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.