Opinion
Action wherein the plaintiff filed a motion for dismissal without prejudice. The United States District Court, District of Columbia, Youngdahl, J., held that where at time case was called for trial on October 7, 1957, plaintiff's counsel stated that he could not prove a cause of action if he were to be restricted to those issues remaining after pretrial order of October 11, 1956 and of partial summary adjudication on February 27, 1957, in view of the time case had been pending, in view of numerous matters that had been litigated and important rights acquired by defendants as result of progress of pretrial litigation, and in view of statement by counsel for plaintiff that he could not prove a case on the issues so limited, case would be dismissed with prejudice for want of prosecution.
Order in accordance with opinion.
I. William Stempil, Washington, D. C., for plaintiff.
Paul R. Connolly, H. Mason Welch, Washington, D. C., for defendants.
YOUNGDAHL, District Judge.
Upon remand of this case on October 6, 1958, the Court carefully reconsidered and studied the transcript of October 7, 1957.
Counsel for plaintiff made no objection to having this case set for trial on October 7, 1957, and appeared in court apparently ready for trial on that date. When the case was called for trial, plaintiff's counsel made a statement to the Court that he could not prove a cause of action if he were to be restricted to those issues remaining after the pre-trial order of Judge Kirkland on October 11, 1956 and the partial summary adjudication of Judge McGuire on February 27, 1957. Accordingly, counsel for plaintiff moved for a dismissal without prejudice. Counsel for defendants objected to a dismissal without prejudice and requested a dismissal with prejudice for want of prosecution.
In view of the time the case had been pending, and in view of the numerous matters that had been litigated in this case prior to October 7, 1957 and the important rights acquired by the defendants as a result of the progress of this pre-trial litigation, and in view of the statement made by counsel for plaintiff that he could not prove a case on the issues so limited, it is the opinion of this Court that the case should be dismissed with prejudice for want of prosecution. Walker v. Spencer, 10 Cir., 1941, 123 F.2d 347; Lynch v. National Bondholders Corporation, D.C.1942, 2 F.R.D. 376; Rollison v. Washington National Insurance Co., 4 Cir., 1949, 176 F.2d 364; Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C. following § 2072.
An order to that effect has this day been rendered.