Failure to Prosecute

Failure of the plaintiff (in a civil case) or the prosecutor (in a criminal case) to diligently pursue the case after it is filed, which can be grounds for dismissal of the case.

Civil Cases

“The plaintiff in a civil action has an affirmative duty to prosecute his case. Failure to prosecute is grounds for dismissal. Implicit in the duty to prosecute is a duty to keep the court apprised of one’s mailing address.  In the present case, plaintiff has failed to prosecute by not informing the court of his address. Accordingly, IT IS HEREBY ORDERED THAT this action is dismissed without prejudice.”  Watts v. Secretary of Health and Human Services, 1993 WL 255524, at *1 (N.D. Cal. June 30, 1993).

“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule–except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19–operates as an adjudication on the merits.” Federal Rules of Civil Procedure, Rule 41(b).

“Mere lapse of time does not warrant dismissal when the plaintiff has been diligent throughout; speed simply for the sake of speed is not the purpose to be served.”  Cherry v. Brown-Frazier-Whitney, 548 F.2d 965, 969 (D.C. Cir. 1976).

“The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted.”  Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 367 (5th Cir. 1967).

“No exact rule can be laid down as to when a court is justified in dismissing a case for failure to prosecute. Each case must be looked at with regard to its own peculiar procedural history and the situation at the time of dismissal.”  Sandee Mfg. Co. v. Rohm & Haas Co., 298 F.2d 41, 43 (7th Cir. 1962).

“[In addition to FRCP 41(b), the Supreme Court has recognized the inherent power of a district judge to dismiss a case for the plaintiff’s failure to prosecute. ‘The authority of a federal trial court to dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot seriously be doubted.’  A district judge may even, sua sponte, and without notice to the parties, dismiss a complaint for lack of prosecution, and such dismissal is largely a matter of the judge’s discretion.  It is plaintiff’s obligation to move his case to trial, and should he fail to do so in a reasonable manner, his case may be dismissed with prejudice as a sanction for his unjustified conduct. Dismissal is warranted where there is a lack of due diligence in the prosecution of the lawsuit by plaintiff.”  West v. City of New York, 130 F.R.D. 522, 524 (S.D.N.Y. 1990), citations omitted.

Criminal Cases

“The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in: (1) presenting a charge to a grand jury; (2) filing an information against a defendant; or (3) bringing a defendant to trial.”  Federal Rules of Criminal Procedure, Rule 48(b).

“The delay issue most frequently presented to an appellate court is the question whether the defendant’s constitutional right to a speedy and fair trial was impaired by the passage of time. Although prejudice to the defendant is only one of the four factors to be weighed in resolving that issue, we may assume arguendo that delay would always be considered harmless error unless the defendant-appellant made a persuasive showing of prejudice. That assumption is of no avail to the government in this case, however, because, as we have already pointed out, Rule 48(b) authorizes dismissals on non-constitutional grounds and, as the district court correctly noted, expressly authorized dismissals in certain cases in which no prejudice has been shown. Thus, the mere fact that no prejudice was shown does not require reversal.  On the other hand, the mere fact that some unnecessary delay occurred does not require affirmance. ‘Rule 48(b) is a codification of the inherent power of a court to dismiss a case for want of prosecution.’ In order to maintain control of its calendar, a court has the power to require the parties to proceed with diligence and to meet deadlines established by court rule or order.  If cases are completely inactive for prolonged periods, or perhaps simply too old to be kept on an active calendar, a court surely has power to enter an order of dismissal for want of prosecution even though neither litigant has been prejudiced by the delay. Moreover, the court may properly threaten to enter such an order as a means of requiring litigants to pursue their matters to an expeditious conclusion. But if no unusual circumstances are shown, past delay does not justify dismissal of a case which is in fact going forward with appropriate speed.”  United States v. Clay, 481 F.2d 133, 137-38 (7th Cir. 1973).

“These motions to dismiss by reason of the Government’s failure to prosecute its case are based upon a criminal defendant’s right to a speedy trial granted by the Sixth Amendment of the Constitution, and upon Rule 48(b) of the Rules of Criminal Procedure which gives the Court discretion to dismiss a case where there has been unnecessary delay or failure of prosecution.”  United States v. Patrisso, 21 F.R.D. 363, 365 (S.D.N.Y. 1958).

“The refusal of the United States to comply with these orders made it impossible to proceed with the trial. Essentially, then, the United States caused an ‘unnecessary delay’ in bringing appellees to trial. This is a ground of dismissal under Rule 48(b), Federal Rules of Criminal Procedure. The court accordingly may have regarded appellees’ motions to dismiss as in effect invoking the court’s power to dismiss under Rule 48(b). On the other hand, it may simply have purported to act in the exercise of its inherent power to do justice.”  United States v. Apex Distributing Co., 270 F.2d 747, 755-56 (9th Cir. 1959).

“While the underlying facts which may prompt a Judge of the District Court to dismiss for failure to prosecute may also constitute the basis for a speedy trial motion, the parameters are not co-extensive. A dismissal for failure to prosecute a criminal case has no statutory premise and is based upon the actual or implied abandonment of the proceedings by the District Attorney. A speedy trial motion alleges a violation of a defendant’s constitutional right to a speedy trial.” People v. Morgan, 395 N.Y.S. 2d 363 (1977).

Related entries