632 A.2d 109

Willie WATKINS, Appellant, v. CARTY’S AUTOMOTIVE ELECTRICAL CENTER, INC., et al., Appellees.

No. 92-CV-784.

District of Columbia Court of Appeals.

Submitted Sept. 30, 1993.

Decided Oct. 21, 1993.

Daniel J. Slattery, Jr., Washington, DC, was on the brief for appellant.

No brief was filed for appellees.

Before SCHWELB, FARRELL, and KING, Associate Judges.

FARRELL, Associate Judge:

We here vacate a dismissal entered pursuant to Super.Ct.Civ.R. 41(b).

Plaintiff (appellant here) filed the instant complaint on October 26, 1991. Defendant (appellee) answered on January 9, 1992. On February 7, 1992, the trial judge dismissed the case for want of prosecution because plaintiff did not appear for the initial hearing in the ease scheduled for that day. As the trial judge did not indicate to the contrary, the dismissal amounted to a judgment on the merits. Rule 41(b).

On June 9, 1992, plaintiff, by counsel, filed a “Consent Motion to Reinstate Case” under Super.Ct.Civ.R. 60(b), asserting (via counsel’s supporting affidavit) that plaintiff had never received notice of the February 7 hearing and, indeed, had not received notice of the dismissal and only learned of it after reviewing the case file on June 4, 1992. Counsel stated that “[defendant does not oppose this motion.” In keeping with that representation, defendant filed no opposition to the motion to reinstate the suit. The trial judge nonetheless denied the motion with the handwritten notation that “[t]he Court records show that plaintiff’s counsel, as in all other eases, was given a notice of the initial hearing date when he filed the complaint.”

“We have consistently stated that dismissal with prejudice pursuant to Super.Ct.Civ.R. 41(b) should be sparingly exercised.” Wilds v. Graham, 560 A.2d 546, 547 (D.C.1989).1 The reason it is “a drastic rem*110edy” is that it “is contrary to the emphasis placed by the court on the desirability of assuring the right to be heard on the merits.” Hackney v. Sheeskin, 503 A.2d 1249, 1253 (D.C.1986). Thus, although the decision on a motion to set aside a default judgment under Rule 60(b) lies within the broad discretion of the trial judge, e.g., State Farm Mut. Auto. Ins. Co. v. Brown, 593 A.2d 184, 185 (D.C.1991), we review the exercise of that discretion carefully, even critically — a point capsu-lated by our (somewhat elusive) formulation that “even a slight abuse of discretion in refusing to set aside a [default] judgment may justify reversal.” Starling v. Jephunneh Lawrence & Assocs., 495 A.2d 1157, 1159 (D.C.1985). See also Joyce v. Walker, 593 A.2d 199, 200 (D.C.1991); id. at 205 (Belson, J., dissenting).

In this case, as pointed out, defendant filed no opposition to the motion to reinstáte the ease and did not dispute plaintiffs representation that it agreed to reinstatement. These facts are not decisive, of course; the finality considerations that underlie Rule 60(b), see Clement v. District of Columbia Dep’t of Human Servs., 629 A.2d 1215, 1219 (D.C.1993), serve interests beyond the possible prejudice to the party opposing the grant of a Rule 60(b) motion. See Perry v. Sera, 623 A.2d 1210, 1219 (D.C.1993). Nevertheless, we have stated repeatedly that before dismissal is warranted, the trial judge “must ... consider whether prejudice to the non-moving party would result.” Jones v. Health Resources Corp. of Am., 509 A.2d 1140, 1145 (D.C.1986). See also Iannucci v. Pearlstein, 629 A.2d 555, 559-60 (D.C.1993); Braxton v. Howard Univ., 472 A.2d 1363, 1365 (D.C.1984). Indeed, the absence of any showing of prejudice by the nonmoving party has “figured prominently” in our decisions reviewing the propriety of a dismissal. Hinkle v. Sam Blanken & Co., Inc., 507 A.2d 1046, 1049 (D.C.1986). All the more so is it pertinent in a ease where the parties have jointly consented to reinstatement. Cf. Maldonado v. Maldonado, 631 A.2d 40, 44 (D.C.1993).

In this case, the trial judge rested his denial of plaintiffs motion solely upon the fact that, according to court records, plaintiff had received the notice of the initial hearing date issued to counsel “in all cases” when the complaint is filed. There is no indication that the judge considered other factors— including the presence or absence of prejudice to defendant — in considering whether the severe sanction of dismissal of the suit with prejudice was necessary. See Durham, 494 A.2d at 1351 (noting conclusion of many federal courts addressing the issue “that a singular absence from a pretrial conference with no other evidence of dilatoriness on the part of the plaintiff is an insufficient basis for the sanction of dismissal”).2 We conclude, therefore, that the trial judge should be required to consider further the necessity of dismissal in light of possible other sanctions (including attorney’s fees) available for plaintiffs failure to appear at the initial hearing.

Judgment vacated.

Watkins v. Carty’s Automotive Electrical Center, Inc.
632 A.2d 109

Case Details

Name
Watkins v. Carty’s Automotive Electrical Center, Inc.
Decision Date
Oct 21, 1993
Citations

632 A.2d 109

Jurisdiction
District of Columbia

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