Sam Provenza v. H & W Wrecking Company

424 F.2d 629, 1970 U.S. App. LEXIS 9960

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 6, 1970
• Docket: 28588
• Status: Published

Opinion

PER CURIAM:

Appellants, Provenza and S. and H. Developments, Inc., brought suit under 42 U.S.C.A. § 1983 for damages for an alleged deprivation of civil rights. Neither appellants nor their counsel diligently prosecuted the case and when neither appeared for a pre-trial conference the District Judge, sua sponte, dismissed the case. We affirm. 1

It appears that the case had been pending for two years and nine months. Appellants had employed three different lawyers to represent them. They were given seven extensions of time to obtain new counsel and the District Court permitted appellants to proceed pro se. Notice was given that the pre-trial was set for February 10, 1969, and the trial was set one month later. Appellants and their counsel failed to appear. Finding that the protracted delay and non-appearance of appellants were occasioned by their misconduct the suit was dismissed for want of diligent prosecution.

A District Court has inherent power to dismiss a case for failure to prosecute. It may exercise its sound discretion to do so 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.

We find no abuse of discretion here.

Affirmed.

1 . Pursuant to Rule IS of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804, Part I; and Huth v. Southern Pacific Company, 5 Cir. 1969, 417 F.2d 526, Part I.