# Ruby H. Harris v. Reginald Callwood & Daisy Callwood

> Court of Appeals for the Sixth Circuit · April 21, 1988 · 844 F.2d 1254

URL: https://www.frixlaw.com/law-library/cases/9477505

## Case

- **Full name:** Ruby H. HARRIS, Plaintiff-Appellant, v. Reginald CALLWOOD & Daisy Callwood, Defendants-Appellees
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** April 21, 1988
- **Citations:** 844 F.2d 1254; 10 Fed. R. Serv. 3d 1041; 1988 U.S. App. LEXIS 5434; 1988 WL 34923
- **Precedential status:** Published
- **Opinion:** Concurrence by Brown
- **Judges:** Merritt, Ryan, Brown
- **Cited by:** 150 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9477505

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9477505. Public record. Not legal advice.