May 06, 1999
PETER JAMES ATHERTON, APPELLANT,
ALBERT BROOKS, JR., ET AL., APPELLEES.
Before Steadman and Ruiz, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Ruiz, Associate Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (Hon. Noel A. Kramer, Motions Judge) (Hon. Zinora Mitchell-Rankin, Trial Judge)
Argued April 24, 1999
The underlying case arose from a collision that occurred on an icy road in 1984 between a 1973 Lincoln Continental driven by Albert Brooks, Jr., one of the appellees, and the parked 1968 Ford Mustang of appellant, Peter J. Atherton. Atherton sued the Great American Insurance Company ("Great American"), the issuer of his automobile insurance policy, and Haycraft Insurance Agency, Inc. ("Haycraft"), from whom he obtained the Great American insurance policy, alleging that they breached the uninsured motorist provisions of the policy by not adequately compensating him for the damage to his vehicle, and for tortious breach of contract. *fn2 Atherton sued Brooks for negligence in hitting Atherton's parked car.
Atherton, who appeared pro se, requested and was allowed to proceed in forma pauperis. Atherton claims that the trial court's denial of his request for a continuance to enable him to serve his witnesses and consequent dismissal of his action for lack of prosecution were an abuse of discretion by the trial court because the matter that impeded the trial, the unavailability of a witness Atherton considered important to his case, was due at least in part to the court's failure to serve subpoenas on Atherton's witnesses which he claims is required by Super. Ct. Civ. R. 54-II. In addition, Atherton contends that the trial court should have reconsidered dismissal once he indicated that he was willing to proceed to trial. We agree that dismissal of Atherton's action under the circumstances was an abuse of discretion. Although we consider that Atherton raises a serious issue concerning the scope of Rule 54-II, we do not decide whether Atherton's status as an in forma pauperis litigant entitled him to court assistance in serving witness subpoenas. We reverse the trial court's denial of reconsideration of the order of dismissal and remand, upon which the trial court should reconsider, if necessary, whether it has an obligation under Rule 54-11 to effect service of the subpoenas on Atherton's witnesses. *fn3
The procedural posture of this case is rather involved and the matter has been before the courts for a long time. Atherton filed his complaint in January 1987; he has had two trials prior to the proceeding that led to this appeal. *fn4
The third trial, from which this appeal was taken, was set to begin on March 21, 1994, before Judge Zinora Mitchell-Rankin. On that date, with the parties present to proceed, Atherton requested a continuance because he had been unable to pay his expert witness fees, which had been set as a condition to proceed with the case. Atherton's requested continuance was denied; the case was, nevertheless, continued because there was no Judge available to hear the case on that day. Atherton was admonished by Judge Mitchell-Rankin that expert witness fees were his responsibility and that he had to be prepared for trial on June 20, 1994, with all his witnesses available.
Prior to the rescheduled trial date, Atherton filed a motion to compel the clerk's office to issue subpoenas and to serve them on all his proposed witnesses. The motion was denied on June 9, 1994. A week before the rescheduled trial date, on June 13, 1994, Atherton filed a motion to continue the case because there was insufficient time to serve his witnesses. On June 20, 1994, all parties appeared for trial. The trial court, Judge Mitchell-Rankin, again denied Atherton's request regarding the issuance and service of subpoenas by the clerk's office, explaining that the clerk's office will issue subpoenas, but that serving the subpoenas was Atherton's responsibility. *fn5
Atherton's motion for a continuance also was denied. In his motion Atherton explained that his files had been "ransacked" and thus he needed more time to get copies of relevant parts of the transcripts from the first two trials because some of the witnesses who were available for those trials were no longer available to testify. As his motion to compel the clerk to serve his subpoenas had been denied on June 9, 1994, eleven days earlier, he further argued to the court that there had not been sufficient time from the denial of his motion to the trial date for him to properly serve all of his witnesses. Specifically, Atherton mentioned that there were two officers who had observed the scene shortly after the collision. Atherton explained that be had been unable to serve one of the police officers who had been sick but was expected to return to duty that night. The other police officer who had observed the scene, Atherton explained, was out of the country; Atherton proffered an affidavit from the State Department to that effect. *fn6
After denying Atherton's motions, the trial court asked Atherton if he was ready to proceed to trial. Atherton did not respond directly to the court's question, but reiterated his concern with going forward without either the witnesses or the transcripts. The court asked Atherton once again if he was ready, and Atherton, again, requested a continuance. The trial court then sua sponte invited a motion to dismiss, which was made instantly by opposing counsel, and granted without further Discussion. Atherton immediately requested reconsideration of the dismissal, stating that he was willing to proceed with the trial even without the transcripts and his witnesses if it meant that the case would otherwise be dismissed. The trial court, stating that it had given Atherton many opportunities and he had not been ready, denied his request. *fn7 In a written order denying Atherton's motion to reconsider the dismissal, the trial court stated:
"Plaintiff's Motion to Reconsider Dismissal is denied, the [plaintiff] having failed to provide the court with sufficient reasons to warrant the relief requested. This court has given Mr. Atherton ample opportunity to get himself ready for trial. This court is neither required by Rule or Law to do more than to provide subpoenas to [plaintiff]. The court is not required to serve the subpoenas. Nor is this court required to pay for expert witnesses, which in any event the utility and materiality of the same are questionable as [plaintiff] was advised during the pretrial. At some point there must be an end to the process."
Atherton appeals from both the dismissal and the denial of his request to set it aside.
On appeal, Atherton cites two grounds for reversing the trial court's dismissal for lack of prosecution. First, Atherton contends that the reason he was reluctant to proceed to trial, the absence of his witnesses, was caused by the trial court's failure to perform its duty to serve witness subpoenas under Superior Court Civil Rule 54-II. Second, Atherton claims that the trial court's dismissal of his complaint because he was not ready to proceed was an abuse of discretion as he ultimately expressed his willingness to proceed to trial even without his witnesses. We reverse on this second ground and remand the case to the trial court. We leave it to the trial court, should it become necessary on remand, to address in the first instance the scope of Rule 54-II with respect to service of witness subpoenas.
We reverse as an abuse of discretion the trial court's denial of Atherton's motion to reconsider dismissal, coupled with his stated intent to proceed with trial forthwith. Although we understand the trial court's wish to avoid trial delay, Atherton's reluctance to proceed also was understandable. He had pointed out to the court the importance of an absent witness, a police officer who had observed the scene immediately after the collision. Atherton also mentioned to the court that in view of the documented unavailability of another police officer witness, *fn8 he was particularly prejudiced by the loss of his file in the case, which included the transcripts from the two earlier trials during which the police officers had testified. Notwithstanding these obstacles, Atherton unequivocally asserted, in response to the dismissal order, *fn9 that he would proceed if the only alternative was dismissal. He immediately "respectfully request[ed] that [the trial court] reconsider" the dismissal order. The trial court denied his motion, stating that it had "already acted" and would not give him yet another opportunity to say he was ready to proceed.
The decision to dismiss for failure to prosecute is a discretionary call based on a factual question of the litigant's diligence. See Akinyode v. Hawkins, 292 A.2d 795, 796 (D.C. 1972). When there is no factual issue, "the question [of diligence] becomes one of law." Id. As with default judgments, which also result in adjudications not on the merits, we review the decision not to set aside a dismissal for lack of prosecution "carefully, even critically" because of the "desirability of assuring the right to be heard on the merits." Watkins v. Carty's Automotive Elec. Ctr., Inc., 632 A.2d 109, 110 (D.C. 1993). In the circumstances of this case, the court's refusal to allow Atherton to proceed after he expressed his willingness to do so even without his witnesses was an abuse of discretion. See id. (dismissal with prejudice under Rule 41 (b) is a drastic measure and should be sparingly exercised); La Prade v. Lehman, 490 A.2d 1151, 1155 (D.C. 1985) (dismissal with prejudice appropriate only upon "clear evidence of deliberate delay" or "contumacious conduct" and after consideration of wide range of lesser sanctions). *fn10
Although we do not decide the issue, we consider that Atherton raises a serious issue of first impression about the scope of Rule 54-II. The trial court expressed the view, apparently relying on the practice in Superior Court, that the court has no obligation to serve witness subpoenas for indigent litigants. We believe the matter is not so straightforward. We have recently held in Herbin v. Hoeffel, No. 97-CV-1655 (April 8, 1999), that Rule 54-II *fn11 requires the trial court to issue and serve a complaint on behalf of litigants proceeding in forma pauperis. See id. slip op. at 8. Failure to do so, followed by dismissal of the complaint for lack for prosecution, is an abuse of discretion where the plaintiff has otherwise been unable to serve the complaint. See id. slip op. at 10. This appeal raises a different question, concerning the trial court's responsibility under Super. Ct. Civ. R. 54-II to assist litigants in ensuring attendance of witnesses at trial.
The language of Rule 54-II with respect to witnesses clearly exempts in forma pauperis litigants from the usual requirement found in Super. Ct. Civ. R. 45 (b)(1), that service of a subpoena must be accompanied, "if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law." Thus, Atherton was entitled to serve subpoenas on his witnesses without prepayment of such fee.
Atherton contends that Rule 54-II also requires the court to serve witness subpoenas. As we noted in Herbin, the rule unequivocally provides that the court "shall issue and serve all process." See Black's Law Dictionary 1205 (6th ed. 1990) ("Process is defined as any means used by the court to acquire or exercise its jurisdiction over a person or over specific property. . . . The word 'process,' however, as now commonly understood, refers to a summons, or, summons and complaint, and, less commonly, to a writ."). Rule 54-II does not expressly refer to service of subpoenas. It is arguable, however, that as used in Rule 54-II, "process" also includes a subpoena, which is "a command to appear at a certain time and place to give testimony upon a certain matter." Id. at 1426. See Jackson v. Brinker, No. IP-91-471-C, 1992 U.S. Dist. Lexis 19619, at * 4 (S.D. Ind. Dec. 21, 1992) ("Subpoena constitute 'process' for the purpose of 28 U.S.C. § 1915(c)"); DuPont v. Bronston, 362 N.Y.S.2d 471, 473 (N.Y. App. Div. 1974) ("A subpoena ad testificandum is process."), overruled in part by AABCO Sheet Metal Co. v. Lincoln Ctr. for the Performing Arts, 670 N.Y.S.2d 494 (1998); 81 Am. Jur. 2d Witnesses § 7 (1992) ("[A] subpoena is the medium for compelling the attendance of a witness, and it is a process in the name of the court or Judge, carrying with it a command dignified by the sanction of the law.") (emphasis added)).
The Supreme Court has stated, with respect to the federal statute authorizing in forma pauperis litigation, 28 U.S.C. § 1915, *fn12 that
"In enacting the federal in forma pauperis statute, Congress "intended to guarantee that no citizen shall be denied an opportunity to commence, prosecute, or defend an action, civil or criminal, in any court of the United States, solely because . . . poverty makes it impossible . . . to pay or secure the costs" of litigation." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342 (1948)).
The District of Columbia counterpart, D.C. Code § 15-712 (a) (1995), *fn13 as implemented by Rule 54-II, has a similar remedial purpose. We also note that Rule 54-II, unlike 28 U.S.C. § 1915 (d), exempts indigent litigants from prepayment of witness fees. It could be argued that, as indigent litigants are not required to prepay witness fees under Rule 54-II, the trial court is required to serve witness subpoenas. *fn14 We are cognizant, however, that such an obligation might impose on the trial court an administrative burden not contemplated when Rule 54-II was adopted. Further, even if Rule 54-II were to cover witness subpoenas, there is an issue whether the trial court has discretion to limit the subpoenas that an in forma pauperis litigant seeks to have issued and served by the court under Rule 54-II. See Johnson, supra note 14, 698 F.2d at 294 (Swygert, J., Dissenting); Williams, supra note 14, 10 F.3d at 566-67; Coleman v. St. Vincent de Paul Soc., 144 F.R.D. 92, 96 (E.D. Wis. 1992). In sum, the question bears careful consideration; we prefer to have the trial court's informed view before deciding on the subject.
We reverse the trial court's dismissal of Atherton's case for lack of prosecution and remand the case for proceedings consistent with this opinion.
Reversed and remanded.