Appeal from the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, dismissing the complaint in this action for malicious prosecution. Held, that the trial court had abused its discretion in requiring the plaintiff to rest when he requested a continuance and in dismissing the complaint. Reversed and remanded for retrial.
Before Lumbard, Feinberg and Oakes, Circuit Judges.
This appeal is an example of a trial court's permitting its zeal for clearing its calendar to overcome the right of a party to a full and fair trial on the merits. Because we believe that the United States District Court for the Southern District of New York, Lloyd F. MacMahon, Judge, erroneously required the appellant, who was the plaintiff below, to rest at the conclusion of the testimony of three witnesses on the first day of trial, we reverse the judgment granting dismissal of the complaint made orally by the court immediately after it declared the plaintiff at rest and in writing subsequently thereto.*fn1
In striking the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard, we have repeatedly given a great deal of latitude to the individual district judges laboring conscientiously in a day of ever-rising filings closely to control their dockets. Lamb v. Globe Seaways, Inc., 516 F.2d 1352, 1356 (2d Cir. 1975); Michelsen v. Moore-McCormack Lines, Inc., 429 F.2d 394 (2d Cir. 1970); Winston v. Prudential Lines, Inc., 415 F.2d 619 (2d Cir. 1969), Cert. denied, 397 U.S. 918, 90 S. Ct. 926, 25 L. Ed. 2d 99 (1970); Davis v. United Fruit Co., 402 F.2d 328 (2d Cir. 1968), Cert. denied, 393 U.S. 1085, 89 S. Ct. 869, 21 L. Ed. 2d 777 (1969). See also Ali v. A & G Co., 542 F.2d 595 (2d Cir. 1976). At the same time this court has always recognized that "a court must not let its zeal for a tidy calendar overcome its duty to do justice." Peterson v. Term Taxi, Inc., 429 F.2d 888, 891 (2d Cir. 1970). Cf. United States v. Cacciatore, 487 F.2d 240 (2d Cir. 1973) (reversing dismissal of indictment). To understand the balance applicable here it is necessary briefly to recount the facts.
The case dismissed was a diversity action by appellant, John Beary, for malicious prosecution because of the allegedly malicious instigation and continuation of a criminal prosecution of him for sexual abuse in the first degree and sodomy in the first degree. The prosecution was begun by grand jury indictment on May 29, 1975, although the district attorney did not conduct any preliminary hearing*fn2 pertaining to a sexual assault which took place on June 7, 1974. According to the description that the victim of the crime first furnished, the assailant was about 5 feet 5 inches tall and about thirty years old. Appellant, who was twenty-one years old and 6 feet 1 inch tall, furnished through counsel affidavits of nine witnesses who placed him at a hunting lodge in upstate New York 150 miles away from the scene of the crime at the time of the assault; and a pretrial order in the instant case recited as a fact that on January 14, 1976, the criminal case was resubmitted to the Westchester County grand jury which dismissed the indictment.
Appellant brought the instant suit in federal court*fn3 on January 26, 1977. A pretrial order provided that
(t)he parties shall, in order to prevent delay or interruption of the trial, have sufficient witnesses present at all times during the trial and shall perpetuate before trial the testimony of any essential witnesses, on direct and cross examination, . . . likely to be unavailable when required upon the trial.
The pretrial order also provided that failure to comply with any of its provisions "may result in this court's imposing appropriate sanctions, including termination of the action."
Trial of the federal action commenced on Monday, November 27, 1978. Appellant's counsel had, on November 24, subpoenaed six witnesses to appear on Wednesday, November 29, one at 9:00 a. m. and five at 9:30 a. m. At the luncheon recess on the first day of the trial appellant's first witness, appellant himself, was still testifying; opposing counsel subjected him to a vigorous cross-examination which continued after the luncheon recess. After redirect examination of appellant, appellant then called two other witnesses, one a resident of the upstate locale of the hunting lodge who had seen appellant there on the Saturday and Sunday after the alleged crime; the other appellant's father, who testified that he had driven with appellant to the hunting lodge on Friday evening at a time prior to the occurrence of the sex crime. At this point in the trial, which was 3:30 p. m., the following occurred:
Mr. Greenspan (counsel for plaintiff): I have no further questions.
Mr. Zawacki (counsel for defendant): I have no questions.
The Court: You are excused.