LINK v. WABASH RAILROAD CO.
Legal provision: Federal Rules of Civil Procedure, including Appellate Procedure (or relevant rules of a circuit court)
Argument of Jay E. Darlington
Chief Justice Earl Warren: Number 422, William Link, Petitioner, versus Wabash Railroad Company.
Mr. Jay E. Darlington: May it please the Court.
The clerk has informed us of the time of situation and both attorneys are agreeable to divide the -- the remaining 45 minutes or whatever it may (Voice Overlap) --
Chief Justice Earl Warren: You're very kind to do that Mr. Darlington.
Mr. Jay E. Darlington: The -- I am here mainly to serve the Court and to answer any questions with no set -- a stereotyped speech to make but if it's agreeable I would like to state what were appealing from what I think the question is and briefly the facts as to how the question arises and what I feel is the applicable law that the petitioner was the plaintiff in a personal injury case in the District Court based upon diversity.
I was his attorney there.
It was -- and the District Court in the Fall of 1960 dismissed the case in my absence on a court sought motion without any motion for dismissal by opposing counsel and the dismissal was not purportedly based upon Rule 41 (b) of Civil -- of Civil Procedure or upon any local rule.
But upon -- and asserted inherent power so-called of the District Court to make the dismissal.
And that so-called inherent power was affirmed on appeal by a two-to-three decision.
The facts underlying that I think can be very briefly stated.
This case was filed in 1954.
In the spring of 1955, the defense counsel, my distinguished opponents erred -- filed a motion to dismiss the case for alleged failure of the complaint to state a cause of action.
And in the fall of 1955 after six months consideration, the District Court sustained that motion.
I appealed from it successfully and the Court of Appeals held the complaint good in order to do -- reinstate it.
That meant -- and instantly by opponent's petition for certiorari which took some more time and was denied.
So they mandate that back to the District Court in the spring of 1955 but after a delay of a couple of years caused by the defense.
Following that in the summer of 1957, there was a trial setting.
I moved too far and obtained a continuance; the general continuance with the consent of my opponent.
In the summer of 1959, the situation was reversed, it was against that for trial and my opponent moved for continuance to which I consented.
Then in the spring of 1960, my opponent filed some additional interrogatories which I answered.
And the next step in the case was that late in September of 1960, the District Court, acting under the -- this Local Rule 12 on pretrial which simply says that the Court may hold pretrial conference upon notice to the attorney of the case.
It's really a short restatement of Rule 16 of Civil Procedure adds nothing to it.
That notice, a mimeograph form of notice, went out to both counsel, I received it.
It was set for a 1 p.m. on October 12, Columbus Day, fell on a Wednesday.
Beginning Monday morning, I was engaged as the record shows, in preparing urgent papers of an undescribed nature to be filed in the Supreme Court of Indiana -- I was -- at Indianapolis, a 160 miles distance from the seat of this District Court.
And the record shows that my opponent conceded that -- that on Tuesday the 11th, I called him on the telephone, told him what I was doing and that I thought I could make that pretrial conference the next afternoon and I expected to be there.
It turned out Wednesday forenoon that I couldn't make it.
I -- like some lawyers maybe I was (Inaudible)
I had -- unable to finish this job, these papers that we're committed to the Supreme Court of -- at Indianapolis.
And while they're not described, I think it can be assumed that -- that I was acting in good faith in completing that job but there's no affidavit, no showing to the contrary.
At any rate, the -- the record shows that on that forenoon; that Wednesday forenoon, I called the judge of the District Court, and being able to reach and talk to his secretary, I told her that I was still working on papers for the Supreme Court.
I couldn't get there that afternoon.
I would be there the next afternoon, 24 hours later or the day after that or any day that was convenient for the Court or counsel.
Justice Potter Stewart: At what time on Wednesday afternoon?
At what time on --
Mr. Jay E. Darlington: The next --
Justice Potter Stewart: At what time --
Mr. Jay E. Darlington: (Voice Overlap) --
Justice Potter Stewart: -- on Wednesday afternoon?
Mr. Jay E. Darlington: What's that?
Justice Potter Stewart: At what time on Wednesday afternoon was the conference scheduled?
Mr. Jay E. Darlington: If Your Honor Please, the -- the -- the pretrial hearing was set for 1 p.m. on Wednesday afternoon.
Justice Potter Stewart: And you telephoned judge's secretary at about what, 11 o'clock in the morning?
Mr. Jay E. Darlington: I telephoned -- the record shows I telephoned the secretary about at 10:45 a.m. or -- or thereabouts and asked to speak to the judge but he was on the bench.
I talked to her, asked her to please inform the Court also to inform opposing counsel.
I told her for I thought the -- he was, and she did that; she performed that task, affirmed it before noon.
So -- so by noon of Wednesday, the message had reached His Honor and had reached my opposing counsel by the -- well --
Unknown Speaker: Your -- your call was from Indianapolis, was it?
Mr. Jay E. Darlington: What's it?
Unknown Speaker: Your call was put in from Indianapolis?
Mr. Jay E. Darlington: Oh, yes.
Yes Your Honor and the -- was not going -- I didn't think it was appropriate to go into detail with the secretary as to the nature or the necessity of the work I was doing.
I told her I was preparing for the papers for the Supreme Court of -- of Indiana.
Actually they were committed to be filed that day but I didn't go into that.
That at any rate, that afternoon after waiting for sometime, the -- before, I -- I don't know why because it was known I couldn't be there but anyway, at 3 p.m. that the matter was called for pretrial conference and a pretrial conference was held ex parte the -- between the District Judge and my opponent that at which my opponent said, "Yes, I had called him the day before", and said, "I thought I could make it, I expect you to be there", and the -- the secretary was called in and related substantially of what I have stated.
And then His Honor said to my opposing counsel that -- that -- if I may read one short paragraph, "Under the circumstances, what is your thinking Mr. Bodle?"
There was no motion then by my opponent or at any time during that hearing, written or oral to dismiss this case.
Mr. Bodle announced this legal doctrine to the Court which was adopted by the District Court, substantially adopted by the Court of Appeals yet the question here is substantial whether the doctrine is right or not, whether its dangerous or not.
Rest of it is at the bottom page 13 of the transcript.
"Mr. Bodle, I would certainly suggest to the Court that it has an inherent authority to dismiss cases not only under its own local rule concerning prosecution but it has an inherent power without any specific rule by virtue of Federal Rule 83 and the inherent power of the Court to dismiss where the Court fix if necessary under the particular situations not provided for by any specific local rule."
Well the -- after some discussion about the -- my being to blame for not being there which is not important.
I don't consider I'm one the trial particularly except to say that I never have conceded below that -- that if I did any wrong.
I don't think I did -- I think that I did my best but that's not the point.
The proceeding ended with this statement; this directive of the District Court.
The Court now directs the clerk to enter in order to this effect pursuant to the inherent -- this is page 68, pursuant to the inherent powers of the Court and upon failure of plaintiff's counsel to appear at pretrial which was scheduled for the day and so on, pursuant to notice under Rule of 12.
Counsel having failed to give any good and sufficient reason for not appearing at that pretrial, the cause is now dismissed.
And we go over to the majority opinion at page 21 and we find the paragraph which I think is embedded in a little confused argument in the opinion if I may say so, but the crux of it is there at the bottom of page 21.
If I may I read it, "The plaintiff argues that there was no motion by defendant for a dismissal since the trial court did not base its dismissal on Local Rule 11 or on Rule 41 (b) of Federal Rules Civil Procedure for want of prosecution.
No such motion was required."
It is quite clear to us that the District Courts have ample authority to regulate their practice in any manner not inconsistent with the Federal Rules so on as provided in Rule 83.
This case comes within the purview of that rule.
The Court then goes on to say that my argument to the contrary as to sheer sophistry to -- and that the trial court has inherent power to do what?
To enforce its rules, orders or procedures.
I call attention to procedures; it's a pretty broad loose term and to impose appropriate sanctions for failure to comply.
The authorities are all against me the court says.
Judge Schnackenberg dissented.
He points out that the dismissal was not based upon want of prosecution that as indeed the majority opinion had said, "If it has been the defendant wouldn't have been in the very good position because the defendant had caused two years of delay in the case, much expense to my client and myself by causing that unnecessary appeal to get back in court again."
And at the last time the case was set for trial.
It was postponed generally at his request to which I consented.
I had offered and conveyed to the judge my desire to be there the next afternoon 24 hours later.
Now the -- that raises questions which depend not on any federal statute.
It does involve the Fifth Amendment if this Court cares to invoke it because if my accusation is going to be correct, I think the plaintiff has been deprived of his property that is his cause of action without the presence of law.
I think the Court has the option to reverse on that ground if it thinks the case shouldn't be reversed.
I think the Court likewise has the option to bypass the constitutional question and decided on an interpretation of the rules.
At least the division of power between the Courts and the extent to which District Courts can go unrestricted by anything definite either in the Rules of Civil Procedure or anything in their own rules just for their inherent power on the spur of the moment.
As counsel announced to the Court and this was upheld.
Our contention is that the -- that is a dangerous doctrine that if allowed to persist and it will persist as a precedent that unless reversed here that it would make the -- the Rules of Civil Procedure to -- a hollow shelf that no lawyer could rely on.
The same would be true of the local rules.
You couldn't even rely on the local rules.
You'll find in my brief, I quoted that on -- the Court's own Local Rule 7th which says on page 6 of the brief, "Motions to dismiss for summary judgment for a judgment on the pleadings shall be accompanied by a brief and adverse party shall have 15 days to file an answer and so on."
In that respect, the protection that was given to me and other parties by that Local Rule, it's greater than is spelled out on Rule 41 (b) did.
Now the -- I have studied my opponent's cases as well as I can and particularly the two decisions of this Court that he refers to in the text (Inaudible) Moore's that he refers to and the other cases.
Incidentally, Mr. Moore's text is based -- cites only the Wisdom case.
The District Court case in Alabama where the -- the dismissal was under Rule 41 (b) and the defendant had made a motion for dismissal.
Now, in that case as in many others which counsel cites, there are some dicta, there's some loose language about the inherent powers of courts to dismiss cases and to apply sanctions.
And I don't deny the sanctions but how about dismissal, how about final disposal, final judgement that had some serious matter that (Inaudible) -- there is not a single solid holding that I know of by this Court or certainly not by this Court or by any other court except the dicta that I have mentioned which is -- supports this doctrine.
And if there were below, it certainly wouldn't bind this Court.
That's what this Court seats for.
And I haven't time to elaborate.
I don't need to elaborate.
Just please consider the -- what shape the practice is going to be in and all of the confusion like of uniformity, all the aggrieved parties coming up here for relief the same as I am that should the procedure be tightened up, should that -- or should it be left the way this precedent leaves it.
Chief Justice Earl Warren: Thank you Mr. Darlington.
Argument of John Bodle
Mr. John Bodle: May it please the Court.
The counsel for the petitioner in his brief although not in oral argument today has asserted that there is no power in the Federal District Courts to dismiss actions of their own volition for disobedience of court orders or court settings or court rules.
This is not the case.
The rule of law is well established to the contrary.
We have the cases or some of the more recent cases outlined in our brief at pages 11 through 14.
And it's simply indisputable.
This Court has recognized in passing that the trial courts still has sua sponte powers to enforce sanctions including dismissal of their own motion.
The federal rules have certainly not removed those powers and Federal Rule 83, the situation, the Rule which allows the Court to govern itself in unusual situations where there is no standing rule is applicable here.
And of course Rule 41 (b) which talks about motions by defendants for dismissals also contains within itself a reference to other dismissals not provided for herein.
The counsel for the petitioner would have the courts strike down these long-recognized and frequently exercised powers.
There is nothing new or nothing noble on what was done by the trial court in this case.
On behalf of the respondents, we submit that the preservation of this powers of trial court is necessary to the efficient operation of the courts in the scheduling of their procedures and their settings that their application in this case was justified by the facts which I'll consider in a moment.
And that this Court accordingly should affirm the dismissal which was granted below and which was approved by the Seventh Circuit.
There's no constitutional question here since the basic power to act in the manner in which the trial court did act is well established by the cases.
The only possible question is the exercise of discretion by the trial court, was it within its discretion to grant the dismissal sua sponte as it did on -- and was entitled to do so under the particular circumstances of this case.
Now, of course any case involving exercise of discretion will stand and fall on its own facts.
Nevertheless, we have cited a number of cases in our brief clearly recognizing the propriety of dismissing actions sua sponte for disregard of pretrial settings.
I'll now refer to those cases in a moment.
We submit that to affirm the result below will be to follow the existing state of the law and will not be part from more effect, the present state of the law in any regard.
But then on the other hand, a reversal would have serious consequences and that it would impinge upon the powers of the trial courts to regulate their business which would be most unfortunate view of the continuing congestion problem in our courts.
Turning to the facts, I'd like to reexamine very briefly.
We have for purposes of this case and action that was filed in March of 1957 since that's when the court -- the trial court got the case back on remand.
Now at no time since March 1957 and indeed at no time prior to the first appeal did the plaintiff ever make any move to carry this case forward by the smallest step.
There was never a request for a setting.
There were never any interrogatories spelled.
There was never any action taken by the plaintiff on the record in this case to move the case along.
Now two years after the remand in the spring of 1959, and this is the point which my opponent omits from his brief and from his argument today.
The trial court brought the matter up of its own volition for possible dismissal for failure to prosecute under its one rule, under the 20-year rule.
After keeping that matter under advisement for a couple of months, the Court did decide to leave the case on the docket which I certainly think and submit to the Court shows that the trial judge was not dead-set against this case and was not determined to get rid of the case.
There have been absolutely no activity for two years and still he let us stay on the docket.
Now another year and four months went by and still there was no action whatsoever by the plaintiff.
Finally, in October of 1960 or actually at the end of September 1960, the trial court sent out notices of the pretrial.
This was done pursuant to a valid local rule based upon Federal Rule 16 and accordingly, as this Court said many years ago in Weil versus Neary having any force and effect of law.
Nothing happened and until about two hours before the pretrial when this telephone call came from Indianapolis.
Plaintiff's counsel talking to the secretary said in the fact that he was staying on in Indianapolis to take care of some other unspecified business and an unrelated manner -- matter.
Now it's obvious I submit that on these facts, petitioner's counsel was not the innocent victim of some unforeseen circumstance created by someone else which prevented his attendance.
That is an imaginative version but it will not fit within the framework.
We -- all of us have many different cases to work on but we -- all of us, as officers of the Court or allegiance to the Court and to its trial settings.
The trial courts and not trial counsel are in charge of the trial dockets and trial schedules.
There's no contention here by the petitioner that the Court was obligated to grant its continuance.
And of course only the trial court knew when its affairs would again permit the matter to be brought on for pretrial.
The petitioner's counsel is not entitled to bargain with the Court by telephone to say, "Well I -- I just can't make it today, I've got something more important on.
Now, I'll just show up in the next day or two and we can take care of it then.
Justice Hugo L. Black: Does the record show whether counsel for the defendant was there when the motion was spread -- when case was dismissed?
Mr. John Bodle: Counsel for defendant, yes Mr. Justice Black.
Justice Hugo L. Black: I'ts in the record --
Mr. John Bodle: I was that counsel.
I was present at the time the dismissal was entered.
Justice Hugo L. Black: Does the record show that?
Mr. John Bodle: Yes sir, I believe the portions that Mr. Darlington read --
Justice Hugo L. Black: I thought he'd said --
Mr. John Bodle: -- showed that.
Justice Hugo L. Black: -- that was dismissed by the Court on its own motion --
Mr. John Bodle: Well, that's true.
Justice Hugo L. Black: -- put on this motion.
Mr. John Bodle: It was dismissed by the Court of his own motion.
Justice Hugo L. Black: And did you -- this statement that he makes that he had talked to you the day before.
Mr. John Bodle: He called me on the telephone.
You see, as also appears in the record.
I had noticed the deposition of his plaintiff and the reason for his phone call and I think this was in the record, I wouldn't say it, is that he was calling to tell me that he wasn't going to produce his plaintiff and he wasn't going to be there at the deposition but that he didn't tell me to go to the pretrial.
Justice Hugo L. Black: Does the record show why you did not move to dismiss it?
Mr. John Bodle: Your Honor, the fact is --
Justice Hugo L. Black: (Voice Overlap) --
Mr. John Bodle: -- that is that I had a motion and I never had the reason or the opportunity to present because the Court made it very clear that it felt there been on the front to its processes after this long delay by the plaintiff showing complete indifference to his cause of action.
And the -- the Court moved forward of its own motion.
So, there's no need for me to present a 37 (d) motion.
Justice Tom C. Clark: Was this the same judges as in the other Darlington case?
Mr. John Bodle: Well, you mean the Darlington versus Studebaker-Packard case?
No Your Honor, that's Judge Robert Grant.
This is not the same judge.
Justice Tom C. Clark: (Inaudible)
Mr. John Bodle: This is Judge Swygert who is now on the Court of Appeals for Seventh Circuit.
Justice Tom C. Clark: When did he call -- when did he call you about the deposition with reference to the dismissal, I mean the day before it?
Mr. John Bodle: Well, it was the day before the pretrial.
Justice Tom C. Clark: How far is it from Indianapolis, the District -- was this judge seating in Hammond?
Mr. John Bodle: The judge was seating in Hammond Mr. Justice Clark.
It's approximately 160 or 165 miles away.
Justice William J. Brennan: Well do I understand -- how long -- how much of a notice are you setting on that day of the pretrial that each of you had?
Mr. John Bodle: The notice was sent out as the record shows on September 30th --
Justice William J. Brennan: On this setting?
Mr. John Bodle: -- and was timely received through the mails.
Justice William J. Brennan: In this date of the pretrial was what date?
Mr. John Bodle: October 12th.
Justice William J. Brennan: October 12?
So that's about 10-12 days notice?
Mr. John Bodle: Yes, Your Honor.
Justice William J. Brennan: Now do I understand that the -- you and the counsel for the petitioner had a conversation on the afternoon of the 11th?
Mr. John Bodle: Afternoon or evening of the 11th, I have forgotten when it was, the record --
Justice William J. Brennan: Or many --
Mr. John Bodle: -- may show.
Justice William J. Brennan: -- that conversation was if he would not produce the plaintiff for the deposition but that he would be at the pretrial the following day?
Mr. John Bodle: That was the gist of the conversation.
Justice William J. Brennan: Well when did you first learn that he would not attend the pretrial?
Mr. John Bodle: When I was in the Gary, at the Office of the attorneys where the deposition of the plaintiff was to have taken place.
I received a phone call from the judge's secretary subsequent to the time that she had had this telephone call from Mr. Darlington.
Justice William J. Brennan: But you did not hear it directly from Mr. Darlington?
Mr. John Bodle: I never had any direct correspondence with or any phone calls from Mr. Darlington about that note sir.
Justice William J. Brennan: So you just went to the pretrial (Voice Overlap) --
Mr. John Bodle: I went to the pretrial at the notice of time.
Mr. Darlington was not there and the Court informed me again of what had happened and said, "Let's wait a while and see whether he comes", and of course he did not.
Justice Hugo L. Black: Does the record show whether any effort was made to contact the plaintiff himself before his case was dismissed?
Mr. John Bodle: I'm quite sure that the record does not show any such efforts Your Honor.
And I would like to reply to the fact that there is no need to do that because of two things.
First of all, we're all acquainted with the (Inaudible) clause of agency and of attorney and client and in -- and that the inaction of attorney is attributable to his client.
But secondly, I think that application of that rule is entirely just in this case because if -- a perfectly reasonable inference from the long delay and long inaction, the plaintiff never once tried and move his case ahead and if he treasured the case and thought it was valid and valuable I think he would've done so and I submit to the Court that the --
Unknown Speaker: Could you summarize the allegation to the complaint, I don't find them in the record.
Mr. John Bodle: The -- I have had stated them just generally in my brief, "The automobile driven by the plaintiff ran into the side of a train of the Wabash Railroad."
I think it hit about 53 cars back in the engine or some such figure.
Justice William O. Douglas: It's not -- not an FELA --
Mr. John Bodle: Yes sir.
Justice William O. Douglas: -- case?
Mr. John Bodle: Oh no, this is a --
Unknown Speaker: (Inaudible)
Mr. John Bodle: Just a railroad crossing case Your Honor.
Mr. Justice Douglas where the plaintiff was driving a car down the road and didn't stop and ran into the train.
Justice Tom C. Clark: I don't quite understand that deposition yet I'm sorry, a little rude, yes.
Mr. John Bodle: Well, I have sent a notice --
Justice Tom C. Clark: (Inaudible)
Mr. John Bodle: -- to the plaintiff.
Justice Tom C. Clark: -- of the plaintiff?
Mr. John Bodle: Yes, sir.
Justice Hugo L. Black: The case has been pending four or five years, isn't it?
Mr. John Bodle: Yes, it had You Honor.
This is not the first effort that had been made on those lines.
Justice Hugo L. Black: Who told you that the plaintiff would not to be present to file that?
Mr. John Bodle: Yes, Your Honor.
Justice Hugo L. Black: Do you live in Gary?
Mr. John Bodle: No, sir.
I live in Lafayette, Indiana.
I travel about 110 miles to Hammond for the pretrial.
Chief Justice Earl Warren: Mr. Bodle, I understood Mr. Darlington to -- to say that the last continuance in this case that had come about by at your request and I didn't hear you mention anything that in reciting the facts.
Mr. John Bodle: Well, I didn't mean to cross over but he's already mentioned it, let me go back to it.
In the spring of 1959, the trial court had the matter of -- of its own volition to consider dismissing for his this lack of diligence.
On the same day that he decided to keep the case on the docket, he made this trial setting.
Chief Justice Earl Warren: Made what?
Mr. John Bodle: He made the trial setting at that same time.
Chief Justice Earl Warren: Yes.
Mr. John Bodle: It happened to be a very bad time.
The record does not show it but of course in asking for a continuance, we're not asking that never be reset but it was a very immediate thing for us in a very bad time and it was -- although the volition came from us, it was instantly agreed in or agreed to by the plaintiff.
And then they --
Chief Justice Earl Warren: But it was made at your request.
Mr. John Bodle: It was made at my or not mine personally but --
Chief Justice Earl Warren: Yes.
Mr. John Bodle: -- on our side of the case and consented to by plaintiff.
Chief Justice Earl Warren: And the next action was a dismissal.
Mr. John Bodle: Well, in the meantime we had filed some additional interrogatories which is on the record and we've done some other the things that don't appear in the record but the last action on the record where the interrogatories which we filed to update the information we got by our original set of interrogatories some years early.
Justice William J. Brennan: But when was the pretrial notice?
Mr. John Bodle: Pretrial was noticed September 30th, 1960.
Justice William J. Brennan: Well that -- that -- that was nothing, I take it in which either of you had any part that was --
Mr. John Bodle: This was done by the Court.
Justice William J. Brennan: By the Court?
Mr. John Bodle: Yes, Your Honor.
Justice William J. Brennan: Of -- whatever the processes are in the clerk's office.
The clerk's office sent out the notice of pretrial, does it?
Mr. John Bodle: That's correct Your Honor.
The judge makes up his pretrial docket as --
Justice William J. Brennan: And the dismissal then --
Mr. John Bodle: -- the Court sent out the notice.
Justice William J. Brennan: -- was not the last they intended, maybe the last thing that happened.
But after your consent to the continuance, your adversary sent the continuance.
Then there was action by the Court for notice of pretrial, is that it?
Mr. John Bodle: Yes, sir.
That -- that's right.
Chief Justice Earl Warren: Would you feel that if you had been absent that day because of some other business and the judgement unjustified in dismissing the complaint against you on the ground that you passed for the last continuance then did not show up for this pretrial?
Mr. John Bodle: Well no, he didn't ask for the last continuance.
Chief Justice Earl Warren: No, I say you did.
Mr. John Bodle: Yes.
Chief Justice Earl Warren: Now, suppose you had been the one who didn't show up for the pretrial and the judge had said, "Well, this man asked for continuance, some time ago we gave it to him now he isn't here today so I'm goi -- I'm going to -- we'll take some (Inaudible)
Of course he wouldn't dismiss it, no but --
Mr. John Bodle: Well, Your Honor, I submit that --
Chief Justice Earl Warren: Striking defense --
Mr. John Bodle: -- it doesn't matter --
Chief Justice Earl Warren: -- striking defense is just the fact --
Mr. John Bodle: Striking a defense --
Chief Justice Earl Warren: Isn't that would've been --
Mr. John Bodle: -- entering a default judgment, this would've been perfectly within the powers of the Court.
Chief Justice Earl Warren: Alright.
Justice Hugo L. Black: It would've been --
Mr. John Bodle: And --
Justice Hugo L. Black: -- within the power but was that in the problem?
Mr. John Bodle: No, sir.
You then must look at the surrounding circumstances and the fact that although the Court had allowed the case after a two year delay to stay on the docket.
Plaintiff had done nothing further and had evidence to complete, disregard for his claim.
And I submit that the lack of importance which plaintiff's counsel attached to it was merely a reflection of the plaintiff's own attitude because trial orders as we know as a practical matter you don't and you can't let a case drag that way if your client is interested and it --
Justice Hugo L. Black: Would the court --
Mr. John Bodle: -- just doesn't happen.
Justice Hugo L. Black: -- have power to impose the punishment on the lawyer instead of the plaintiff?
Mr. John Bodle: He would have that power Your Honor if he wanted to adopt theory of contempt.
It seems to me that that might be somewhat harsh on the counsel when you consider that what he was doing here probably merely reflected the fact of plaintiff's personal lack of great interest in the case --
Chief Justice Earl Warren: Well, was that still in the (Voice Overlap) --
Mr. John Bodle: -- as shown by this long delay.
Justice Hugo L. Black: (Voice Overlap)
Mr. John Bodle: This is --
Justice Hugo L. Black: -- in the record.
Mr. John Bodle: This is found only -- I suggest to the Court by the fact that he had never taken the least initiative to attempt to move the case forward.
Justice William J. Brennan: Aren't you really suggesting that he was holding it over your head in hopes that the railroad would pay substantive settlement?
Mr. John Bodle: Yes Your Honor that's exactly what I'm suggesting.
Unknown Speaker: You said something about on what's here --
Chief Justice Earl Warren: Well --
Unknown Speaker: -- is that a --
Justice Hugo L. Black: The District Court's ruling on this?
Mr. John Bodle: The District Court has a one year rule permitting dismissal where a case has been inactive for that amount of time.
Incidentally, of course that's only one type of lack of prosecution, a failure to comply with the border or a setting is a pacific type of failure to prosecute which we had involved here.
Justice William J. Brennan: Incidentally under the Federal Rules, if you have followed the motion route on his none appearance, would there have been any requirement under the rule that you served a notice of motion (Voice Overlap) --
Mr. John Bodle: A motion which originates with the defendant, of course I would've had to file a motion and notice of that would've gone to the party.
But here where the trial court moves sua sponte it has already exercised its discretion and it knew from the telephone conversation of counsel of the secretary where he alleged the facts to be and the door of the trial court was opened under the Rule 60 (b).
If the counsel for petitioner felt that he had not explained all the facts and that he had meritorious facts to present that would have made the trial court exercise its discretion in the opposite manner --
Justice William J. Brennan: Well what I'm getting at is --
Mr. John Bodle: -- he could've --
Justice William J. Brennan: I think you know that you had a motion --
Mr. John Bodle: Which I had --
Justice William J. Brennan: You did not --
Mr. John Bodle: -- rushed out and did not file.
Justice William J. Brennan: Did not file but had you filed it and Judge Swygert chose to proceed under it, there could not have been any action of dismissal that day, there would've had to be a service of the motion on your adversary.
Mr. John Bodle: That's correct.
That's right Mr. Justice Brennan.
By the same talking, the courts often have power to make a decision and then a notice period is granted and of additional facts are desired to be presented.
They are presented as in a case where a third party complaint is filed or counterclaim is filed.
The party can be heard and the action set aside.
This is the whole purpose of Rule 60 (b).
Justice William J. Brennan: And incidentally, was -- was there a motion before Judge Swygert to set aside the order of dismissal?
Mr. John Bodle: No, Your Honor and this is the last point I want to make.
I think this is of greatest significance because if there had been any facts which the counsel wanted to bring before the trial court to try to explain exactly what is undisclosed alleged work in another city was and he never filed any affidavit or anything about that.
He could have and we submit should have in fairness to this Court come before the trial court and said, "Now here are my facts.
I want a complete hearing."
He had the right to ask for that complete hearing and he failed to do so.
Justice William J. Brennan: Was this --
Mr. John Bodle: Now he didn't --
Justice William J. Brennan: -- a 60 (b) motion?
Mr. John Bodle: This would've been a 60 (b) motion, I submit, yes Mr. Justice Brennan.
And had he done that then there'd be no worry here as to what actually happened that day in Indianapolis.
Now, he didn't have to proceed that way, I don't contend for that for the moment but I do say that if he chooses not to then let him not complain that he had no opportunity for a hearing because the opportunity was there and he elected not to take advantage of it.
There had been many cases in which the power to dismiss for failure to appear at a pretrial has been -- has been recognized and applied.
The Wisdom versus Texas case, (Inaudible) versus Eastern Airlines where apparently very serious personal injury counter claim was dismissed for that sole reason.
The case of the (Voice Overlap) awaits --
Justice William J. Brennan: What is it the Court said in the situation -- cover this situation in their rules.
Mr. John Bodle: Some of District Courts which may have had more frequent trouble with this have passed pretrial rules which specifically state dismissal may follow forthwith.
Justice William J. Brennan: As the rules of this District Court do not well provide.
Mr. John Bodle: The rules of this -- this District Court where I don't think this type of disobedience or disregard has been a matter of concern.
Had never had occasion to enact any such rule.
And that is why of course Federal Rule 83 permitting the Court leeway to act in unusual situations not provided for in the Rule is so important.
Chief Justice Earl Warren: (Inaudible)