A. M. Pearson v. Denny Dennison

This appeal is from a dismissal of the action under Rule 41(b) F.R.Civ.P. The action, in which seven individuals and three corporations are named as defendants, was filed on January 18, 1962. It was dismissed on May 21, 1964. The ground for dismissal was “failure to prosecute.”

When the complaint was filed, summons was issued, but the Marshal re ceived no instructions as to service and returned it unserved on July 12, 1962. Nothing happened until February 20, 1963. On that day the clerk, acting under local rule 10(d), put the matter on its calendar for dismissal on the court’s own motion. On March 11, 1963 counsel for plaintiffs advised the court “that the defendants have been evading service” and asked more time in which to serve. The court allowed 60 days.

Defendant Jack P. Marsh was served on May 3, 1963. There are detailed and undenied affidavits on file showing that he never evaded service but was always available, and that the plaintiffs’ counsel admitted to Marsh’s counsel that this was so. Marsh, on June 25, 1963, moved to dismiss for failure to prosecute and for failure to state a claim. On September 13, he added additional grounds: lack of jurisdiction and that the…