Opinion
Action was brought against police officers for assault and for undue prepresentment delay. On plaintiff's motion for enlargement of time in which to file pretrial brief, the District Court, Parker, J., held that action would be dismissed for counsel's failure to file pretrial brief.
Action dismissed.
Melvin Anthony Marshall, Washington, D.C., for plaintiff.
O. Gregory Lewis, Asst. Corp. Counsel, Washington, D.C., for defendants.
ORDER OF DISMISSAL
BARRINGTON D. PARKER, District Judge.
In this action the plaintiff claims that District of Columbia police officers assaulted him, improperly confiscated certain monies in the possession of plaintiff and others, and delayed unduly in presenting plaintiff before a magistrate after his arrest. Additionally, plaintiff alleges that the conditions upon which he was released on bail, requiring that he submit to drug testing and treatment, violated his Fourth, Fifth, and Sixth Amendment rights. All counts save those alleging assault and battery and pre-presentment delay were dismissed on the defendants' motion for summary judgment. See Order of this Court, filed June 14, 1985.
Plaintiff originally cast his complaint as a class action, alleging that relief was being sought for all local adult residents who, upon arrest for drug violations, had had monies in their possession confiscated. Class certification was denied by this Court in an Order of June 14, 1985.
On July 31, 1985, counsel for both parties were directed to file pretrial briefs by August 21, 1985, and pretrial was scheduled for August 29. Only counsel for defendant District of Columbia complied. On the morning of the pretrial hearing, counsel for plaintiff appeared and moved for leave to file a pretrial brief. At that time, neither defense counsel nor the Court had the benefit of the plaintiff's pretrial brief or notice of any of the claims presented therein. In addition, trial was scheduled for October 4, barely more than a month away. Plaintiff's motion to file late the pretrial brief was denied, and the Court sua sponte dismissed the complaint.
Rule 41(b), Fed.R.Civ.P., provides that " [f]or failure of the plaintiff to prosecute or to comply with [the federal] rules, or any order of court, a defendant may move for dismissal of an action...." Moreover, " [t]he court has the power to dismiss sua sponte, as well as upon motion by defendant...." 5 Moore's Federal Practice ¶ 41.12, at 41-154 & n. 26 (citations omitted). The case of Link v. Wabash R.R., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), is clear authority for dismissal of a proceeding as a means of dealing with counsel's failure to obey rules of procedure and orders of court. In Automated Datatron, Inc. v. Woodcock, 659 F.2d 1168 (D.C.Cir.1981), a counterclaim was dismissed for failure to obey an order to join a necessary party. This Circuit noted in Datatron that " [c]ourt calendars and trial assignments are not made to accommodate attorneys," 659 F.2d at 1170 (quoting Pease v. Peters, 550 F.2d 698, 701 (1st Cir.1977)), particularly when so to do would work to the detriment of speedy adjudication. By the same token, however, dismissal is a remedy not to be used lightly. Trakas v. Quality Brands, Inc., 759 F.2d 185 (D.C.Cir.1985) (reversing district court's dismissal for failure to prosecute). Generally, dismissal is warranted only in cases in which counsel is guilty of " protracted delay," Trakas, 759 F.2d at 186; Butler v. Pearson, 636 F.2d 526, 529 (D.C.Cir.1980); Jackson v. Washington Monthly Co., 569 F.2d 119, 121 (D.C.Cir.1977), or failure otherwise to obey orders of court. See, e.g., Asociacion de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir.1976) (failure to appear at hearing, failure to comply with court directives, failure to meet filing deadline); Datatron, 659 F.2d 1168 (" conspicuous disregard" of court's order). Cf. Bomate v. Ford Motor Company, 761 F.2d 713, 714 (D.C.Cir.1985) (per curiam) (" dismissal is proper if, in view of the entire procedural history of the case, the litigant has not manifested reasonable diligence in pursuing the cause" ) (emphasis added) (citations omitted).
While dismissal is rarely warranted for " a single act of misconduct," Trakas, 759 F.2d at 188 (citing Camps v. C & P Telephone Co., 692 F.2d 120, 123 (D.C.Cir.1981)), the misconduct in this proceeding is not confined to a single act. Just as in Datatron, plaintiff's counsel not only disobeyed a standing order of this Court, but has done so in a manner prejudicial to the orderly advance of this proceeding to final adjudication. Moreover, here as in Datatron, counsel failed to file essential pleadings in final preparation for trial. Where counsel's willful inattention thus causes both the court and the opposing party inconvenience and delay, the court may dismiss the action, even though a lesser sanction could have been imposed. Datatron, 659 F.2d at 1169; Poulis v. State Farm Fire and Casualty Co., 747 F.2d 863, 869 (3rd Cir.1984). As noted, this is not the first instance of dereliction by plaintiff's counsel. On December 14, 1984, sanctions were imposed on counsel for his failure to comply with previous orders. Specifically, counsel failed to attend a scheduled status call and continued to remain away even when ordered to appear later that day. Counsel then failed to file a pleading ordered by the Court. Accordingly, this Court dismissed the complaint, but then in an Order of January 31, 1985, the order of dismissal was vacated and a fine of $100.00 was imposed.
Finally, just as in Datatron, counsel offers no acceptable or justifiable reason for his neglect. In support of the motion for an enlargement of time to file his pretrial brief, plaintiff's counsel explains that, during the months of July and August, he " was out of the country" and that " [u]pon his return he [had] been plagued not only with the normal ‘ jet lag,’ but [also with] a summer cold." Plaintiff's Memorandum of Points and Authorities ¶ 2. In addition, counsel asserts that " he literally had a shopping bag of mail to address" and that he had to make numerous unscheduled court appearances. Id. For these reasons, " [d]espite his best efforts," counsel could not complete his brief until the day before the pretrial hearing, a week after it was due. Id. at ¶ 3.
Without indicating whether one would be otherwise moved to sympathy by counsel's scheduling difficulties, it is noted that counsel did find time to file, on August 19, 1985 (two days before the pretrial brief was due), a motion to enlarge issues at trial. In short, counsel failed to file a mandatory pleading required by this Court, in favor of filing a pleading of his own choosing. Counsel, in asserting that he did not have adequate time to file a pretrial statement, shows little regard for his responsibility to the Court and the standards of his profession.
Essentially, counsel was seeking to reopen issues that had been foreclosed by this Court's rulings on defendant's motion for summary judgment, discussed supra. See Order of this Court, filed June 14, 1985.
Accordingly, it is this 5th day of September, 1985,
ORDERED
That plaintiff's motion for an enlargement of time in which to file a pretrial brief is denied; and
That this proceeding is dismissed with prejudice.