decided as amended november 13 1970.: October 21, 1970.
Aldisert and Adams, Circuit Judges and Higginbotham, District Judge.
HIGGINBOTHAM, District Judge.
We are asked to decide whether the District Court abused its discretion in dismissing plaintiff-appellant's case with prejudice under a Local Rule which provides for dismissal of cases in which, without good reason, no action has been taken for a period of one year.*fn1 We conclude that the District Court did not abuse its discretion. We do so fully mindful that appellant's claim might ultimately have had some substantial merit.
I. History of the Case in Court.
Plaintiff-Appellant Howard Spering's three-count complaint was filed on June 25, 1965. In twenty paragraphs appellant detailed a series of legal actions undertaken on behalf of defendant-appellee Texas Butadiene & Chemical Corporation (hereinafter "TB&C") from 1954 through 1964 and for which he was allegedly not fully compensated. Invoking breach of contract, unjust enrichment, and quantum meruit theories of recovery, appellant asked for judgment in the amount of $901,322.83, plus interest, costs, and counsel fees.
TB&C filed its amended answer on January 17, 1966. In addition to ten affirmative defenses, the amended answer avers that "defendant has paid plaintiff in full for all services rendered * * * with the exception of services rendered after February 25, 1964, with respect to which defendant has paid $6,000.00 on account, but as to which plaintiff has not yet submitted a final statement."
TB&C filed twenty-one interrogatories to plaintiff on December 14, 1965. Plaintiff objected to interrogatories 2, 4, and 6 through 21. On July 29, 1966 Chief Judge Wright overruled plaintiff's objections subject to a limitation, and plaintiff filed his answers on October 2, 1966.
The remainder of 1966 saw no further record action taken in the lawsuit. Nor was any record action taken in all of 1967. It was only on February 1, 1968 -- one year and four months less a day after plaintiff last acted in the lawsuit -- that Spering filed four interrogatories to TB&C. No official notice was made of this first delay in excess of one year. TB&C completed its answers to plaintiff's interrogatories on May 21, 1968.
On August 2, 1968 Civil Action No. 3047, Howard Spering v. Texas Butadiene & Chemical Corporation was more than three years old. Accordingly, pursuant to Local Rule 3 of the District Court for the District of Delaware, plaintiff was asked on that day to file with the Clerk of the Court "a statement in sufficient detail explaining why the case has not proceeded more expeditiously."*fn2
In a response dated September 3, 1968 counsel could "only suggest that the plaintiff himself is an attorney actively engaged in the practice of law in Washington, D.C., the period of time during which the claim asserted by the plaintiff arose extends over a period of years, and a great number of documents, memoranda and correspondence had to be reviewed from time to time as the case proceeded." By way of conclusion, plaintiff's attorney stated: "Plaintiff intends to proceed at this point more expeditiously in preparation for the trial of this case." Defendant's letter to the Clerk of the Court stated defendant's position that "it is incumbent upon plaintiff to move the case along promptly or dismiss it." The District Court took no action at that time.
Another eleven months passed without a single record action in the case. More than a year and a half had passed since plaintiff had filed four interrogatories on February 1, 1968, and with the exception of these four questions answered in May of that year, no record action had been taken by plaintiff to advance his case in thirty-four months. As in 1968 also in 1969, the Clerk of the Court, pursuant to Local Rule 3,*fn3 called upon plaintiff to explain why his case had not proceeded more expeditiously. Pending for three years, plaintiff's case was now also one in which no action had been taken for a period of one year (for the second time). Plaintiff had therefore to show cause why the case should not be dismissed.
On August 6, 1969 defendant moved to dismiss plaintiff's case, basing its motion in part on Local Rule 12.*fn4 In a letter to the Clerk of the Court, with copies to Chief Judge Wright, Judge Steel, and counsel for Spering, defendant stated its intention to "bring its motion to dismiss to the attention of the Court at the Call of the Calendar" scheduled for September 16, 1969.
Plaintiff Howard Spering, himself a lawyer, was not unaware of the dangerous drift that had set in for some time in the prosecution of his case. In a letter to his attorney dated March 26, 1969 Spering noted that "months have gone by without our moving forward in our case against Texas Butadiene & Chemical Corporation." "I fear," he continued, "that so much time has gone by without action on our part that we have probably already prejudiced our negotiative position in the ...