July 28, 1994
JOHN H. STUCKEY, APPELLANT
M. ABRAHAM AHMAD, ET AL, APPELLEES
Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Motions Judge)
Before Terry, Steadman, and Schwelb, Associate Judges.
The opinion of the court was delivered by: Steadman
STEADMAN, Associate Judge: This is an appeal from an order denying appellant's Super. Ct. Civ. R. 60(b) motion to vacate an order dismissing his case after neither he nor his counsel appeared at a scheduling conference. *fn1 The dismissal was predicated upon the fact that plaintiff, "having received notice of the hearing, failed to appear or to request a continuance." *fn2
It is undisputed on appeal, however, and we therefore assume as established, that the sole reason that appellant's counsel failed to appear was because no notice of the conference was ever sent to him, *fn3 that he was entitled to such notice, and that he promptly filed the Rule 60(b) motion upon learning of the dismissal. With respect to appellant himself, the notice sent to him specifically stated that "all counsel and unrepresented parties shall appear" before the trial court at the appointed time and day. (emphasis added). Appellant therefore could rightly assume that his presence was not required, and we think it asking too much of clients to compel them to inform their own counsel of every notice received during the litigation, at peril of dismissal of the case.
The trial court's order denying the Rule 60(b) motion does not address the failure of appellant's counsel to receive notice, as asserted in the motion and not disputed by appellees, but simply reiterates without elaboration that "notice of the conference was sent to all parties, including plaintiff," and that "plaintiff had notice of the hearing and once again failed to appear or to request a continuance." *fn4
Rather, the trial court appears to have declined to grant the motion principally because of "the inordinate length of time plaintiff has taken to prosecute the litigation" and "the obvious prejudice to the defendants caused by the fading of witnesses' memories over the nearly five years the litigation has been pending." However, these assertions had been the subject of a motion by appellees to dismiss which had been denied by the trial court about three months previously, just prior to setting the scheduling conference. The only thing that appears to have changed in the meantime was appellant's counsel's failure to appear at the scheduling conference. The trial court's grant of the renewed motion of dismissal at a hearing of which appellant's counsel received no notice cannot retain validity in the face of a well-founded Rule 60(b) motion. *fn5
We have several times in recent years vacated trial court dismissals for failure to attend a pretrial conference, noting that in such circumstances, the sanction of dismissal "should be imposed sparingly." Samm v. Grina, 542 A.2d 836, 836 (D.C. 1988) (per curiam) (internal quotations omitted); Durham v. District of Columbia, 494 A.2d 1346, 1350 (D.C. 1985). While indisputably counsel can be held to faithful compliance with scheduling orders, the failure to appear at a conference of which one has received no notice cannot support such a dismissal.
Recently, in Reid v. District of Columbia, 634 A.2d 423 (D.C. 1993), we had occasion to review a trial court's denial of a Rule 60(b) motion to reinstate a complaint, dismissed for plaintiffs' and their attorney's failure to appear at a scheduling conference. We noted there the long-standing emphasis of this court that "'the trial court has a responsibility to inquire where matters are raised which might entitle the movant to relief under Rule 60(b).'" Id. at 425 (quoting Starling v. Jephunneh Lawrence & Assoc., 495 A.2d 1157, 1162 (D.C. 1985)). *fn6 In setting aside the denial of the Rule 60(b) motion, we also noted four particular circumstances which Starling required a trial court to consider, including "whether the movant (1) had actual notice of the proceedings." 495 A.2d at 1159. On the record before us, we likewise, as precedent dictates, must vacate the order denying the Rule 60(b) motion and remand the case for further proceedings consistent with this opinion.