Bernard P. Colokathis v. Wentworth-Douglass Hospital, 693 F.2d 7, 1st Cir. (1982)
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Scribd Government DocsBernard P. Colokathis v. Wentworth-Douglass Hospital, 693 F.2d 7, 1st Cir. (1982)
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Scribd Government Docs693 F.
2d 7
Bernard P. COLOKATHIS, Plaintiff, Appellant,
v.
WENTWORTH-DOUGLASS HOSPITAL, et al., Defendants,
Appellees.
No. 82-1410.
United States Court of Appeals,
First Circuit.
Argued Oct. 8, 1982.
Decided Nov. 15, 1982.
Charles A. Meade, Concord, N.H., with whom Stephen R. Fine &
Associates, P.A., Manchester, N.H., was on brief, for plaintiff, appellant.
Robert M. Larsen, Concord, N.H., with whom Eugene Van Loan, III, A.J.
McDonough, Manchester, N.H., and Sulloway, Hollis & Soden, Concord,
N.H., were on brief, for defendants, appellees.
Before COFFIN, Chief Judge, TIMBERS, * Senior Circuit Judge, and
BREYER, Circuit Judge.
COFFIN, Chief Judge.
Bernard Colokathis appeals from an order of the District Court of New
Hampshire dismissing his complaint for want of prosecution. After hearing oral
argument from the parties and carefully reviewing the record, we conclude that
the district court was within the proper exercise of its discretion in dismissing
the case.
The case has a long history. We rehearse here only the highlights. Plaintiff filed
his complaint in November of 1977. Extensive discovery was conducted by
plaintiff's first trial counsel and a trial date was set for June 9, 1980. On May 6,
1980, the case was continued on the court's own motion and the trial date was
changed to December 29, 1980. On September 24, 1980, plaintiff's counsel
withdrew, citing serious and irreconcilable differences with the plaintiff. There
followed a parade of new counsel for the plaintiff, totalling at least seven by
May of 1982.1 One of the new counsel, David DePuy, entered on December 10,
1980. Because he "had not had an opportunity to review all of the pleadings and
discovery compiled to date", he asked for and was granted a continuance in the
trial from the scheduled December 29, 1980 date to December 7, 1981.
3
On January 15, 1981, another new counsel, Leo Hirsch, appeared on behalf of
plaintiff. He advised the court that he expected to be able to review the file of
approximately 4,000 to 5,000 pages within six weeks of receiving it. The court
gave him until March 16, 1981 to notify the court and parties what further
discovery would be necessary to prepare the plaintiff's case for trial. On March
11, 1981, the plaintiff reported to the court that it was "impossible to complete
the review of the file in a thorough manner so as to be able to decide what
additional discovery might be required by March 16, 1981." The court granted
an extension to July 31, 1981. On May 22, 1981, attorney Hirsch outlined his
requested discovery and defendants objected. On June 11, 1981, the court
announced that the case would take priority on his calendar and that "[n]o
further continuance will be granted." At a hearing on September 11, 1981, the
trial judge expressed his concern over "the lack of any discovery since my
Order of January 20, 1981, and the close proximity of final pretrial on
November 20, 1981 and trial date of December 7, 1981" and ordered a
September 11, 1981 cutoff for plaintiff's additional discovery requests and an
October 8, 1981 hearing on discovery objections.
On September 16, 1981, plaintiff's local counsel withdrew. Plaintiff failed to
appear at the discovery hearing, held on October 9, and the court denied the
discovery requests. On October 21, 1981, attorney Hirsch moved to have the
October 9 orders withdrawn, arguing that they amounted to a denial of due
process. On October 28, 1981, new local counsel appeared and moved to
continue, arguing that attorney Hirsch had not received notice of the October 9
hearing and that "at the very best the discovery conducted by plaintiff's
previous trial counsel was inadequate." On November 13, 1981, the trial judge
denied the motion to withdraw the October 9 orders, denied all further
discovery and all further continuances, "absent the most exigent of
circumstances", and ordered that "this case will proceed to trial as presently
scheduled, or it will be dismissed with prejudice." Because of the trial judge's
illness, the trial date was changed again, to April 27, 1982. The final pretrial
conference was scheduled for April 8, 1982.
On April 2, 1982, attorney Hirsch withdrew, citing "irreconcilable differences"
with the plaintiff over the payment of legal fees and the conduct of the case. On
April 6, 1982, the court dismissed the case. The court noted the dilatory tactics
of the plaintiff, the cost to the defendants, the waste of judicial resources and
the probability of further delay. Plaintiff's local counsel moved to reinstate the
case, assuring the court that he was ready, willing and able to proceed with the
case as scheduled. The court denied the motion.
6
On appeal, plaintiff argues that the court abused its discretion by not
considering less drastic sanctions than dismissal and by not waiting until the
date set for trial to determine whether the latest change in counsel would result
in further delay of the case. He also asserts that he should have had notice and a
hearing prior to the dismissal of his case or at least an opportunity to explain to
the court the reasons for the actions that provoked dismissal. We disagree.
We have had several occasions recently to rehearse the standards for dismissal,
under Fed.R.Civ.P. 41(b), for want of prosecution. As we noted in Medeiros v.
United States, 621 F.2d 468, 470 (1st Cir.1980) (quoting Zavala Santiago v.
Gonzalez Rivera, 553 F.2d 710, 712 (1st Cir.1977)):
"A district court unquestionably has the authority to dismiss a case with
prejudice for want of prosecution; this power is necessary to prevent undue
delays in the disposition of pending cases, docket congestion, and the
possibility of harassment of a defendant. See Link v. Wabash R. Co., 370 U.S.
626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); 9 Wright & Miller, Federal Practice
and Procedure Sec. 2370 at 199. Because of the strong policy favoring the
disposition of cases on the merits, see Richman v. General Motors Corp., 437
F.2d 196, 199 (1st Cir.1971), we, and federal courts generally, have frequently
warned that dismissals for want of prosecution are drastic sanctions, which
should be employed only when the district court, in the careful exercise of its
discretion, determines that none of the lesser sanctions available to it would
truly be appropriate. See Asociacion de Empleados v. Rodriguez Morales, 538
F.2d 915 (1st Cir.1976); Richman v. General Motors Corp., supra. See also
Durgin v. Graham, 372 F.2d 130, 131 (5th Cir.1967). But we have not hesitated
to affirm dismissals of suits for want of prosecution in the appropriate cases.
See Pease v. Peters, 550 F.2d 698 (1st Cir.1977); Asociacion de Empleados v.
Morales, supra; cf. Luis Forteza e Hijos, Inc. v. Mills, 534 F.2d 415 (1st
Cir.1976)."
This was an appropriate case for dismissal. The court had endured four and a
half years of delay and confusion, contributed to by at least seven different
attorneys for the plaintiff. It had repeatedly warned that no further delay would
be countenanced. In light of the prior requests for continuances to give new
counsel the opportunity to familiarize themselves with the voluminous record
and the fact that local counsel, prior to the withdrawal of attorney Hirsch,
apparently had little involvement in the conduct of trial preparation, the district
court was warranted in concluding that the most recent changing of the guard
could only signal further delay. We see no reason why the court and the
defendants should have been put to the further trial preparation expense that
would have been required had the court waited to dismiss the case when the
plaintiff actually requested further delay.
10
As plaintiff points out, we have counseled in other cases that the court should
consider less drastic sanctions than dismissal. See Zavala Santiago v. Gonzalez
Rivera, 553 F.2d 710, 712 (1st Cir.1977) (suggesting sanctions such as a
warning, a formal reprimand, placing the case at the bottom of the calendar list,
a fine, the imposition of costs or attorney fees, and the temporary suspension of
the counsel from practice). Here we see no less drastic sanction that would have
served to prevent the further delay and harassment of the court and the
defendants that the court's order sought to avoid.
11
Nor are we persuaded that the plaintiff was entitled to notice and a hearing
before the court dismissed the case. The Supreme Court has made clear that
"when circumstances make such action appropriate, a District Court may
dismiss a complaint for failure to prosecute even without affording notice of its
intention to do so or providing an adversary hearing before acting." Link v.
Wabash Railroad Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734
(1962). See also Corchado v. Puerto Rico Marine Management, Inc., 665 F.2d
410 (1st Cir.1981).
12
In light of the fact that plaintiff's problems are apparently due largely to his
own inability to get along with his counsel, with the result that after four and a
half years the case was still not prepared for trial, and of the court's repeated
warning that further delay would result in dismissal of the case, we cannot say
that there was any unfairness to the plaintiff in the fact that he was not afforded
one final opportunity to try to persuade the court that the history of delays
would not be repeated.
13
The judgment of the district court is affirmed.
Of the Second Circuit, sitting by designation
There is some confusion as to the exact number of attorneys. Plaintiff counts
ten, five local counsel and five out of state trial counsel, but his count includes
two attorneys who may never have formally appeared in the action. In any
case, seven are enough
