Charles A. Meeker v. Carl A. Rizley, R. L. Minton, Lee H. Bullard, J. M. Burden, and v. P. McClain, 324 F.2d 269, 10th Cir. (1963)
Charles A. Meeker v. Carl A. Rizley, R. L. Minton, Lee H. Bullard, J. M. Burden, and v. P. McClain, 324 F.2d 269, 10th Cir. (1963)
Charles A. Meeker v. Carl A. Rizley, R. L. Minton, Lee H. Bullard, J. M. Burden, and v. P. McClain, 324 F.2d 269, 10th Cir. (1963)
2d 269
On June 12, 1962, the court notified the parties that on June 22, 1962 there
would be a pre-trial conference in the case and a hearing on the motion for
removal. On June 18, Meeker, who was appearing pro se, filed a motion in
which he requested that the motion for removal or transfer be disposed of
before a pre-trial conference was held. In the motion it was alleged that he was
unable to employ counsel in Oklahoma to appear for him in the case, and for
On July 9, Meeker moved to vacate the judgment, alleging that his failure to
attend was the result of mistake as to the necessity of his presence for the
disposition of pending motions before a pre-trial conference should be held,
and that such failure to appear "was in no way intended or the result of any
wilful (sic) or irresponsible conduct on his part." It was also alleged that no
notice was given the plaintiff prior to the entry of the judgment, as required by
Rule 55 (b) (2), Fed.R.Civ.Proc. This motion was heard August 7, 1962, when
Meeker was represented and appeared through counsel. At the conclusion of
the arguments on the motion, the court announced that it "would give some
consideration" to a motion to reopen the case if another motion was filed by
September 1, 1962, setting forth the grounds and depositing therewith the sum
of $1200 to pay the expenses of the defendants incurred in attending the pretrial conference. No new motion was filed, nor was the $1200 deposit made,
whereupon the court overruled the motion to vacate the judgment.
The record is clear that the district court intended to enter a default judgment
against the plaintiff, and to grant permanent, affirmative injunctive relief to the
defendants. No contention is made that the three-day notice required by Rule
55(b) (2) Fed.R.Civ.Proc. was given to the plaintiff before entry of the
judgment. A default judgment having been entered, Rule 55(c) provides that
relief therefrom may be available by motion under Rule 60(b). Moore's Federal
Practice, Vol. 6, 55.10(1). We need not determine in this instance whether the
default judgment entered is void or voidable, since the failure to give the
required three-day notice constitutes cause for setting it aside. Plaintiff's motion
should have been granted. Commercial Cas. Ins. Co. v. White Line T. & S. Co.,
8 Cir., 114 F.2d 946; Anno. 51 A.L.R.2d 837; Moore's Federal Practice, Vol. 6,
55.10(2).
As a general proposition, the trial court has the inherent power to dismiss a
plaintiff's action for failure to prosecute or to comply with the rules of federal
Reversed.
Notes:
1
Rule 16 of the Rules of the United States District Court for the Western District
of Oklahoma reads in part:
"Failure to comply with the requirements of this rule will make exhibits and
writings inadmissible and any such witnesses incompetent to testify. Should a
party or his attorney fail to appear at the pretrial an ex parte hearing may be
held and appropriate judgment entered."
In Link v. Wabash R. Co., 370 U.S. 626, 629-630, 82 S.Ct. 1386, 1388, 8
L.Ed.2d 734, the court said: "The authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure to prosecute cannot
seriously be doubted. The power to invoke this sanction is necessary in order to
prevent undue delays in the disposition of pending cases and to avoid
congestion in the calendars of the District Courts. The power is of ancient
origin, having its roots in judgments ofnon-suit and non prosequitur entered at
common law, e. g., 3 Blackstone, Commentaries (1768), 295-296, and
dismissals for want of prosecution of bills in equity, e. g., id., at 451. It has
been expressly recognized in Federal Rule of Civil Procedure 41(b) * * *."
In Matheny v. Porter, 10 Cir., 158 F.2d 478, 480, this Court said: "* * * The
court had power to discipline the defendant for failing to comply with the
pretrial conference order. And in the exercise of that power, the court was
clothed with reasonable discretion in determining what measure of discipline
was appropriate and should be imposed. The court might well have required the
defendant to pay all costs incurred in connection with the presence of the
witnesses in court, might well have taxed against defendant all costs incurred
up to that time, or might well have imposed some other reasonable exaction.
The withdrawal from defendant of the right to introduce any evidence in his
own behalf bearing upon the issues of fact in the case seems drastic."