Citizens Utilities Company v. The American Telephone and Telegraph Company , 595 F.2d 1171 ( 1979 )

JAMES M. CARTER,

Senior Circuit Judge, dissenting:

I respectfully dissent. I think the majority is wrong in affirming the trial court’s dismissal of this action for failure to prosecute.

The majority adequately discusses the early years of the case. The defendants, like all defendants in antitrust cases, were not anxious to go to trial.

We pass up those early years when both sides were probably equally at fault as to delay, and come to the period beginning in 1971. There is no dispute that defendants deliberately delayed the action at various times. Defendants brought various motions for summary judgments, two during the 1971 — 73 period. Defendants then sought the remedy of an extraordinary writ to this circuit to review the trial court’s denial of the motion for summary judgment. The request for the writ was denied and defendants sought certiorari. It was denied in December of 1973, nine months before the trial was to begin on March 18, 1974.

Previously, the plaintiffs had filed five motions for a pretrial conference. Defendants resisted efforts to put the case on a schedule. Plaintiffs’ fifth motion for a pretrial conference was made in 1971. Plaintiffs sought (1) a cutoff date for discovery; (2) a date for a final pretrial conference, and (3) a date for trial. Defendants requested instead an establishment of a filing and briefing schedule and a date for their proposed motion for summary judgment.

In argument before us on the appeal, it developed that plaintiffs had moved for the designation of a single judge to handle all further proceedings and the trial of the case. The defendants admitted that they had opposed the motion.

This action by the defendants is singularly demonstrative of their purpose to delay. For years the United States District Court at San Francisco had used the master calendar system and had refused to assign eases to a single judge for all purposes, including trial. It resulted in causing several judges, seriatim, to look into a particular case and make a decision. This resulted in a great loss of time. The writer, sitting pro tern, on the circuit in 1956, wrote Yanish v. Barber, 232 F.2d 939, showing that four different district judges had worked on the case and made decisions and orders. See pp. 942-943, listing Judges Lemon, Murphy, Harris, and Hamlin.¹

We come now to the proceedings in the present case in the years 1974 to 1976. In late February or early March of 1974 the case was ready for trial. Judge Harris advised the parties he would not try the case, then set for March 1974. He presented two alternatives: (1) assign the case to a magistrate for trial (which would have required the consent of both parties), or (2) assign the case to another judge. The trial date was vacated by Judge Harris.

After the vacation of the trial date difficulties intensified between plaintiffs and their counsel, Joseph Alioto.² He filed a motion to withdraw as attorney, meanwhile claiming a lien for attorney’s fee on plaintiffs’ records.

In response to these developments, Judge Harris wrote to Chief Judge Chambers asking to be relieved and that another judge be designated. Judge Chambers suggested the fee dispute be severed and designated Judge Battin to handle it. He stated “it would take a little longer to find a trial judge.” Judge Battin’s designation expired July 31, 1974, and no judge was assigned to the trial of the case.

The case was thus in limbo. It was not on any judge’s pretrial or trial or dismissal list.

Meanwhile, plaintiffs were diligently seeking a replacement for Alioto. In January 1976, present counsel was obtained. In June, Judge Harris again wrote Judge Chambers requesting the assignment of another judge to try the case. On June 29, 1976, Judge Chambers assigned Judge Ferguson to the case.

The defendants’ response was to file the motion to dismiss for lack of prosecution. While the motion was pending both sides filed trial briefs of law and fact, looking in part toward the trial of the case. But in their brief, defendants, for the third time, resurrected their claim (twice previously rejected) that the Federal Communications Commission or the California Public Utilities Commission had jurisdiction.

The majority calls the decision on failure to prosecute “a close one.” I agree. On the record, major contributions were made by defendants to the delay. The parties were ready for trial in 1974. Judge Harris refused to try the case, and there was a gap of two years while the case was not assigned to any judge.

On this record I think it a miscarriage of justice to dismiss the action. In the early years both parties were responsible for delays. But it was a big case and such cases move slowly. Defendants had never claimed delay by plaintiffs. No motion to dismiss was made on such ground.

But in the period after 1971 defendants were clearly guilty of delaying tactics, as shown above. Still, no motion to dismiss was made until a new judge was assigned. As plaintiffs have argued, the defendants had run out their maneuvers of motions for summary judgment and for lack of jurisdiction, and now it was either trial or a motion to dismiss for delay. To reward defendants for their delaying conduct seems to me unthinkable. It was a breach of discretion to dismiss.²

I would reverse and let the case be tried.

1 . The writer, as a member of the Pretrial Committee of the Judicial Conference of the United States, had participated in efforts to get the Northern District of California to adopt a “single judge” rule. The Yanish case was an opportunity to demonstrate the problem. The Northern District of California presently, and for some time, has assigned major cases to a single judge for all proceedings.

2 . The district court found prejudice to the defendants. The majority fairly presents both sides of the issue in the last two paragraphs and note # 7 of the opinion. But because of the defendants’ delaying tactics, I think the finding is wrong.