filed an unopposed motion to reinstate this action. This motion is hereby granted. The parties in this case shall abide by the following pretrial schedule:

—all discovery shall be concluded within sixty (60) days of the date of this order

—all dispositive motions shall be made within thirty (30) days from the close of discovery

—a final settlement conference shall be held at 10:00 a.m. on October 14, 1986 in Room 106, United States Courthouse, Cleveland, Ohio.

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844 F.2d 1254, 10 Fed. R. Serv. 3d 1041, 1988 U.S. App. LEXIS 5434, 1988 WL 34923, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruby-h-harris-v-reginald-callwood-daisy-callwood-ca6-1988.

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