Opinion

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
Court
Court of Appeals for the Sixth Circuit
Filed
Apr 21, 1988
Status
Published
Author
Brown
On the bench
Merritt, Ryan, Brown
Cited by
150 cases
Authority
More cited than 25.6%

extracting the principle from similar cases that “in the absence of notice that dismissal is contemplated by á district court should impose a penalty short of dismissal unless the derelict party has engaged in ‘bad faith or contumacious conduct’ ”

How later courts described this case

  • extracting the principle from similar cases that “in the absence of notice that dismissal is contemplated by á district court should impose a penalty short of dismissal unless the derelict party has engaged in ‘bad faith or contumacious conduct’ ”
  • extracting the principle from similar cases that "in the absence of notice that dismissal is contemplated by a district court should impose a penalty short of dismissal unless the derelict party has engaged in `bad faith or contumacious conduct'"
  • extracting principle that in the absence of notice, court should impose penalty short of dismissal unless party has engaged in bad faith or contumacious conduct
  • “[I]n 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.’ ”

Written by the judges who cited it.

The opinion

BAILEY BROWN, Senior Circuit Judge,

concurring.

If we were writing on a clean slate for this circuit, I would be inclined to agree with Judge Ryan’s dissent in its interpretation of Rule 41(b) and Link v. Wabash R.R., 370 U.S. 626 , 82 S.Ct. 1386 , 8 L.Ed.2d 734 (1962). The problem is that we have a series of prior opinions of panels of this court dealing with these questions, and the majority opinion is consistent with these opinions. Bishop v. Cross, 790 F.2d 38 (6th Cir.1986); Patterson v. Township of Grand Blanc, 760 F.2d 686 (6th Cir.1985); Carter v. City of Memphis, Tenn., 636 F.2d 159 (1980); and Holt v. Pitts, 619 F.2d 558 (1980). In all of these opinions, the district court was reversed for dismissing with prejudice.

As to the facts: as Judge Ryan points out, the Clerk’s office record showed that notice of the second pre-trial conference was mailed to appellant (on which the district court relied), but it is also true that appellant promptly filed a motion to set aside the dismissal, claiming that she had not actually received the notice, which motion the district court denied without further inquiry.

*1257 Since I do not believe that this panel can or should overrule the decisions of prior panels, I concur with the majority opinion. I would add that the standard for dismissal applied by the majority opinion has the advantage of some certainty. Moreover, it would appear that, as a general practice, it would be well to include in all orders, such as those setting pre-trial conferences, that failure to appear may result in dismissal with prejudice without further notice.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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