Ace Novelty Co., Inc. v. Gooding Amusement Co., Inc.

Plaintiff Ace Novelty Co. filed an antitrust action in November, 1975 against the defendants, Gooding Amusement Co. and the American Freedom Train Foundation, in which it alleged that the defendants prevented it from selling patriotic souvenirs near the defendants’ “Freedom Train” during the train’s cross-country 1975-76 Bicentennial Tour. Instead, exclusive concessionaire’s rights were granted to codefendant Jerry L. Kaltenbach Enterprises.

Ace Novelty’s pretrial discovery consisted of one document request in April 1976 and two depositions, one in July 1976 and the other in May 1979. Thirteen months after Ace Novelty filed its last deposition, defendant Foundation moved to dismiss because of Ace Novelty’s failure to prosecute. The court dismissed the action, under Fed. R. Civ.P. 41(b) and W.D.Wash. CR 41(b), because the “cause has been pending in this court for more than one (1) year, without any proceeding of record having been taken.” Local civil rule 41(b) codifies the inherent power of a court to dismiss a case for a party’s failure to prosecute, see Link v. Wabash Railroad Co., 370 U.S. 626 , 82 S. Ct. 1386 , 8 L.Ed.2d 734 (1962), by providing that the court may, on its own…