Albert Nealey v. Transportacion Maritima Mexicana, S. A. And Maersk Lines

Longshoreman Albert Nealey appeals from a dismissal with prejudice of his complaint for damages against Transportación Marítima Mexicana, S. A. (Transportación) and Maersk Lines (Maersk). The district court, in a two-sentence order, granted ap-pellees’ motion to dismiss under Fed.R. Civ.P. 41(b) 1 “because of failure to prosecute because of an unreasonable delay in service of process.” We vacate the order and remand.

I.

Nealey’s complaint alleged that in the course of his employment as a longshoreman, he was injured while working aboard appellees’ vessel, the SS TOLUCA, on June 24, 1974. His complaint, seeking damages on the ground that his injuries were the proximate result of appellees’ negligence, was filed on May 29, 1975 in the Superior Court for the State of California in and for *1278 the City and County of San Francisco. This was some eleven months after the accident but within California’s one-year statute of limitations for actions to recover damages for personal injuries. 2 Appellees were not served with the complaint and summons until April 1977, nearly two years after commencement of the action and nearly three years after the cause of action arose.

Appellee…

(concurring in the result only):

I agree that the order of dismissal should be vacated and the case remanded because the district court’s order provides no reliable clue as to how it weighed the conflicting policies set forth in Citizens Utilities Co. v. AT&T, 595 F.2d 1171, 1174 (9th Cir.), cert. denied, 444 U.S. 931 , 100 S.Ct. 273 , 62 L.Ed.2d 188 (1979). The majority opinion may be read as permitting a dismissal for failure to prosecute under Rule 41(b), F.R. Civ.P., only when the delay was unreasonable and the plaintiff has failed to rebut the defendant’s evidence of prejudice consisting either of a loss of evidence or a loss of memory by a witness. Even if other forms of prejudice will suffice, a matter left in some doubt by the majority, such an interpretation of Rule 41(b) would ignore the policies of promoting sound docket management and the public’s interest in expeditious resolution of litigation.

The majority justify disregarding these policies on the ground that upon removal to *1285 federal court diligent prosecution commenced. In their view no “federal housekeeping interest” is involved under these circumstances. I am not prepared summarily to banish these…

662 F.2d 1275 Albert NEALEY, Plaintiff-Appellant, v. TRANSPORTACION MARITIMA MEXICANA, S. A. and Maersk Lines, Defendants-Appellees. No. 78-1009. United States Court of Appeals, Ninth Circuit. Oct. 21, 1980. Eric L. Henrikson, Oakland, Cal., argued, for plaintiff-appellant; Thomas J. Boyle, San Francisco, Cal., on brief. Francis L. Tetreault, Graham & James, San Francisco, Cal., argued for defendants-appellees; A. M. Young, Graham & James, San Francisco, Cal., on brief. Appeal from the United States District Court for the Northern District of California. Before SNEED and SCHROEDER, Circuit Judges, and BLUMENFELD, * District Judge. BLUMENFELD, District Judge: Longshoreman Albert Nealey appeals from a dismissal with prejudice of his complaint for damages against Transportacion Maritima Mexicana, S. A. (Transportacion) and Maersk Lines (Maersk). The district court, in a two-sentence order, granted appellees' motion to dismiss under Fed.R.Civ.P. 41(b) 1 "because of failure to prosecute because of an unreasonable delay in service of process." We vacate the order and remand. I. Nealey's complaint alleged that in the course of his employment as a longshoreman, he was injured…