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Donnelly v. Johns-Manville Sales Corp.

decided: May 3, 1982.

EDMUND J. DONNELLY, APPELLANT
v.
JOHNS-MANVILLE SALES CORPORATION; FIBREBOARD CORPORATION; OWENS-CORNING FIBERGLAS CORPORATION; THE CELOTEX CORPORATION; EAGLE-PICHER INDUSTRIES, INC.; ARMSTRONG CORK COMPANY; GAF CORPORATION; KEENE CORPORATION; UNARCO INDUSTRIES, INC.; RAYBESTOS-MANHATTAN, INC.



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY

Before Gibbons, Sloviter and Becker, Circuit Judges.

Author: Sloviter

Opinion OF THE COURT

Plaintiff who worked as an asbestos insulation installer for many years filed suit on December 30, 1980 against ten corporations engaged in the mining, processing and/or manufacturing, sale and distribution of asbestos and asbestos insulation products, alleging that he has suffered injuries proximately caused by his exposure to asbestos products designed, manufactured, and sold by defendants. The complaint alleges breach of express and implied warranties by defendants, negligence, and that the products in question were unreasonably dangerous because they were defective and because of defendants' failure to adequately warn. For reasons which do not appear on the record, the action was filed in the United States District Court for the Eastern District of Texas by Texas counsel retained by plaintiff. On March 6, 1981 on motion of defendant Johns-Manville Sales Corporation the action was ordered transferred to the United States District Court for the District of New Jersey, Newark Division, the district and division in which plaintiff resides.

Once transferred, the Clerk of the District Court of New Jersey mailed to all counsel, including plaintiff's, a Notice of Allocation and Assignment, filed March 12, 1981, which advised that the action was being allocated to Trenton and assigned to Judge Ackerman. The following appears at the bottom of that notice:

The Court has Directed that counsel be informed that there will BE STRICT ENFORCEMENT OF GENERAL RULE 15 of the local rules of this court, (completion of discovery proceedings), and sanctions may be imposed for failure to comply with the rule and orders entered pursuant thereto: including DISMISSAL OF THE ACTION and SUPPRESSION OF THE DEFENSE.

Please be advised that you must obtain local counsel from New Jersey pursuant to our General Rules. You should obtain counsel in 20 days from receipt of this letter, if not, it may be subject to dismissal.

App. at 13a (emphasis in original). An order to show cause signed by Judge Ackerman was filed June 1, 1981 directing plaintiff's counsel to show cause why the action should not be dismissed for failure of plaintiff to abide by the instruction of the court to have local counsel file an appearance within 20 days of the receipt of the notice of allocation and assignment. The order to show cause was made returnable on June 15, 1981 at 10:00 a. m. Hearing nothing from plaintiff's Texas counsel, Judge Ackerman had his clerk call the Texas office of plaintiff's counsel to advise counsel that the matter would be dismissed if no action was taken by counsel.

At the time and return date of the order to show cause, no counsel appeared on behalf of plaintiff, and the court ordered the complaint dismissed. At approximately 3:00 p. m. on that date local counsel telephoned Judge Ackerman and advised him that he would be entering his appearance on behalf of plaintiff. Nonetheless, on the following day, June 16, 1981, the court signed the order dismissing the action. Plaintiff appeals.

Initially, we note that the order dismissing the action was made without prejudice, without sanctions, and without costs. Under ordinary circumstances, a dismissal of the complaint without prejudice would cause plaintiff no adverse consequences. However, plaintiff's counsel has stated that suit was filed in Texas as the statute of limitations was about to expire and that by the time the suit was dismissed in New Jersey the statute of limitations had run. He claims, without any contradiction by defense counsel, that in reality the order had the inevitable effect of a dismissal with prejudice, and we will so treat it.

We assume that in this case, the court dismissed the action pursuant to Rule 41(b) which governs involuntary dismissals and provides, in part, "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him." Fed.R.Civ.P. 41(b).*fn1 The rule does not explicitly provide for sua sponte dismissals by the court, but we believe that it is broad enough to authorize such dismissals on the same basis as it authorizes dismissals upon motion of the defendant. Although the original order dismissing the action was not accompanied by reasons setting forth the basis of such dismissal,*fn2 the court set forth its rationale for the dismissal at the hearing on plaintiff's motion for reinstatement of the complaint which had been filed within two days of the dismissal. At the hearing, the court stated:

I hope I have indicated on the record that I really feel that counsel's conduct in this case, in terms of ignoring the orders of this court with respect to getting local counsel making an appearance in this court, in light of two written notices, and one personal telephone call, is sufficiently egregious in my judgment so as to cause me to deny the motion made today by plaintiff to reopen this matter.

App. at 43a. The court's statement, albeit ambiguous, is susceptible of being construed as indicating that dismissal in this case was imposed as "punishment", a procedure which the Supreme Court has disapproved. See Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 210, 78 S. Ct. 1087, 1094, 2 L. Ed. 2d 1255 (1958); Hammond Packing Co. v. Arkansas, 212 U.S. 322, 350-51, 29 S. Ct. 370, 379-80, 53 L. Ed. 530 (1909). We, however, rest our decision on another basis.

Before proceeding to consider the merits in this action, we note at the outset that the district judge to whom this case had been assigned and whose order is under review has performed Herculean tasks in coping with the extensive number of asbestos litigation cases which are pending in the United States District Court in New Jersey, most of which have been assigned to him. It may be that because of the sheer number of such cases, the district court felt that it was necessary to signal all counsel that the pretrial orders of the court must be fully and timely complied with in order that the cases can be expeditiously processed toward disposition. The need for such compliance is self-evident. However, we are ...


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