Moore and Feinberg, Circuit Judges, and Bonsal,*fn* District Judge.
This action was brought by Richard Peterson for damages arising out of personal injuries he allegedly sustained from a collision involving a taxicab owned by Term Taxi, Inc., in which he was a passenger, and an automobile driven by the defendant Miriam Hayes. Defendant John Diaz was the operator of the taxi in which Peterson was riding. The collision occurred on January 12, 1965. Peterson commenced his action on October 19, 1965, and one year later it was placed on the trial calendar.
The case appeared on the Ready Calendar in late January, 1968, and was subsequently assigned to Judge MacMahon for trial along with 24 other cases on May 20, 1968. Commencing May 28, 1968, it appeared in the New York Law Journal as No. 15, accompanied by a notice that the cases would be tried, one to follow the other in the order listed.
On June 3, 1968, the deputy clerk of the district court telephoned counsel for all of the parties to this action and alerted them to be ready for trial at any time. Counsel appeared on June 6th to discuss a possible settlement, but the conference was to no avail. The deputy clerk thereafter telephoned counsel on June 11th, notifying them that the case would probably be reached for trial on June 12th or shortly thereafter. On the date of the settlement conference, plaintiff's counsel submitted to the court his trial memorandum and requests to charge.
The deputy clerk telephoned counsel for all parties on Friday, June 14th, to inform them that the case would definitely come on for trial at 10:00 a.m. on Monday morning, June 17th. By affidavit, plaintiff's attorney states that he received the clerk's call at approximately 2:15 or 2:30 p.m. on Friday. The significance of this timing will become evident shortly.
On Monday morning, as the deputy clerk had promised, the case was called at 10:00 a.m. Plaintiff was not in court, nor was his attorney. A call from the deputy clerk brought into court shortly thereafter attorney Seymour Berger, an associate of Fred Peters, Esq., whom plaintiff had previously designated as trial counsel. Mr. Berger represented to the court that the plaintiff could not be located, and he asked for an adjournment. Thereupon defendants moved for dismissal, the court declared plaintiff in default, and the same day a judgment of dismissal was entered, on the ground that the plaintiff had "stated that he was not ready to proceed to trial * * *." Plaintiff himself arrived in the empty courtroom less than an hour after he had been declared in default.
Following the entry of judgment, plaintiff filed a motion to set aside the default, vacate the judgment and restore the case to the trial calendar. In support of the motion, affidavits were filed by plaintiff, by his attorney of record David Ampel, and by Berger, the representative of trial counsel who had appeared in court on the morning of the 17th.
According to the affidavits, plaintiff had been ready and available to go to trial at all times from the date of the aborted settlement conference until midafternoon on Friday, June 14th. On that Friday morning plaintiff called his attorney of record, Ampel, to inquire about the progress of the case. He was informed that no word had come from the clerk's office setting a specific date or time for trial. Plaintiff received the same information when he called again at noon. He called Ampel's office once more at approximately 2:00 p.m. The attorney was at lunch, but the secretary reported to plaintiff that there was still no word from the clerk's office. Shortly thereafter, plaintiff boarded a plane for St. Louis, en route to what was described in his affidavit as an emergency business conference. At 2:15 p.m. Ampel was back in the office, and at that time received the call from the deputy clerk informing him that trial was set for 10:00 a.m. on Monday. Ampel immediately called plaintiff's New York office, where plaintiff had previously arranged to be contacted, to discover that plaintiff had just left for St. Louis. Over the weekend, Ampel made numerous attempts to reach plaintiff's home in Pennsylvania, hoping to find out where in St. Louis he could communicate with plaintiff. Plaintiff's family were out of town for the weekend, and no contact was made.
Having been unable to reach plaintiff by Sunday evening, Ampel called Berger to explain the situation. Arrangements were apparently made for Ampel to call Berger when he heard from plaintiff, and that Berger should hold himself available the following morning, awaiting the call from Ampel.
On Monday morning, the day set for trial, plaintiff caught an early morning plane from St. Louis which arrived at LaGuardia airport at 11:00 a.m. He immediately called Ampel's office, where he was informed that trial had been set for 10:00 that morning and instructed to go directly to court. Plaintiff arrived in the courtroom at noon, to find his case dismissed.
According to the affidavits, plaintiff attempted to telephone Ampel at his home on Sunday afternoon. Ampel was away from home most of that day, celebrating his 27th wedding anniversary with his wife and family. He in turn made several attempts to reach plaintiff at home, but to no avail.
When the case was called on Monday, and no one appeared for plaintiff, the deputy clerk called first Ampel's office and then the office of Fred Peters. There he contacted Berger, who appeared in court at 11:00 a.m. Some confusion obviously existed between plaintiff's attorneys, for although Ampel's office had been continuously in contact with plaintiff from June 6th until 2:00 p.m. Friday, June 14th, Berger represented to the court on Monday morning that "Mr. Ampel has been trying to contact the plaintiff from the time he left the conference room in this courthouse -- [June 6th] -- until as of last night when he called me at 7:30 at home." Upon that representation, Judge MacMahon ordered the entry of judgment by default. Plaintiff's subsequent motion to vacate the judgment and restore the action to the calendar was denied, the court stating that
"if counsel and litigants observe the rules and heed the directions of the court, perhaps we will make progress toward the ideal of current calendars. That goal will never be reached if we allow counsel and litigants to trifle with the rules and the court's directions, as was so plainly the case here."
It is well settled that an order of dismissal for failure to prosecute should not be reversed except for an abuse of discretion. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Schwarz v. United States, 384 F.2d 833 (2d Cir. 1967); West v. Gilbert, 361 F.2d 314 (2d Cir.) cert. denied, 385 U.S. 919, 87 S. Ct. 229, 17 L. Ed. 2d 143 (1966). A motion to vacate the judgment of dismissal pursuant to Rule 60(b), F.R.Civ.P., is also ...