Otis C. Tolbert v. Elliott Leighton

The district court, finding that Tolbert had failed to prosecute his legal malpractice suit, dismissed the action with prejudice. See Fed.R.Civ.P. 41(b). We reverse.

Tolbert’s only offense was failing to appear at a status conference set for a date less than seven months after the complaint was filed. The record indicates that Leigh-ton and his attorney did not appear at the conference either. (Indeed, they apparently have not participated in the case in any way either in the district court or here.)

Sua sponte dismissals for failure to prosecute will be affirmed unless the district court abused its discretion. Link v. Wabash R.R., 370 U.S. 626, 633 , 82 S.Ct. 1386, 1390 , 8 L.Ed.2d 734 (1962). In Link , the Supreme Court upheld such a dismissal for failure to attend a pretrial conference in a case already six years old, where there was evidence that the plaintiff “had been deliberately proceeding in dilatory fashion.” Id. But the Court made clear that it was not deciding “whether unexplained absence from a pretrial conference would alone justify a dismissal with prejudice if the record showed no other evidence of dilatoriness on the part of the plaintiff.” Id. at 634 , 82 S.Ct.…