Glorious v. Evans

QUINN, Associate Judge.

The question on this appeal is whether the trial court abused its discretion in dismissing a suit for failure to prosecute.

On July 11, 1962, appellant filed a complaint against appellees for the unpaid balance on a promissory note. After service of process, appellees filed a motion for a more definite statement of claim. This motion was calendared for August 22, 1962, but appellant’s counsel, without the consent of ap-pellees’ counsel, had the case removed from the motions calendar. Nevertheless, on August 22, appellees’ counsel appeared in court and requested a hearing. As a result thereof, the trial court granted the motion. Almost seven months later, on March 14, 1963, appellant filed the required statement. On May 21, 1963, appellees filed a motion to dismiss for failure to prosecute diligently. After a full hearing, this motion was granted pursuant to Rules 12(e), 41(b), and 41 (e) of the trial court.¹ Thereafter, appellant filed a motion for relief from the dismissal under Rule 60(b) (1), (3) and (6).² The motion was denied and the present appeal followed.

Rule 41(b) provides:

“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. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * * operates as an adjudication upon the merits.”

In determining what constitutes a failure to prosecute we have held:

“ * * * that the question of lack of diligence in prosecution is one of fact for the trial court, and that the grant or denial of a motion to dismiss on that ground rests in the sound discretion of the trial court. * * * We will invade this discretionary field of the trial court only in an extreme case * ³

After carefully reviewing the record, we can find no evidence showing that the trial court abused its discretion in granting the dismissal or in failing to grant the motion to vacate under Rule 60(b) (1), (3) and (6). The judgment must be and is

Affirmed.

1 . Rules 12(e) and 41(b) are similar to Fed.R.Civ.P. 12(e) and 41(b). Rule 41 (e) provides that if a dilatory party’s delinquency continues for six months, his claim “shall stand dismissed without prej-•udioe.” It further provides that such dismissal may be entered by the clerk or upon- appropriate motion by the court.

2 . Rule 60(b) is similar to Fed.R.Civ.P. 60(b).

3 . Beret to Use of Nationwide Mut. Ins. Co. v. Rosner, D.C.Mun.App., 136 A.2d 260, 261 (1957). Accord, Shakesnider v. Rosenfeld, D.C.Mun.App., 144 A.2d 106 (1958); Dickson v. Marshall, D.C.Mun.App., 111 A.2d 879 (1955).