Wright, Mikva and Scalia, Circuit Judges.
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the Court filed by Circuit Judge Mikva.
Dissenting opinion filed by Circuit Judge Scalia.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA
Under Fed. R. Civ. P. 41(b), a defendant may move for involuntary dismissal for "failure of the plaintiff to prosecute or to comply with these rules or any order of court." The cases indicate that use of the rule has been limited to egregious conduct by dilatory plaintiffs. The leading case on dismissal for want of prosecution is Link v. Wabash Railroad, 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962), in which a sharply-divided Supreme Court upheld the dismissal of an action that had been pending for six years. The petitioner's lawyer had failed without reasonable explanation to appear for a pretrial conference, and the majority found that it "could reasonably be inferred . . . that petitioner had been deliberately proceeding in a dilatory fashion." Id. at 633.
In the other cases cited by the defendant as upholding dismissal, the conduct was as bad or worse. See, e.g., Asociacion de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir. 1976) (dismissal not an abuse of discretion where plaintiffs had already received one time extension, had failed to appear for a hearing, had failed to comply with court directives, had failed to meet a filing deadline after explicitly promising to meet it, and had proffered no plausible excuses); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976) (dismissal not an abuse of discretion where action had been pending for more than three years, had already been dismissed for want of prosecution and then reinstated, the plaintiff had unreasonably delayed replying to a discovery order, had received several time extensions, had interposed frivolous motions, had failed to file a reply brief after promising the court its imminent delivery, and had ignored repeated warnings). As we have noted before, see, e.g., Butler v. Pearson, 204 U.S. App. D.C. 254, 636 F.2d 526, 529 (D.C. Cir. 1980); Jackson v. Washington Monthly Co., 186 U.S. App. D.C. 288, 569 F.2d 119, 121 (D.C. Cir. 1977), Link and its progeny authorize dismissal where the record reveals "a course of protracted neglect."
The law of this circuit partakes of the general view that dismissal is an extremely harsh sanction and may be reversed when discretion is abused. Camps v. C & P Telephone Co., 223 U.S. App. D.C. 396, 692 F.2d 120, 123-24 (D.C. Cir. 1981). Since our system favors the disposition of cases on the merits, dismissal is a sanction of last resort to be applied only after less dire alternatives have been explored without success. See id.; Jackson, 569 F.2d at 123.
Automated Datatron, Inc. v. Woodcock, 212 U.S. App. D.C. 284, 659 F.2d 1168 (D.C. Cir. 1981), relied upon so heavily by the dissent, is not to the contrary. In Woodcock, we upheld the dismissal of a count of a counterclaim where the dismissal resulted from the litigant's "prolonged failure" -- over a period of six months -- to comply with a clear instruction of the trial court to amend his pleadings. The litigant had had "ample opportunity" to comply, he had been instructed and warned to do so, and the necessary steps were "fully" within his control. We found that he had advanced no excuse apart from inadvertence or oversight and presented no special circumstances that might explain his neglect and "conspicuous disregard" of the court's directive. Compliance, we pointed out, would have been relatively simple. We observed, moreover, that although the dismissal occurred two weeks before trial, permitting the litigant to comply at that date would have necessitated rescheduling a trial which had already been postponed once before. Consideration of the record in the present case shows that the conduct of the plaintiff was not such as to reasonably warrant the sanction of dismissal.
Trakas was formerly a liquor saleswoman in the employ of the defendant and, allegedly, the only woman in the restaurant division of the company's sales force. On March 1, 1982, a new division sales manager was appointed. According to Trakas, her new supervisor publicly stated that one of his goals was to develop an all-male sales force. The defendant claims that Trakas was dismissed for failure to meet her sales quotas. Trakas describes that explanation as a pretext, asserting that she had increased sales in her territory every month and that male employees who failed to meet the quotas were not dismissed. Suffice it to say there are many facts at issue which will require a trial for resolution.
The record shows that Trakas lost her job on August 13, 1982, instituted administrative action on September 8, 1982, received a "right to sue" letter from the appropriate federal agency in the late summer of 1983, and forthwith instituted the present action on August 31, 1983. At a November 10, 1983 status call, the trial date was set for March 7, 1984.
Plaintiff remained unemployed after her firing. In June 1983, she moved to St. Louis, Missouri, where her husband, an attorney, had been offered a job. The plaintiff's husband was gainfully employed in November, when the trial date was set. In January 1984, however, he lost his job. With both spouses out of work, getting the money to travel to Washington for the trial unexpectedly became a problem. Trakas claims she planned to borrow the requisite funds from her parents but that at the last minute the parents did not provide the loan. On the weekend before trial, Trakas called her attorney to say that due solely to lack of funds she could not get to Washington but that she still desired to pursue her claim. She added that her husband had accepted employment as a waiter, and that she expected to have the necessary money within a month.
Trakas' attorney immediately notified opposing counsel and the district court. The timing was such that both had less than two days notice of Trakas' desire for a continuance. There was, however, sufficient advance warning for the defendant to call off its witnesses and for the judge to advise the jurors to stay home. The expense of an appearance by counsel might also have been spared had the judge ruled on the plaintiff's written motion, but the judge requested counsels' appearance on the scheduled trial date. In court, she denied the continuance, thereby rendering prosecution of the case impossible, and then dismissed for want of prosecution.
We obviously do not condone plaintiff's waiting so long to bring her financial difficulties to the attention of counsel and of the court, but the error did not cause such consequences as to warrant the harsh sanction of dismissal. It is uncontroverted that up until the incident in question here, Trakas had pursued her claim diligently and expeditiously. No prior continuances had been sought and the only delay of any sort had been on the part of the defendant (in ...