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Circuit Judges Kearse and Cabranes, and Judge Eaton (U.S. Court of International Trade)
Arnold E. DiJoseph, III, for Plaintiffs-Appellants
Decided January 14, 2010
In this case, the Plaintiff appealed from a Judgment of the United States District Court for the Southern District of New York, which dismissed his case as a result of his attorney arriving at court about 40 minutes late on the day the trial was to start. Mr. DiJoseph represented the Plaintiff on his appeal to the United States Court of Appeals for the Second Circuit where he argued that the District Court committed reversible error in dismissing plaintiff's complaint for failure to prosecute.
The Circuit Court of Appeals agreed with Mr. DiJoseph’s argument and stated in its opinion, “Rule 41(b) permits a district court to dismiss an action when a plaintiff fails to prosecute or to comply with a court order. Fed.R.Civ.P. 41(b). We review a district court's dismissal of a complaint for failure to prosecute for an ‘abuse of discretion.’ (‘A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence or rendered a decision that cannot be located within the range of permissible decisions.’ We are mindful, however, that dismissal of a complaint under Rule 41(b) is a ‘harsh remedy’ that should ‘be utilized only in extreme situations.’
The propriety of a Rule 41(b) dismissal depends on the balancing of the following factors, none of which is dispositive: (1) the duration of the plaintiffs' failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendants were likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal.
In the present case, the District Court dismissed the complaint because plaintiff's counsel failed to appear on time for the scheduled start of trial. After taking all factors into account, we conclude that the District Court dismissed this complaint prematurely. Most importantly, the first factor counsels against dismissal in this case. Here, the District Court dismissed the complaint after a less-than-one-hour delay. This was not significant. Furthermore, the District Court had not previously put plaintiff's counsel on notice that any delay could result in dismissal. Finally, there is no evidence that the District Court considered the feasibility of other, less dramatic, sanctions. There is no evidence that the third or fourth factors favor dismissal in this case. We therefore conclude that dismissal for failure to prosecute was inappropriate.
For the reasons stated above, the judgment of the District Court is VACATED and the cause is REMANDED to the District Court for trial.”
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