Citizens Utilities Company v. The American Telephone and Telegraph Company

Senior Circuit Judge, dissenting:

I respectfully dissent. I think the majority is wrong in affirming the trial court’s *1175 dismissal of this action for failure to prosecute.

The majority adequately discusses the early years of the case. The defendants, like all defendants in antitrust cases, were not anxious to go to trial.

We pass up those early years when both sides were probably equally at fault as to delay, and come to the period beginning in 1971. There is no dispute that defendants deliberately delayed the action at various times. Defendants brought various motions for summary judgments, two during the 1971 — 73 period. Defendants then sought the remedy of an extraordinary writ to this circuit to review the trial court’s denial of the motion for summary judgment. The request for the writ was denied and defendants sought certiorari. It was denied in December of 1973, nine months before the trial was to begin on March 18, 1974.

Previously, the plaintiffs had filed five motions for a pretrial conference. Defendants resisted efforts to put the case on a schedule. Plaintiffs’ fifth motion for a pretrial conference was made in 1971. Plaintiffs sought (1) a cutoff date for…

Appellants, Citizens Utilities Company and its California subsidiary (collectively, Citizens), filed this antitrust action against the appellees, American Telephone & Telegraph Company (AT&T), the Pacific Telephone & Telegraph Company (Pacific) and Bell Telephone Company of Nevada (collectively, Bell), in October 1960. Sixteen years later, this lawsuit had not yet been tried. On January 3, 1977, the district court 1 dismissed Citizens’ action on two alternative grounds: (1) want of prosecution by Citizens, under Fed.R.Civ.P. 41(b); and (2) lack of jurisdiction, because the Federal Communications Commission (FCC) possesses either primary or exclusive jurisdiction over the subject matter of the action. Citizens appeals. We affirm the judgment of dismissal.

I. Factual Background.

This action has its genesis in the period 1950-1957, when several disputes arose between Citizens and Bell concerning the division of revenues from “interchanged calls” between their systems, that is, telephone calls passing over interconnecting lines of Citizens and one of the Bell companies. 2 Citizens, contending that its return on the use of its facilities for interchanged calls was unreasonably low,…

595 F.2d 1171 1979-1 Trade Cases 62,650 CITIZENS UTILITIES COMPANY et al., Plaintiffs-Appellants, v. The AMERICAN TELEPHONE AND TELEGRAPH COMPANY et al., Defendants-Appellees. No. 77-1941. United States Court of Appeals, Ninth Circuit. April 30, 1979. Weyman I. Lundquist, Esq., San Francisco, Cal., for plaintiffs-appellants. Robert M. Westberg, San Francisco, Cal., for defendants-appellees. Appeal from the United States District Court for the Northern District of California. Before CARTER, Senior Circuit Judge, BRIGHT * and CHOY, Circuit judges. BRIGHT, Circuit Judge. 1 Appellants, Citizens Utilities Company and its California subsidiary (collectively, Citizens), filed this antitrust action against the appellees, American Telephone & Telegraph Company (AT&T), the Pacific Telephone & Telegraph Company (Pacific) and Bell Telephone Company of Nevada (collectively, Bell), in October 1960. Sixteen years later, this lawsuit had not yet been tried. On January 3, 1977, the district court 1 dismissed Citizens' action on two alternative grounds: (1) want of prosecution by Citizens, under Fed.R.Civ.P. 41(b); and (2) lack of jurisdiction, because the Federal Communications…