More than six years after institution of this diversity of
citizenship action by petitioner in a Federal District Court to
recover damages for personal injuries sustained in a collision
between petitioner's automobile and one of respondent's trains,
more than three years after petitioner had finally prevailed
against respondent's motion for judgment on the pleadings, and
after two fixed trial dates had been postponed, the Court, on
September 29, 1960, scheduled a pretrial conference to be held in
Hammond, Ind., on October 12, 1960, at 1:00 p.m., and notified
counsel for both sides. During the morning of October 11,
petitioner's counsel telephoned respondent's counsel from
Indianapolis that he expected to be at the pretrial conference. At
about 10:45 a.m. on October 12, petitioner's counsel telephoned the
judge's secretary to tell the judge that he was otherwise engaged
in Indianapolis, that he could not be in Hammond by 1:00 o'clock;
but that he would be there on the afternoon of October 13 or any
time on October 14, if the pretrial conference could be reset. When
petitioner's counsel failed to appear at the pretrial conference,
the Court, acting
sua sponte, reviewed the history of the
case, found that petitioner's counsel had failed to indicate any
reasonable excuse for his nonappearance, and dismissed the action
"for failure of the plaintiff's counsel to appear at the pretrial,
for failure to prosecute this action."
Held: the judgment is affirmed. Pp.
370 U. S.
627-636.
(a) The long recognized inherent power of Federal District
Courts, acting on their own initiative, to dismiss cases that have
remained dormant because of the inaction or dilatoriness of the
parties seeking relief has not been restricted by Federal Rule of
Civil Procedure 41(b) to cases in which the defendant moves for
dismissal. Pp.
370 U. S.
629-632.
(b) The circumstances here were such as to dispense with the
necessity for advance notice and hearing before dismissing the
case. Pp.
370 U. S.
632-633.
(c) Petitioner was bound by his lawyer's conduct on the basis of
which the action was dismissed. Pp.
370 U. S.
633-634.
Page 370 U. S. 627
(d) On the record in this case, it cannot be said that the
District Court's dismissal of this action for failure to prosecute
amounted to an abuse of discretion. Pp.
370 U. S.
633-636.
291 F.2d 542, affirmed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner challenges, from the standpoint of both power and
discretion, the District Court's
sua sponte dismissal of
this diversity negligence action under circumstances that
follow.
The action, growing out of a collision between petitioner's
automobile and one of respondent's trains, was commenced on August
24, 1954. Some six years later, and more than three years after
petitioner had finally prevailed on respondent's motion for
judgment on the pleadings (during which time two fixed trial dates
had been postponed), [
Footnote
1] the District Court, on September 29, 1960, duly notified
counsel for each side of the scheduling of a pretrial conference to
be held at the courthouse in Hammond, Indiana, on October 12, 1960
at 1 p.m. During the preceding morning, October 11, petitioner's
counsel telephoned respondent's lawyer from Indianapolis, stating
that "he was doing some work on some papers," that he expected to
be at the pretrial conference, but that he might not attend the
taking of a deposition of the plaintiff scheduled for the same day.
At about 10:45 on the morning of October 12, petitioner's counsel
telephoned the
Page 370 U. S. 628
Hammond courthouse from Indianapolis (about 160 miles away),
and, after asking for the judge, who then was on the bench,
requested the judge's secretary to convey to him this message:
"that he [counsel] was busy preparing papers to file with the
[Indiana] Supreme Court," that
"he wasn't actually engaged in argument, and that he couldn't be
here by 1:00 o'clock, but he would be here either Thursday
afternoon [October 13] or any time Friday [October 14] if it [the
pretrial conference] could be reset."
When petitioner's counsel did not appear at the pretrial
conference, the District Court, after reviewing the history of the
case [
Footnote 2] and finding
that counsel had failed
Page 370 U. S. 629
"to indicate . . . a reasonable reason" for his nonappearance,
dismissed the action "for failure of the plaintiff's counsel to
appear at the pretrial, for failure to prosecute this action." The
court, acting two hours after the appointed hour for the
conference, stated that the dismissal was in the "exercise [of] its
inherent power." The Court of Appeals affirmed by a divided vote.
291 F.2d 542. We granted certiorari. 368 U.S. 918.
I
The authority of a federal trial court to dismiss a plaintiff's
action with prejudice because of his failure to prosecute cannot
seriously be doubted. [
Footnote
3] The power to invoke this sanction is necessary in order to
prevent undue delays in the disposition of pending cases and to
avoid congestion
Page 370 U. S. 630
in the calendars of the District Courts. The power is of ancient
origin, having its roots in judgments of
non-suit and
non prosequitur entered at common law,
e.g., 3
Blackstone, Commentaries (1768) 295-296, and dismissals for want of
prosecution of bills in equity,
e.g., id. at 451. It has
been expressly recognized in Federal Rule of Civil Procedure 41(b),
which provides, in pertinent part:
"(b) Involuntary Dismissal: Effect Thereof. For failure of the
plaintiff to prosecute or to comply with these rules or 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."
Petitioner contends that the language of this Rule, by negative
implication, prohibits involuntary dismissals for failure of the
plaintiff to prosecute except upon motion by the defendant. In the
present case, there was no such motion.
We do not read Rule 41(b) as implying any such restriction.
Neither the permissive language of the Rule -- which merely
authorizes a motion by the defendant -- nor its policy requires us
to conclude that it was the purpose of the Rule to abrogate the
power of courts, 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. The
authority of a court to dismiss
sua sponte for lack of
prosecution has generally been considered an "inherent power,"
governed not by rule or statute, but by the control necessarily
vested in courts to manage their own affairs so as to
Page 370 U. S. 631
achieve the orderly and expeditious disposition of cases.
[
Footnote 4] That it has long
gone unquestioned is apparent not only from the many state court
decisions sustaining such dismissals, [
Footnote 5] but even from language in this Court's opinion
in
Redfield v. Ystalyfera Iron Co., 110 U.
S. 174,
110 U. S. 176.
[
Footnote 6] It also has the
sanction of wide usage among the District Courts. [
Footnote 7] It would require a much clearer
expression of
Page 370 U. S. 632
purpose than Rule 41(b) provides for us to assume that it was
intended to abrogate so well acknowledged a proposition.
Nor does the absence of notice as to the possibility of
dismissal or the failure to hold an adversary hearing necessarily
render such a dismissal void. 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,
321 U. S. 246.
But this does not mean that every order entered without notice and
a preliminary adversary hearing offends due process. 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. The circumstances here were such
as to dispense with the necessity for advance notice and
hearing.
In addition, the availability of a corrective remedy such as is
provided by Federal Rule of Civil Procedure 60(b) -- which
authorizes the reopening of cases in which final orders have been
inadvisedly entered -- renders the lack of prior notice of less
consequence. Petitioner never sought to avail himself of the escape
hatch provided by Rule 60(b).
Page 370 U. S. 633
Accordingly, when circumstances make such action appropriate, a
District Court may dismiss a complaint for failure to prosecute
even without affording notice of its intention to do so or
providing an adversary hearing before acting. Whether such an order
can stand on appeal depends not on power, but on whether it was
within the permissible range of the court's discretion. [
Footnote 8]
II
On this record, we are unable to say that the District Court's
dismissal of this action for failure to prosecute, as evidenced
only partly by the failure of petitioner's counsel to appear at a
duly scheduled pretrial conference, amounted to an abuse of
discretion. It was certainly within the bounds of permissible
discretion for the court to conclude that the telephone excuse
offered by petitioner's counsel was inadequate to explain his
failure to attend. And it could reasonably be inferred from his
absence, as well as from the drawn-out history of the litigation
(
see note 2
supra), [
Footnote 9]
that petitioner had been deliberately proceeding in dilatory
fashion.
There is certainly no merit to the contention that dismissal of
petitioner's claim because of his counsel's unexcused conduct
imposes an unjust penalty on the client. Petitioner voluntarily
chose this attorney as his representative in the action, and he
cannot now avoid the consequences of the acts or omissions of this
freely selected
Page 370 U. S. 634
agent. Any other notion would be wholly inconsistent with our
system of representative litigation, in which each party is deemed
bound by the acts of his lawyer-agent, and is considered to have
"notice of all facts, notice of which can be charged upon the
attorney."
Smith v. Ayer, 101 U.
S. 320,
101 U. S. 326.
[
Footnote 10]
We need not decide whether unexplained absence from a pretrial
conference would
alone justify a dismissal with prejudice
if the record showed no other evidence of dilatoriness on the part
of the plaintiff. For the District Court in this case relied on
all the circumstances that were brought to its attention,
including the earlier delays. [
Footnote 11]
Page 370 U. S. 635
And while the Court of Appeals did not expressly rest its
judgment on petitioner's failure to prosecute, it nonetheless set
out the entire history of the case (including the statement made by
the district judge's secretary that it was "the oldest civil case
on the court docket"), noted that the District Court had considered
the absence at the pretrial conference in light of "the history of
this litigation" and "of all the circumstances surrounding
counsel's action in the case," 291 F.2d at 545, and held that there
was no abuse of discretion in dismissing the action "under the
circumstances of this case."
Id. at 546. This obviously
amounts to no broader a holding than that the failure to appear at
a pretrial conference may, in the context of other evidence of
delay, be considered by a District Court as justifying a dismissal
with prejudice. [
Footnote
12]
Nor need we consider whether the District Court would have been
abusing its discretion had it rejected a motion under Rule 60(b)
which was accompanied by a more adequate explanation for the
absence of petitioner's counsel from the pretrial conference. No
such motion was ever
Page 370 U. S. 636
made, so that there is nothing in the record before us to
indicate that counsel's failure to attend the pretrial conference
was other than deliberate or the product of neglect.
Finally, this is not a case in which failure to comply with a
court order "was due to inability fostered neither by . . .
[petitioner's] own conduct nor by circumstances within its
control."
Societe Internationale Pour Participations
Industrielles Et Commercials, S.A. v. Rogers, 357 U.
S. 197,
357 U. S. 211.
Petitioner's counsel received due notice of the scheduling of the
pretrial conference, and cannot now be heard to say that he could
not have foreseen the consequences of his own default in
attendance.
Affirmed.
MR. JUSTICE FRANKFURTER took no part in the decision of this
case.
MR. JUSTICE WHITE took no part in the consideration or decision
of this case.
MR. JUSTICE DOUGLAS dissents.
[
Footnote 1]
See note 2
infra.
[
Footnote 2]
A history of the litigation appears in the opinion of the Court
of Appeals:
"On August 24, 1954, plaintiff William Link filed his complaint
in the district court against defendant The Wabash Railroad Company
to recover damages for injuries alleged to have been sustained by
him when he drove an automobile into a collision with defendant's
train standing across a highway in Indiana."
"On September 17, 1954, defendant appeared and filed its answer
to the complaint."
"On April 30, 1955, defendant filed its motion for judgment on
the pleadings. On October 18, 1955, hearing was had on this motion.
On November 30, 1955, the district court granted defendant's motion
for judgment on the pleadings and ordered the cause dismissed. From
this order of dismissal, plaintiff appealed. On October 10, 1956,
our court reversed and remanded the case for trial. . . . 237 F.2d
1, certiorari denied 352 U.S. 1003 (February 25, 1957). On March
13, 1957, the mandate from this court was filed in the district
court."
"Subsequently, the trial court set the case for trial for July
17, 1957. On June 27, 1957, on motion of plaintiff and defendant
not objecting, the trial date of July 17, 1957 was vacated; and the
cause was continued."
"On August 17, 1957, defendant filed interrogatories for
plaintiff to answer."
"On February 24, 1959, the trial court on its own initiative
gave notice to the parties, pursuant to Local Rule 11 [footnote
omitted], that the cause would be dismissed on March 25, 1959,
unless the court ordered otherwise."
"On March 24, 1959, plaintiff filed answers to defendant's
interrogatories."
"On March 25, 1959, hearing was had on the show cause order, and
on June 4, 1959, the trial court entered an order retaining the
case on the docket and setting it for trial for July 22, 1959."
"On July 2, 1959, on defendant's motion, to which plaintiff
agreed, the trial date of July 22, 1959 was vacated; and the case
was continued."
"On March 11, 1960, defendant filed additional interrogatories
for plaintiff to answer. On April 15, 1960, after an extension of
time granted by the trial court, plaintiff filed answers to the
additional interrogatories."
"On September 29, 1960, pursuant to Local Rule 12, effective
March 1, 1960, the district court caused notice to be mailed to
counsel for both parties scheduling a pretrial conference in this
case to be held in court on October 12, 1960 at 1:00 o'clock
p.m."
291 F.2d at 543-544.
[
Footnote 3]
See Fed.Rules Civ.Proc., 41(b), p.
370 U. S. 630
infra.
[
Footnote 4]
E.g., Cage v. Cage, 74 F.2d 377;
Carnegie National
Bank v. City of Wolf Point, 110 F.2d 569;
Hicks v. Bekins
Moving & Storage Co., 115 F.2d 406;
Zielinski v.
United States, 120 F.2d 792;
American National Bank &
Trust Co. of Chicago v. United States, 79 U.S.App.D.C. 62, 142
F.2d 571;
Shotkin v. Westinghouse Elec. & Mfg. Co.,
169 F.2d 825;
Slavitt v. Meader, 107 U.S.App.D.C. 396, 278
F.2d 276.
[
Footnote 5]
See, e.g., Des Moines Union R. Co. v. District Court,
170 Iowa 568, 153 N.W. 217;
Doughty v. Terminal R.
Ass'n, 291 S.W.2d
119 (Mo.);
Frytez v. Gruchacz, 125 N.J.L. 630, 17 A.2d
541;
Reed v. First National Bank, 194 Or. 45,
241 P.2d
109;
Moshannon National Bank v. Iron Mountain Ranch
Co., 45 Wyo. 265,
18 P.2d 623,
21 P.2d 834;
cf. Hartford Accident & Indemnity Co. v. Sorrells, 50
Ariz. 90, 69 P.2d 240;
Thompson v. Foote, 199 Ark. 474,
134 S.W.2d 11;
Koon v. Barmettler, 134 Colo. 221,
301 P.2d
713.
[
Footnote 6]
The issue in that case was whether a plaintiff was entitled to
recover interest on a refund claim for customs duties paid under
protest. In holding that interest for a 29-year period during which
the suit remained dormant should not have been allowed, Mr. Justice
Matthews, speaking for a unanimous Court, said: "This delay in
prosecution would certainly have justified the court in dismissing
the action on its own motion."
[
Footnote 7]
In the more populous districts, where calendar congestion has
become a severe problem, the District Courts, acting on their own
initiative, have from time to time established special call
calendars of "stale" cases for the purpose of dismissing those as
to which neither adequate excuse for past delays nor reason for a
further continuance appears.
See, for example, the local
rules of the following District Courts: Alaska Rule 16; Ariz. Rule
14; N.D.Cal. Rule 14; S.D.Cal. Rule 10(d); Colo. Rule 24; Conn.
Rule 15; Del. Rule 12; D.C. Rule 13; N.D.Fla. Rule 7; S.D.Fla. Rule
11; N.D.Ga. Rule 13(c); Idaho Rule 8(c); E.D.Ill. Rule 9; N.D.Ill.
Gen.Rule 21; N.D.Ind. Rule 10; S.D.Ind. Rule 16; N.D.Iowa Rule 22;
S.D.Iowa Rule 22; Kan. Rule 13; E.D.La. Gen.Rule 12; Me. Rule 15;
Mass. Rule 12; W.D.Mich. Rule 8; Minn. Rule 3(3); E.D.Mo. Rule
8(g); Neb. Rule 18; Nev. Rule 9(b); N.J. Rule 12; N.M. Rule 13;
E.D.N.Y. Gen.Rule 23; N.D.N.Y. Gen.Rule 11; S.D.N.Y. Gen.Rule 23;
W.D.N.Y. Gen.Rule 11; N.D.Ohio Rule 6; S.D.Ohio Rule 8; E.D.Okla.
Rule 12; E.D.Pa. Rule 18; M.D.Pa. Rule 210A; S.Dak. Rule 9, ยง 4;
S.D.Tex. Gen.Rule 22; Utah Rule 4(c); E.D.Wash. Rule 23(a);
W.D.Wash. Rule 41; N.D.W.Va. Art. II, Rule 8; S.D.W.Va. Rule 8;
E.D.Wis. Rule 11; E.D.Wis. Rule 15; Wyo. Rule 14.
[
Footnote 8]
Petitioner's contention that the District Court could not act in
the conceded absence of any local rule covering the situation here
is obviously unsound. Federal Rule of Civil Procedure 83 expressly
provides that, "in all cases not provided for by rule, the district
courts may regulate their practice in any manner not inconsistent
with these rules." In light of what has already been said, we find
no such inconsistency here.
[
Footnote 9]
The record shows that this was the "oldest" case on the District
Court's civil docket.
[
Footnote 10]
Clients have been held to be bound by their counsels' inaction
in cases in which the inferences of conscious acquiescence have
been less supportable than they are here, and when the consequences
have been more serious.
See, e.g., United States ex rel. Reid
v. Richmond, 295 F.2d 83, 89-90;
Egan v. Teets, 251
F.2d 571, 577 n. 9;
United States v. Sorrentino, 175 F.2d
721. Surely if a criminal defendant may be convicted because he did
not have the presence of mind to repudiate his attorney's conduct
in the course of a trial, a civil plaintiff may be deprived of his
claim if he failed to see to it that his lawyer acted with dispatch
in the prosecution of his lawsuit. And if an attorney's conduct
falls substantially below what is reasonable under the
circumstances, the client's remedy is against the attorney in a
suit for malpractice. But keeping this suit alive merely because
plaintiff should not be penalized for the omissions of his own
attorney would be visiting the sins of plaintiff's lawyer upon the
defendant. Moreover, this Court's own practice is in keeping with
this general principle. For example, if counsel files a petition
for certiorari out of time, we attribute the delay to the
petitioner, and do not request an explanation from the petitioner
before acting on the petition.
[
Footnote 11]
The history of the case belies any suggestion that the delay was
the fault of the defendant or solely of the district judge who
first ruled erroneously on the motion for judgment on the
pleadings. After the mandate of the Court of Appeals was filed with
the District Court, the trial date that was set was vacated on the
plaintiff's motion. Thereafter, the plaintiff failed to answer the
defendant's interrogatories from August 17, 1957, until the day
before the hearing on the order to show cause why the case should
not be dismissed for want of prosecution -- which was more than 19
months later. Although the next delay was occasioned by the
defendant's motion, it was consented to by the plaintiff, and there
is no showing whatever that plaintiff ever made any effort to bring
the case to trial. In fact, when the defendant submitted further
interrogatories, plaintiff again moved to have the time to answer
extended. Against this background, it is hardly surprising that the
District Court concluded that the failure to appear for a pretrial
conference was merely another delaying tactic.
[
Footnote 12]
Even if the judgment of the Court of Appeals rested on the
ground that counsel's "failure" to attend the pretrial conference
sufficed by itself to justify the dismissal, it is our duty,
without reaching the broader question, to sustain the District
Court on its narrower holding if, as we decide, that holding was
correct.
E.g., Walling v. General Industries Co.,
330 U. S. 545,
330 U. S. 547;
Langnes v. Green, 282 U. S. 531,
282 U. S.
536-537;
United States v. American Railway Express
Co., 265 U. S. 425,
265 U. S.
435-436;
see Securities & Exchange Comm'n v.
Chenery Corp., 318 U. S. 80,
318 U. S.
88.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE concurs,
dissenting.
I think that the order of the District Court dismissing this
case has no sound basis in law, in fact, or in justice. The
petitioner William Link brought an action to recover damages for
alleged serious and permanent injuries suffered in a collision
between his truck and a train operated by the respondent Wabash
Railroad Company. The District Court dismissed that action without
notice of any kind to the plaintiff Link or to his lawyer shortly
after the lawyer failed to appear at a scheduled pretrial
conference without what the trial judge regarded as an adequate
excuse. The order of dismissal apparently purports to end
petitioner's lawsuit and bar forever his right
Page 370 U. S. 637
to recover compensation for his injuries. [
Footnote 2/1] Under these circumstances, I think Judge
Schnackenberg was entirely correct in his dissent to the opinion of
the majority on the Court of Appeals for the Seventh Circuit
upholding the dismissal when he said:
"The order now affirmed has inflicted a serious injury upon an
injured man and his family, who are innocent of any wrongdoing.
Plaintiff's cause of action . . . was his property. It has been
destroyed. The district court, to punish a lawyer, has confiscated
another's property without process of law, which offends the
constitution. A district court does not lack disciplinary authority
over an attorney, and there is no justification, moral or legal,
for its punishment of an innocent litigant for the personal conduct
of his counsel. Because it was neither necessary nor proper to
visit the sin of the lawyer upon his client, I would reverse.
[
Footnote 2/2]"
As I understand the opinion of the Court here, it upholds the
District Court's dismissal order upon the ground of "want of
prosecution" and "dilatoriness on the part of the plaintiff,"
making it unnecessary, as the Court views the case, to "decide
whether unexplained absence from a pretrial conference would alone
justify a dismissal with prejudice. . . ." I do not think that
there is any basis in the record to support a dismissal of this
case for "want of prosecution," for "dilatoriness on the part of
the plaintiff" or for any other reason. In the first place, it
seems to me
Page 370 U. S. 638
that the Court is in error when it suggests that both the
District Court and the Court of Appeals relied on all the
circumstances of this case, including its "earlier delays," to
justify its dismissal with prejudice. It is true that the trial
judge, though expressly basing his order entirely upon the failure
of petitioner's lawyer to appear at the pretrial conference,
[
Footnote 2/3] did mention the
earlier history of the case as a ground for his action in a
conversation with the respondent's lawyer just before the
dismissal. But, as I read the Court of Appeals' opinion, it neither
relied upon nor even considered such a ground to support its
judgment. The opening statement of the Court of Appeals' opinion
certainly treated the case as resting not upon any general want of
prosecution, but instead wholly upon the failure of the lawyer to
appear:
"This is an appeal by plaintiff from an order of the district
court entered October 12, 1960 dismissing this cause of action for
failure of plaintiff's counsel to appear in court for a pretrial
conference scheduled for hearing on that date. [
Footnote 2/4]"
From this opening statement to the end of the majority opinion,
I think that every argument and sentence in that opinion is
directed to supporting the Court of Appeals' conclusion that the
District Court had power to dismiss the case not for any "want of
prosecution," but solely "as a sanction for disobedience of a court
order." [
Footnote 2/5] Indeed, the
only
Page 370 U. S. 639
reference to "want of prosecution" in the Court of Appeals'
entire opinion is a parenthetical one to describe that court's
holding in another case,
Darlington v. Studebaker-Packard
Corp., 261 F.2d 903 "where we upheld the dismissal of a cause
under
another local rule. . . ." [
Footnote 2/6] The plain import of the Court of Appeals'
opinion is, to my mind, starkly revealed when its refusal to rely
upon any theory of "want of prosecution" is considered in
connection with the emphatic statements of Judge Schnackenberg in
dissent:
"Defendant's counsel makes no effort to rely upon want of
prosecution as a ground for the involuntary dismissal. Obviously
defendant is in no position to make such a contention, inasmuch as
it caused the district court to vacate the order setting the case
for trial on July 22, 1959, and continue the case. [
Footnote 2/7]"
It is impossible for me to believe that the majority of the
Court of Appeals would have left this statement unchallenged if
they had wanted to place any reliance at all upon "want of
prosecution," "dilatoriness on the part of the plaintiff," or any
ground other than their desire to approve a sanction upon Link's
lawyer for his failure to appear at the pretrial conference.
Secondly, I think that this Court's decision to ignore the
single ground upon which I believe that the Court of Appeals rested
and to resurrect the "want of prosecution" theory from the trial
court colloquy is wrong, because this case has been a very live one
from the date it was filed right up to this very moment. It is true
that the case when dismissed had been pending for a long time, that
is, from August 24, 1954, to the date of dismissal, October 12,
1960. But during this entire period of time, motions and activities
of various kinds both by the lawyers and by the trial judge were
taking place in the court. Certainly it would be impossible for
anyone to suggest that the plaintiff Link
Page 370 U. S. 640
or his lawyer was responsible for the first three years of delay
in the trial of the case. If responsibility is to be placed upon
anyone for that delay, it must be placed upon the lawyers for the
defendant and upon the trial judge. One month after the lawsuit was
filed, the defendant appeared and answered the complaint. Some
months later, the defendant filed a motion for judgment on the
pleadings, arguing that the complaint failed to state a cause of
action. On November 30, 1955, more than a year after the case was
filed, the district judge granted the motion for judgment on the
pleadings and entered his first dismissal of the case. On October
10, 1956, however, the Court of Appeals for the Seventh Circuit, in
an opinion by Judge Schnackenberg, reversed this dismissal and
remanded the case for trial. [
Footnote
2/8] The railroad then asked this Court to grant certiorari and
review the Court of Appeals' holding but, on February 25, 1957, we
denied certiorari. [
Footnote 2/9]
At this stage, the case had been delayed for almost three years by
an erroneous ruling of the trial judge made at the instance of the
defendant's lawyers.
Upon remand, the District Court set the case for hearing on July
17, 1957, but this order was vacated and the cause continued "on
motion of the plaintiff, and defendant not objecting. . . ." This
continuance of the case by agreement between the plaintiff and the
defendant of course provides not even a scintilla of evidence to
support a dismissal for want of prosecution. Two months later, in
an effort to buttress its defense for the approaching trial on the
merits, the railroad filed interrogatories which the plaintiff
answered. It is true that these interrogatories were not answered
until some 19 months after they were filed. But there is no
indication in the record that the defendant tried to get the
interrogatories answered earlier. And every trial lawyer knows that
the failure of a lawyer
Page 370 U. S. 641
to answer interrogatories designed to solicit answers to be used
against his client before those answers are demanded by the party
filing the interrogatories is nothing more than a normal trial
tactic of a lawyer who is trying to win the case for his client. On
February 24, 1959, the trial judge, on his own motion, issued
notice to the parties that he would dismiss the case for the second
time on March 25, 1959, unless he ordered otherwise. After holding
hearings on that date, however, and considering the arguments of
counsel, the trial judge entered, on June 4, 1959, an order
retaining the case on his docket and setting it for trial on July
22, 1959. This action of the court in retaining the case on its
docket shows that the trial judge certainly did not think at that
time that the case was not being prosecuted. But, before the case
could be tried on July 22, the judge granted another continuance,
this time at the request of the defendant, with the plaintiff not
objecting. Although this continuance at the request of the
defendant, like the previous three-year delay directly attributable
to the defendant and the court, doubtless contributed to the age of
this case on the court's docket, I do not suppose (although I am
not certain) that it is one of the "circumstances" which the Court
refers to as justifying the dismissal of the case. On March 11,
1960, six years after this lawsuit was filed, the defendant's
lawyers filed still more interrogatories for plaintiff to answer.
One month and four days later, after an extension of time granted
by the trial court, these interrogatories were answered. This
certainly does not seem like an extraordinary delay in answering
interrogatories which apparently had taken the defendant six years
to conceive and prepare.
Five months after the plaintiff answered defendant's March 11
interrogatories, the trial judge, again on his own motion, issued
notice scheduling a pretrial conference on October 12, 1960. This
was the pretrial
Page 370 U. S. 642
conference at which petitioner's lawyer failed to appear. But
even that failure showed no inclination on the part of the
plaintiff or his lawyer to abandon the lawsuit, for the lawyer
called the clerk of the District Court over long-distance telephone
and also talked to the trial judge's secretary on the morning of
the day of the conference to explain why he could not be present on
October 12 and to urge that the pretrial conference be passed over
to the next day, October 13, to give him a chance to be present. It
is true that the trial judge later refused to accept the lawyer's
explanation, and this ruling, if correct, indicates that the lawyer
may have been guilty of some kind of breach of his responsibility
to his client and to the court. It does not indicate, however, and
it cannot by any stretch of the imagination be made to indicate,
that the lawyer, much less the plaintiff himself, was acting in the
way people do who let their lawsuits die for "want of prosecution."
The record shows that neither the lawyer nor the plaintiff himself
was given any sort of notice by the judge or by his secretary that
the request for a one-day postponement would be denied, even though
the defendant's request for indefinite postponement had been
granted only three months earlier. Nor did the lawyer or the
plaintiff receive any notice that a failure to appear at the
pretrial conference would result in the drastic sanction of
dismissal of the case. [
Footnote
2/10] And I think that nothing short of clairvoyance would have
enabled either of them to anticipate that this Court, or any court,
would approve dismissal of the case for "want of prosecution."
Under the foregoing facts, it seems to me that it inflicts the
grossest kind of injustice upon this petitioner to
Page 370 U. S. 643
uphold dismissal of his case on the ground that it was not being
prosecuted. Of course it was. Counsel for both parties apparently
were doing the best they could to bring the case to a successful
conclusion for their respective clients. The "earlier delays"
preceding the plaintiff's lawyer's failure to appear at the
pretrial hearing, far from showing a "want of prosecution,"
actually strengthen the conclusion that the case was being
prosecuted because by far the greater part of these delays was due
to steps that were being taken in furtherance of the litigation.
Only the two continuances in the case, one at the request of
counsel for the plaintiff and the second at the request of counsel
for the defendant, created delays not obviously related to that
end. And if these delays are to be punished, I see no reason why
the punishment should be limited to the plaintiff and his lawyer. I
must say that it appears to me to be a sort of unequal justice that
would punish the plaintiff or even his lawyer for "earlier delays"
which undoubtedly were due in major part to an erroneous ruling of
the trial judge with regard to the sufficiency of the pleadings, a
continuance of the trial brought about at the request of the
defendant, and the several motions that the defendant's counsel
made along through the years in connection with interrogatories and
additional interrogatories which were to be used for no purpose
other than to defeat the plaintiff's actively prosecuted
lawsuit.
Even assuming in the face of these plain facts, however, that
all the blame for the six years' delay in this case could be laid
at the feet of plaintiff's lawyer, it seems to me to be contrary to
the most fundamental ideas of fairness and justice to impose the
punishment for the lawyer's failure to prosecute upon the plaintiff
who, so far as this record shows, was simply trusting his lawyer to
take care of his case as clients generally do. The Court dismisses
this whole question of punishing the plaintiff
Page 370 U. S. 644
Link for the alleged fault of his lawyer with the simple
generalized statement:
"Petitioner voluntarily chose this attorney as his
representative in the action, and he cannot now avoid the
consequences of the acts or omissions of this freely selected
agent. [
Footnote 2/11]"
One may readily accept
Page 370 U. S. 645
the statement that there are circumstances under which a client
is responsible for the acts or omissions of his attorney. But it
stretches this generalized statement too far to say that he must
always do that. This case is a good illustration of the deplorable
kind of injustice that can come from the acceptance of any such
mechanical rule.
Link filed an action in court, as was his right, alleging the
infliction of serious injuries upon him by the railroad for which
he sought damages. His case was delayed for three years because of
the trial judge's erroneous ruling on a question of the technical
sufficiency of the complaint, a ruling which, if it had not been
reversed, would have frustrated the plaintiff's right to a trial on
the merits. This ruling, of course, should never have been made,
for it was plainly inconsistent with the whole philosophy
underlying the modern liberal rules of procedure which govern civil
trials in the federal courts. When the Court of Appeals upheld the
complaint, reversed the trial court and remanded the case for
trial, the parties engaged in a number of activities obviously
designed to bring the case to trial. On at least two separate
occasions, the plaintiff himself was called upon to respond to
interrogatories submitted by the railroad. Under these
circumstances, the plaintiff simply had no way of knowing that
there was even the slightest danger that his potentially valuable
lawsuit was going to be thrown out of court because of some default
on the part of his lawyer. Quite the contrary, the plaintiff had
every reason to believe that his lawyer, who had obtained reversal
of the trial judge's
Page 370 U. S. 646
first erroneous order of dismissal in the Court of Appeals, was
eminently well qualified to represent his interests, and would do
his best to win the lawsuit.
There surely can be no doubt that if the plaintiff's lawyer had
gone into court without authority and asked the court to dismiss
the case so as to bar any future suit from being filed, this Court
would repudiate such conduct and give the plaintiff a remedy for
the wrong so perpetrated against him. Or had the trial judge here,
instead of putting an end to plaintiff's substantial cause of
action, simply imposed a fine of several thousand dollars upon the
plaintiff because of his lawyer's neglect, I cannot doubt that this
Court would unanimously reverse such an unjust penalty. The result
actually reached here, however, is that this Court condones a
situation no different in fact from either of those described
above. The plaintiff's cause of action is valuable property within
the generally accepted sense of that word, and, as such, it is
entitled to the protections of the Constitution. Due process
requires that property shall not be taken away without notice and
hearing. I do not see how the result here can be squared with that
fundamental constitutional requirement.
Moreover, to say that the sins or faults or delinquencies of a
lawyer must always be visited upon his client so as to impose
tremendous financial penalties upon him, as here, is to ignore the
practicalities and realities of the lawyer-client relationship.
[
Footnote 2/12] Lawyers
everywhere in this country are granted licenses presumably because
of their skill, their integrity, their learning in the law and
their
Page 370 U. S. 647
dependability. While there may be some clients sophisticated
enough in the affairs of the world to be able to select the good
from the bad among this mass of lawyers throughout the country,
this unfortunately cannot always be the case. The average
individual called upon, perhaps for the first time in his life, to
select a lawyer to try a lawsuit may happen to choose the best
lawyer or he may happen to choose one of the worst. He has a right
to rely at least to some extent upon the fact that a lawyer has a
license. From this he is also entitled to believe that the lawyer
has the ability to look out for his case, and that he should leave
the lawyer free from constraint in doing so. Surely it cannot be
said that there was a duty resting upon Link, a layman plaintiff,
to try to supervise the daily professional services of the lawyer
he had chosen to represent him. How could he know, even assuming
that it is true, that his lawyer was a careless man or that he
would have an adverse effect upon the trial judge by failing to
appear when ordered? How could he know or why should he be presumed
to know that it was his duty to see that the many steps a lawyer
needs to take to bring his case to trial had been taken by his
lawyer? Why should a client be awakened to his lawyer's incapacity
for the first time by a sudden brutal pronouncement of the court:
"Your lawyer has failed to perform his duty in prosecuting your
case, and we are therefore throwing you out of court on your
heels"? So far as this record shows, the plaintiff never received
one iota of information of any kind, character, or type that should
have put him on notice as an ordinary layman that his lawyer was
not doing his duty. [
Footnote
2/13]
Page 370 U. S. 648
Any general rule that clients must always suffer for the
mistakes of their lawyers simply ignores all these problems. If a
general rule is to be adopted, I think it would be far better in
the interest of the administration of justice, and far more
realistic in the light of what the relationship between a lawyer
and his client actually is, to adopt the rule that no client is
ever to be penalized, as this plaintiff has been, because of the
conduct of his lawyer unless notice is given to the client himself
that such a threat hangs over his head. Such a rule would do
nothing more than incorporate basic constitutional requirements of
fairness into the administration of justice in this country.
The Court seems to find some reason for holding that this
plaintiff can be penalized without notice because of a program
certain courts have adopted to end congestion on their dockets by
setting down long pending cases for trial. It is, of course,
desirable that the congestion on court dockets be reduced in every
way possible consistent with the fair administration of justice.
But that laudable objective should not be sought in a way which
undercuts the very purposes for which courts were created -- that
is, to try cases on their merits and render judgments in accordance
with the substantial rights of the parties. Where a case has so
little merit that it is not being prosecuted, a trial court can, of
course, properly dispose of it under fair constitutional
procedures. There is not one fact in this record, however, from
which an inference can be drawn that the case of Link against the
Wabash Railroad Company is such a case. When we allow the desire to
reduce court congestion to justify the sacrifice of substantial
rights of the litigants in cases like this, we attempt to promote
speed in administration, which is
Page 370 U. S. 649
desirable, at the expense of justice, which is indispensable to
any court system worthy of its name.
Moreover, it seems plain to me that any attempt to cut down on
court congestion by dismissing meritorious lawsuits is doomed to
fail even in its misguided purpose of promoting speed in judicial
administration. Litigants with meritorious lawsuits are not likely
to accept unfair rulings of that kind without exhausting all
available appellate remedies. Consequently, any reduction of trial
court dockets accomplished by such dismissals will be more than
offset by the increased burden on appellate courts. This case seems
to me an excellent example of the sort of wholly unnecessary waste
of judicial resources which can result from such overzealous
protection of trial court dockets. The case has twice been before
the Court of Appeals and has twice been brought to this Court as a
result of "time-saving" ruling handed down by the trial judge.
It is true that, by its ruling today, the Court finally puts an
end to this case, and thus clears it from all federal dockets. But,
in view of the fact that the merits of the case have never been
reached, I cannot believe that there should be too much rejoicing
at this fact. The end result of the procedures adopted here has
been that much time has been wasted, and yet no justice has been
done. I find it highly regrettable that the Court feels compelled
to place its stamp of approval upon such procedures.
It may not be of much importance to anyone other than the
plaintiff here and his family whether this case is tried on its
merits or not. To my mind, however, it is of very great importance
to everyone in this country that we do not establish the practice
of throwing litigants out of court without notice to them solely
because they are credulous enough to entrust their cases to lawyers
whose names are accredited as worthy and capable by their
government. I fear that this case is not likely to stand out in the
future as the best example of American justice.
[
Footnote 2/1]
Since the order of dismissal here did not specify that it was
without prejudice to the plaintiff's right to reinstitute the
action, the dismissal operates as a judgment on the merits if Rule
41(b) of the Federal Rules of Civil Procedure applies. Of course,
if Rule 41(b) is not the source of the power exercised here, as
this Court seems to say, the order of dismissal would still end
plaintiff's chance of recovery because his cause of action is now
barred by the statute of limitations.
[
Footnote 2/2]
291 F.2d 542, 548.
[
Footnote 2/3]
The order of dismissal stated as follows:
"Pursuant to the inherent powers of the Court, and upon failure
of plaintiff's counsel to appear at a pretrial, which was scheduled
for today, October 12, 1960 at 1:00 o'clock, pursuant to notice,
under Rule 12, counsel having failed to give any good and
sufficient reason for not appearing at said pretrial, the cause is
now dismissed."
[
Footnote 2/4]
291 F.2d at 543.
[
Footnote 2/5]
Id. at 546. It is true that the Court of Appeals set
out the history of the case, but it made no attempt to rely upon
that history to justify its judgment of affirmance. Its reference
to the "circumstances" of the case quoted in the Court's opinion
simply cannot be magnified to indicate any such reliance.
[
Footnote 2/6]
Id. at 545. (Emphasis supplied.)
[
Footnote 2/7]
Id. at 547.
[
Footnote 2/8]
237 F.2d 1.
[
Footnote 2/9]
352 U.S. 1003.
[
Footnote 2/10]
Thus, even under the Court's theory that a client must always be
charged with "notice of all facts, notice of which can be charged
upon the attorney," the plaintiff here cannot be charged with
notice that his lawsuit would be dismissed upon the failure of his
lawyer to appear at the pretrial conference.
[
Footnote 2/11]
The Court does cite three cases in an effort to support this
general proposition, but none of those cases even suggests so harsh
and expansive a rule. Moreover, they deal with situations so far
removed from that presented here that their inapplicability as
precedent for the conclusion reached in this case is apparent.
United States ex rel. Reid v. Richmond, 295 F.2d 83, and
United States v. Sorrentino, 175 F.2d 721, were criminal
cases in each of which the defendant sought to upset his conviction
on the ground that his lawyers had exercised poor judgment in
handling one of the multitude of decisions that have to be made in
the trial of every lawsuit. Reid's lawyers had failed to make an
objection to one piece of evidence. The Court of Appeals, finding
that this action "had much to commend it" as trial strategy, held
that any objection to the evidence must be considered waived, and
that "Reid must be bound by what his lawyers did and his
acquiescence in that course by his own testimony." 295 F.2d at
89090. Even this holding provoked sharp dissent: "A holding that
counsel assigned an accused may waive him into the electric chair
seems in any event dubious."
Id. at 90-91. Sorrentino's
lawyers waived his right to object to an order of the trial judge
reducing the number of spectators at his trial. The Court of
Appeals held that Sorrentino was bound by this waiver, saying:
"Sorrentino did not at any time indicate to the court that he
was not fully satisfied with the action which the trial judge had
thus taken with his counsel's consent. It must, therefore, be
concluded that he acquiesced in his counsel's judgment that his
interests would not be prejudiced, and indeed might be served, by
the reduction which the court ordered in the number of spectators
at the trial."
175 F.2d at 723-724. Certainly no one could say of Link, as it
was said of Sorrentino, that "his interests would not be
prejudiced, and indeed might be served," by the dismissal of his
case.
Egan v. Teets, 251 F.2d 571, involved an allegation
that the defendant's original appeal papers had been suppressed and
the court held merely that the failure of the defendant's counsel
to raise this point in the state courts after the defendant himself
knew of the alleged suppression plus the failure of the defendant
to offer any explanation for not raising the point in the state
courts must be taken as waiving the point. 251 F.2d at 576-577.
Here, it cannot be suggested that plaintiff's counsel has waived
the plaintiff's right to have his lawsuit tried, since he has been
holding on tenaciously to that right for eight years, four of which
have been spent in trying to get the Court of Appeals and this
Court to force the trial judge to give him a trial on the merits.
Certainly nothing in the opinion in
Egan suggests that, if
the defendant had been able to allege and prove that his appeal
papers had been suppressed by wrongful conduct on the part of his
lawyer, he would nonetheless be bound by that conduct.
[
Footnote 2/12]
I am not quite able to understand the Court's suggestion that
"keeping this suit alive . . . would be visiting the sins of
plaintiff's lawyer upon the
defendant." I do not see how
it can be regarded as a punishment to compel a person to try his
lawsuit on its merits before an impartial judicial tribunal
established under and operating in accordance with the Constitution
of the United States.
[
Footnote 2/13]
The Court's suggestion that petitioner might have been able to
file a motion under Rule 60(b) "accompanied by a more adequate
explanation for the absence of petitioner's counsel from the
pretrial conference" is no answer at all to the problem presented
by the plaintiff's lack of notice. Whether the lawyer had "a more
adequate explanation" or not, I think the plaintiff himself is
entitled to due process before his property is taken from him.