Summary
denying appellant's motion to dismiss, but granting appellee's because appellant violated briefing schedule and caused appellee to file motion to dismiss
Summary of this case from American Automobile Manufacturers Ass'n v. Commissioner, Massachusetts Department of Environmental ProtectionOpinion
No. 14106.
May 6, 1970.
C.R. Wheatly, Jr., Beaufort, N.C., and Frank M. Wooten, Jr., Greenville, N.C., for appellant.
Sam B. Underwood, Jr., Greenville, N.C., Fred Helms, Charlotte, N.C., and Eugene J. Metzger, Washington, D.C., for appellees.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and BUTZNER, Circuit Judges.
Despite repeated inquiries from our Clerk, to which no response was made, the appellant's counsel failed to comply with the briefing schedule of the Federal Rules of Appellate Procedure. Finally, after the appellee moved to dismiss the appeal, the appellant proposed to voluntarily dismiss under FRAP 42(b).
We believe, however, that voluntary dismissal is not appropriate when the appellee has been put to trouble and expense because the appellant has not complied with the rules of court. Accordingly, the appellee's motion to dismiss is granted. Costs on appeal are taxed against C.R. Wheatly, Jr., Esquire, one of appellant's counsel, without contribution from the appellant or his other counsel.