Grounds for Dismissal

Grounds for Dismissal

Rule 41(b) lets a defendant move to dismiss on either of two grounds: the plaintiff “fails to prosecute,” or the plaintiff fails “to comply with these rules or a court order.”¹ The rule joins the grounds with “or,” so one is enough. They describe different defaults. A plaintiff who fails to prosecute lets the pace of the case lapse, filing suit and then doing too little to carry it toward trial. A plaintiff who fails to comply disobeys, ignoring a rule or an order even while otherwise active in the case.

Both defaults draw the same heavy sanction. The defendant may seek dismissal of “the action or any claim against it,” and unless the dismissal order states otherwise, the dismissal operates as an adjudication on the merits.² That means an action based on the same claims cannot be brought again in the same court.³ Because the sanction is so heavy, neither ground works by formula. The rule sets no number of idle months and lists no orders whose violation justifies dismissal. Courts read the case history instead: what the plaintiff had to do, what the plaintiff did, and how the whole record looks.

One version of the rule’s text places a third motion beside these two grounds. After the plaintiff in a nonjury trial has finished presenting evidence, the defendant may move to dismiss on the ground that the facts and the law show no right to relief.⁴ That motion tests the plaintiff’s case rather than the plaintiff’s conduct, and a later part of this chapter takes it up. The conduct-based grounds come first, beginning with failure to prosecute.

Failure to Prosecute

Rule 41(b) does not define failure to prosecute, but the motions that invoke it follow a recognizable pattern. The defendant typically complains that the plaintiff has taken no appropriate steps to move the case to trial, has missed scheduled hearings or conferences, or has delayed continually or sought continuances to stretch the normal time periods.⁵ To prosecute is to carry a case forward, so a plaintiff fails to prosecute by standing still or by stalling: by letting the file go dormant, or by keeping the case technically alive while missing the dates that would move it.

Three interests explain why courts care. One court, quoting an earlier decision, wrote that Rule 41(b) “serves not only to protect defendants but also to aid courts in keeping administrative control over their own dockets and to deter other litigants from engaging in similar dilatory behavior.”⁶ The deterrence interest explains why opinions speak of dilatory conduct in general terms, since a system that never answered neglect would teach every plaintiff that deadlines cost nothing. Against those interests stands the preference for deciding cases on the merits. Courts weigh their reluctance to dismiss against the prejudice to the defendant that delay is presumed to cause, and they grant dismissal for failure to prosecute only when the plaintiff has been particularly dilatory.⁷

The clearest example is the case that simply stops. In Lumbermen's Mutual Casualty Co. v. Wright, the district court applied Rule 41(b) on its own motion in July 1954 and dismissed a suit in which, as its order recited, “[n]o forward step” had been taken for more than three years, adding that it acted to clear its docket.⁸ The opinion describes a file around which spiders had spun cobwebs for nearly six years. A file like that needs no missed hearing and no disobeyed order, because the default is the absence of any step toward trial. The dismissal did not last. The order gave the plaintiff ten days to seek reinstatement, and when the plaintiff’s attorney asked, the judge, “apparently satisfied with the plaintiff’s explanation,” directed the clerk a week later to reinstate the suit.⁹ Dormancy makes a case a candidate for dismissal. Whether the court should actually impose the sanction is a separate question, to which later sections return.

Age alone, then, does not trigger dismissal. The question is whether the plaintiff’s own conduct produced the delay, and courts hesitate to dismiss when the defendant bears part of the responsibility for the slow pace.¹⁰

Most motions rest on a series of small defaults that together show a plaintiff who is not moving the case. 3 Penny Theater Corp. v. Plitt Theatres supplies a detailed record of that kind, which the court called “a clear record of dilatory conduct by the plaintiff.”¹¹ The first strand was attendance. A magistrate was supervising discovery and final pretrial preparation and holding periodic status hearings, yet plaintiff’s counsel failed to appear at the first hearing, on August 1, 1984, after writing from Phoenix, Arizona that he would be absent, and failed to appear again at the next, on January 15, 1985.¹² The second strand was scheduling. Counsel received three extensions of the date for filing pretrial materials, to December 15, 1985, February 21, 1986, and April 22, 1986, and was refused a fourth. On April 22, the final deadline, counsel filed no draft pretrial order and instead filed a notice that the plaintiff intended to move for a fifth extension on May 1. The defendants then moved to dismiss for failure to prosecute.¹³ No single lapse decided the matter. The pattern did.

A single absence can also count when it is the latest step in a long pattern. In Link v. Wabash R.R. Co., counsel telephoned the Hammond courthouse from Indianapolis, about 160 miles away, on the morning of a pretrial conference. He asked the judge’s secretary to tell the judge that he was busy preparing papers for the Indiana Supreme Court, could not arrive by one o’clock, and would come Thursday afternoon or any time Friday if the conference could be reset.¹⁴ The district court dismissed on its own initiative, and the Supreme Court approved the dismissal as resting on the plaintiff’s absence from the conference together with its earlier dilatoriness.¹⁵ The earlier record was substantial. The plaintiff had left the defendant’s interrogatories unanswered from August 17, 1957, until the day before the hearing on an order to show cause why the case should not be dismissed, more than nineteen months later. The plaintiff had consented to the next delay, had made no effort to bring the case to trial, and had moved for more time when the defendant served further interrogatories. Against that background, the district court could treat the missed conference as “merely another delaying tactic.”¹⁶

Link and 3 Penny show the same ground in different shapes. In 3 Penny, several kinds of default piled up within a young case. In Link, one absence capped a long history of delay. Both courts read the conduct as a whole. Link also shows a court acting without any motion from the defendant, a feature this chapter takes up under dismissal on the court’s initiative.

Failure to prosecute also reaches a plaintiff who never presses a claim against a named party. In iFlex Inc. v. Electroply, Inc., CIT was a named defendant against whom no claims were pending, and CIT asserted no claims against anyone else. The court dismissed CIT, reasoning that a contrary holding would unfairly prejudice CIT by making it remain a named party in a lawsuit in which no claims were pending against it.¹⁷ That default involves no missed hearing and no ignored order. The suit simply held nothing against that defendant for the court to decide. Because the rule reaches “any claim against it,” CIT could leave while the rest of the suit went forward.¹⁸

Failure to Comply

The second ground applies when the plaintiff fails to comply with the Federal Rules of Civil Procedure or with a court order.²⁰ Where the first ground asks whether the case is moving, this one asks whether a command existed and the plaintiff disobeyed it. The command may come from the Rules themselves or from an order entered in the particular case. Because the grounds are alternatives, a plaintiff who attends every conference and files every paper on time can still face a motion for ignoring a single order.

Rules and orders work only if disobedience carries a price the plaintiff cannot undo. A plaintiff who could ignore an order, lose the claim, and file again would have paid only the cost of starting over. Dismissal under this ground is therefore usually with prejudice, and the plaintiff cannot avoid the penalty by suing again, because the dismissal receives full preclusive effect.²¹ Other rules reach similar misconduct. In extreme cases a court may sanction violations of Rule 11, Rule 26(g), or Rule 37 with an order that amounts to deciding the claim for the adverse party, and those sanctions also need claim-preclusive effect to work. The same discussion groups dismissal for failure to prosecute with those dispositions.²²

Because dismissal ends the claim without a trial, courts apply this ground sparingly. Dismissal for violating a court order is a drastic sanction that is seldom imposed, except for an extreme case of willful violation of a discovery or pretrial-conference order.²³ Which violations qualify depends on the rule or order involved and on the litigation history of the case, and dismissal typically falls on serial violators who have abused the litigation process.²⁴ Courts once thought the power suitable only for extreme situations. They have used involuntary dismissal more often in recent years, but it remains a drastic sanction.²⁵ A court can soften the result by entering the dismissal without prejudice, which it may do when it does not view the conduct as too heinous.²⁶

Both plaintiffs violated an order, yet only the second record shows what the authorities call extreme. The first is a single, explained lapse in an otherwise active case, and a defendant who moves to dismiss on that record asks the court to end a claim over a delay that disrupted nothing. The second is repeated, warned, and unexcused defiance of discovery orders, the pattern that justifies dismissal with prejudice.

Timing sets the first boundary, because a plaintiff cannot fail to comply with an order before the time to comply has run. In Advance Magazine Pub. Inc. v. Leach, the defendant moved to dismiss for noncompliance, and the court denied the motion as premature: “Plaintiff has not yet had time to complete its compliance.”²⁷ A plaintiff in the middle of performing an order is complying with it. A rule that let a defendant move the moment an order issued would turn every order into an instant threat of dismissal. The ruling concerns timing alone. It gives no shelter to a plaintiff who lets the period lapse with no performance and no explanation, and a motion made then would turn on how serious the violation was.

The second boundary is the line between obstreperous and dilatory. In J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp., the district court had ordered the parties to file stipulations of undisputed facts by July 1 and a final pretrial order by August 1, and Anderson refused to reduce at least some facts to a stipulation.²⁸ The court of appeals held that Anderson, though obstreperous, could not “be characterized as dilatory to the point of manifesting a failure to prosecute.” A pretrial conference had been held on May 8, 1975, the parties had filed pretrial statements and lists of witnesses and exhibits, and Edwards had been allowed to file an amended complaint.²⁹ Edwards and Westinghouse could not rest on Link. There the Supreme Court approved a district court’s inherent power to dismiss on its own initiative for a plaintiff’s absence from a pretrial conference on top of earlier dilatoriness, and that holding does not reach a refusal to stipulate.³⁰

The court also described the source and limit of the power at stake. Behind the face of Rule 16, it said, lies “a narrowly circumscribed area of power” that a judge may use to compel obedience to pretrial requests and demands, a power founded either on Rule 41(b) or on the inherent power of courts to manage their calendars.³¹ The lesson for noncompliance motions is that a disobeyed pretrial demand does not by itself justify dismissal. The conduct must also be serious enough, or dilatory enough, to bring the sanction into play.