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05/18/67 David Zaroff, v. Talley R. Holmes Et Al.

May 18, 1967





Petition for Rehearing En Banc and for Rehearing before the Division Denied July 21, 1967.


Fahy,* Burger and McGowan, Circuit Judges. Burger, Circuit Judge (concurring).


McGOWAN, Circuit Judge:

This appeal presents a question as to the proper construction of Local Rule 12 of the District Court. It challenges an award in that court of summary judgment to appellees upon their contention that a dismissal of an earlier suit was with prejudice, and therefore was res judicata of the merits of the pending action. The earlier dismissal was for want of prosecution in that counsel for appellant failed to appear at a pretrial conference. Since it is undisputed that no blame of any kind attached to appellant for this failure, and since Local Rule 12 does not expressly state that dismissals pursuant to it are with prejudice, we do not view it as requiring the result reached by the District Court. I

In 1963 appellant brought a civil action in the District Court against appellees. When, on April 10, 1964, his first counsel withdrew, appellant immediately retained a new lawyer who entered his appearance the following day and, within two months, filed a certificate of readiness. Not long after this, however, the new lawyer suffered a final criminal conviction in the Maryland courts, and his attention appears to have been diverted from appellant's affairs. In particular, he failed to respond to a notice of pre-trial hearing; and, on September 11, 1964, the pre-trial examiner entered an order dismissing the complaint. Appellant knew nothing of the pre-trial conference, nor of the dismissal order. When his counsel terminated his practice finally in January, 1965, appellant asked that all pending matters be turned over to counsel who appeared for appellant in this appeal. That lawyer knew nothing of the suit terminated as above described, nor did he find out about it until appellant saw the property involved advertised for foreclosure, and inquired of counsel as to the status of the suit.

Counsel promptly filed a new action founded upon the same circumstances. It was this complaint which was met with the defense of res judicata, and the reinstatement of which is the object of the appeal before us. II

Pre-trial in the District Court is the subject of Local Rule 12. Paragraph (b) of that rule is addressed to default in observance of the prescribed procedure; and, in relevant part, it provides that "if counsel for plaintiff fails to appear at the time set for pre-trial hearing before the Pre-trial Examiner, the Examiner shall enter his default." It was in response to this provision that the Pre-trial Examiner entered the order of dismissal set forth in the margin. *fn1 There is no rule provision assuring examination of this action by the Pre-trial Judge, inasmuch as paragraph (f) of Local Rule 12 provides that, unless counsel files written objections within five days, the order signed by the Pre-trial Examiner or Assistant Pre-trial Examiner "shall become the order of the court." *fn2

The silence of Local Rule 12 on the question of whether a dismissal order of the kind here involved is with or without prejudice is in sharp contrast with Local Rule 13. That rule bears the title, "Dismissal For Failure To Prosecute." Paragraph (a) provides that where a claimant fails for six months to comply with any requirement relevant to the prosecution of his claim, or to take other action to move his claim towards judgment, the Clerk shall enter an order that the claim stands "dismissed without prejudice." It may be that the District Court regarded dismissal for failure to appear at pre-trial as a special instance of dismissal for want of prosecution, and intended the characterization of "without prejudice" contained in Rule 13 to apply to it. This would explain the omission of any characterization whatsoever from Rule 12. And it does seem somewhat anomalous that failure to take litigating steps of the consequence contemplated in Rule 13 should entail a dismissal without prejudice, whereas a pre-trial lapse under Rule 12 should forfeit the claim.

There is, in any event, nothing before us to indicate that this seeming disparity in treatment was by design. *fn3 The local rules in their present condition are, at best, ambiguous; and we are not prepared, in the circumstances of this case, to resolve that ambiguity against appellant.

Appellees point to Rule 41(b) of the Federal Rules of Civil Procedure, which deals with dismissals for want of prosecution and which provides that, unless the court otherwise specifies in its order, a dismissal shall operate as an adjudication on the merits. It is urged that this requires the order of dismissal in this case to be treated as prejudicial in nature, with appellant remitted to Federal Rule 60(b) for relief against it because of excusable neglect. We note only in passing that the one-year limitation period of Rule 60(b) had run before appellant learned of the dismissal of his suit, but, in any event, we do not regard Rule 41(b) as dispositive of the construction properly to be placed upon Local Rule 12. *fn4 It is the latter which governs in this instance; and if it is to have the effect claimed for it, it should speak much more clearly to that end than it does now.

The judgment appealed from is ...

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