stating in the 10 context of when a court may dismiss a case for lack of prosecution that the public interest 11 favors the expeditious resolution of litigation, and the disposition of cases on their merits
How later courts described this case
- stating in the 10 context of when a court may dismiss a case for lack of prosecution that the public interest 11 favors the expeditious resolution of litigation, and the disposition of cases on their merits
- holding court properly dismissed the plaintiff’s case after plaintiff’s counsel failed to heed the court’s warning that failure to submit an acceptable pretrial order would result in dismissal
- holding that dismissal was within the court’s discretion after the plaintiff received at least three initial warnings of dismissal as well as a status conference to try to remedy the problem
- noting that a district court has “inherent power sua sponte to 10 dismiss a case for lack of prosecution”
Written by the judges who cited it.
The opinion
FLETCHER, Circuit Judge,
dissenting:
I would reverse. Plaintiff delivered his incomplete draft of the pretrial order to defendant’s counsel on July 23, 1984, three working days before the deadline set by the court for the filing of the order (the close of business, July 26). Defense counsel returned the draft along with a draft of defense counsel’s portion, also incomplete, on the evening of July 25. Counsel jointly worked to resolve differences and to complete missing portions on July 26. Both counsel recognized that work remained to be done, including completion of the framing of the issues and agreement on the admissibility of exhibits. Defense counsel refused to work longer as he was going on vacation the following day; the court, contacted by phone, refused a further extension. Neither defendant’s nor plaintiff’s portions of the pretrial order were fully complete. Nonetheless the court dismissed, thereby punishing plaintiff and rewarding defendant.
The court recited the factors that must be considered in determining whether to dismiss a case for lack of prosecution. However, its deliberations reflect more concern for tidy dispatch of cases than for fairness to the litigants. See Olympic Sports Products v. Universal Athletic Sales, 760 F.2d 910 , 915 (9th Cir.1985). Where counsel share responsibility for timely filing, the court should be very careful to prevent one party’s inaction or refusal to act prejudicing the other. See Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980) (per curiam) (finding abuse of discretion where court dismissed action with prejudice for lack of prosecution when both attorneys seemed “equally dilatory,” and defense counsel had not requested the dismissal).
I do not condone plaintiff’s counsel’s conduct, but defendant was not prejudiced by *1426 the delay. Less severe sanctions were in order.