December 20, 2001
JOHN LAWS FOSTER, APPELLANT
FERGUSON EVANS, APPELLEE
On Appeal From the Superior Court of the District of Columbia Civil Division (CA-44122-00) (Hon. Susan R. Winfield, Trial Judge)
Before Farrell and Ruiz , Associate Judges, and Newman, Senior
The opinion of the court was delivered by: Per Curiam
Submitted September 20, 2001
Upon review of the briefs and the record in this appeal, the court remains uncertain as to the basis for the trial court's dismissal of the case, which operates as a final adjudication on the merits because the trial court did not specifically state that the dismissal was without prejudice. See Johnson v. Berry, 658 A.2d 1051, 1052 n.2 (D.C. 1995) (citing Super. Ct. Civ. R. 16-II and 41(b)).
Appellant argues that the court dismissed the case because of his failure to serve process on the defendant. See Order of the Superior Court of August 29, 2000; but see Herbin v. Hoeffel, 727 A.2d 883, 888 (D.C. 1999). On the other hand, a docket entry indicates that the court acted because of appellant's failure to appear at a pretrial conference. See Super. Ct. Civ. R. 16-II. In the latter event, it is important for this court's review to have the benefit of the trial court's reasoning in imposing the most severe sanction. See generally Durham v. District of Columbia, 494 A.2d 1346, 1351-52 (D.C. 1985).
Accordingly, we remand the record of the case for clarification by the trial court of the basis for the dismissal order.
Newman, J., concurring:
In considering Durham v. District of Columbia, id., the trial court should be mindful of whether any lesser sanction is available where the plaintiff is proceeding in forma pauperis.