Michael Joseph Molloy v. Mark Wilson

Michael Joseph Molloy appeals from the district court order denying his motion for post-judgment relief. This court has jurisdiction under 28 U.S.C. § 1291 . We vacate and remand.

I

BACKGROUND

On October 22, 1986, appellant filed an action for damages under 42 U.S.C. § 1983 , alleging various violations of his constitutional rights. Having obtained an extension of time in which to reply, the appellees filed an answer on January 22, 1987. The district court scheduled a mandatory status conference for April 6, 1987, at 10:00 a.m. Notice of the pending hearing was sent to respective counsel for the parties, appellant receiving his notice on March 2, 1987. Neither counsel appeared at the mandatory status conference, and the district court ordered the action dismissed “for lack of prosecution” pursuant to Local Rule 27.2. The docket and the minute order for April 6, 1987, reflect that notice of the dismissal order was mailed to both counsel; however, neither apparently received such notice.

Oblivious to the dismissal of the action, both parties proceeded with their respective discovery in anticipation of trial. Eventually, on April 28, 1988, counsel for appellees inspected the…