Franklin W. Durgin, Catherine Durgin, & Orpha Durgin v. John T. Graham, M. Smith Burns, B. Clarke Nichols, & Lindsay Newspapers,inc., 372 F.2d 130 (5th Cir. 1967). · Go Syfert
Search
Franklin W. Durgin, Catherine Durgin, & Orpha Durgin v. John T. Graham, M. Smith Burns, B. Clarke Nichols, & Lindsay Newspapers,inc., 372 F.2d 130 (5th Cir. 1967). Cases Citing This Book View Copy Cite
57 citation events (18 in the last 25 years) across 20 distinct courts.
Strongest positive: Charles v. Nabors Drilling USA LP, No. 2:12-cv-02516 (E.D. La. Dec. 9, 2022)
Treatment trajectory · 1967 → 2026 · click a year to view as-of
1967 1996 2026
How cited ↗
Cited for
At page 131 Tempering dismissal sanction with judicial discretion28 citing cases“must be tempered by a careful exercise of judicial discretion.”9 citing courts quote it · 27 listed here
  • Charles v. Nabors Drilling USA LP, No. 2:12-cv-02516 (E.D. La. Dec. 9, 2022).
    Co., 385 F.2d 366, 368 (5th Cir.1967) (quoting Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967)). 29 Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.1982) (quoting Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir.1972)) (empha…
  • Turnipseed v. APMT, LLC, No. 2:18-cv-05187 (E.D. La. Oct. 13, 2022).
    Co., 385 F.2d 366, 368 (5th Cir. 1967) (quoting Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967)).
  • McFarland v. Hous. Auth. of Racine Cnty., No. 2:21-cv-00299 (E.D. Wis. Aug. 18, 2022).
    L.R. 41(c) (“Whenever it appears to the Court that the plaintiff is not diligently prosecuting the action, the Court may enter an order of dismissal with or without prejudice.”) “The sanction of dismissal is the most severe sanction that a…
  • Meyer v. Anderson, No. 2:19-cv-00640 (D.S.C. Apr. 13, 2021).
    Consequently, dismissal “must be tempered by a careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967).
  • Luraco Health & Beauty LLC v. Tran, No. 4:19-cv-00051 (E.D. Tex. May 27, 2020).
    Because it would be a drastic remedy to dismiss an action solely on these grounds, see Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967), the Motion for Leave to File Nunc Pro Tunc Response to Motion to Dismiss, (Dkt. #36), is GRANTED an…
  • Lawrence v. New Indus. L L C, No. 6:16-cv-00994 (W.D. La. June 6, 2019). 2 cites
    Co., 735 F.3d 309, 316 (5th Cir. 2013). 48Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967) (finding the sanction of dismissal warranted where 8 Dismissal with prejudice “should be reserved for the most egregious of cases.”49 Dismissal a…
  • John McMahan v. Deutsche Bank AG, No. 17-2988 (7th Cir. June 13, 2018).published
    “The sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.” Webber, 721 F.2d at 1069 (quoting Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967…
  • Belva Webb v. Joseph Morella, 457 F. App'x 448 (5th Cir. 2012).unpublished
    (The sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.)
  • King v. Majestic Pines Casino Food & Beverage Dep't, 11 Am. Tribal Law 395 (2011).published
    Consequently, dismissal “must be tempered by a careful exercise of judicial discretion.” Durgin v. Gra ham, 372 F.2d 130, 131 (5th Cir.1967).
  • David Lee Smith & Mary Julia Hook v. Comm'r, T.C. Memo. 2003-266 (Tax Ct. 2003).unpublished
    For the reasons stated in respondent’s Motion To Dismiss For - 14 - Failure To Properly Prosecute and the record and transcripts in these cases (as described in the historical summary set forth above) respondent’s Motion will be granted an…
Show 17 more citing cases
  • Roberts v. Strg Relocation Svc, No. 01-10412 (5th Cir. Mar. 29, 2002).unpublished
    The sanction of dismissal “is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967).
  • Marian Hutter Owen v. Herbert Wangerin, Mary Wangerin, Dave Thompson, 985 F.2d 312 (7th Cir. 1993).published
    “The sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.” Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir.1983) (quoting Durgin v. Graham, 3…
  • State SEC. Life Ins. Co. v. State, 498 So. 2d 825 (Miss. 1986).published
    (disposition of cases on their merits favored over default)
  • Levy v. Comm'r, 87 T.C. 794 (Tax Ct. 1986).published
    Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967). 4 The Court exercised its discretion and dismissed a case under Rule 123(b) for failure properly to prosecute in Freedson v. Commissioner, 67 T.C. 931 (1977), affd. 565 F.2d 954 (5th Cir…
  • Briehler v. Sylvia's, Inc., 106 F.R.D. 415 (D.R.I. 1985).published
    See Association de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir.1976); Richman v. General Motors Corp., supra. See also Durgin v. Graham, 372 F.2d 130, 131 (5th Cir.1967).
  • William Hallam Webber v. The Eye Corp., 721 F.2d 1067 (7th Cir. 1983).published
    “The sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (5th Cir.), cert. denied, 388 U.S. 919 , 87 S.Ct…
  • Fulton v. Van Slyke, 447 N.E.2d 628 (Ind. Ct. App. 1983).published
    Consequently, dismissal 'must be tempered by a careful exercise of judicial *636 discretion.' Durgin v. Graham, 372 F.2d 130, 131 (5th Cir.1967).
  • Bernard P. Colokathis v. Wentworth-Douglass Hosp., 693 F.2d 7 (1st Cir. 1982).published
    See Asociacion de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir.1976); Richman v. General Motors Corp., supra. See also Durgin v. Graham, 372 F.2d 130, 131 (5th Cir.1972).
  • Joseph Medeiros v. United States, 621 F.2d 468 (1st Cir. 1980).published
    See Asociacion de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir. 1976); Richman v. General Motors Corp., supra. See also Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1972).
  • Eduardo Zavala Santiago v. Alfredo Gonzalez Rivera, 553 F.2d 710 (1st Cir. 1977).published
    Because of the strong policy favoring the disposition of cases on the merits, see Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir. 1971), we, and federal courts generally, have frequently warned that dismissals for want of pros…
  • Freedson v. Comm'r, 67 T.C. 931 (Tax Ct. 1977).published
    (libel action)
  • Asociacion De Empleados Del Instituto De Cultura Puertorriquena v. Luis M. Rodriguez Morales, Etc., 538 F.2d 915 (1st Cir. 1976).published
    Nevertheless, we cannot say that the court abused its discretion in resorting to the sanction of dismissal, “the most severe sanction that a court may apply.” Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967).
  • Moore v. Cherry, 528 P.2d 1018 (Nev. 1974).published
    Because dismissal with prejudice “is the most severe sanction that a court may apply ... its use must be tempered by a careful exercise of judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (CA. 5, 1967).
  • Homer Bush v. The United States Postal Serv., 496 F.2d 42 (4th Cir. 1974).published 2 cites
    Consequently, dismissal ‘must be tempered by a careful exercise of judicial discretion.’ Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967).
  • Paris Reizakis v. Albert E. Loy, 490 F.2d 1132 (4th Cir. 1974).published 2 cites
    Consequently, dismissal 'must be tempered by a careful exercise of judicial discretion.' Durgin v. Graham, 372 F.2d 130, 131 (5th Cir. 1967).
  • Foss v. Gerstein, 58 F.R.D. 627 (S.D. Fla. 1973).published
    The sanction sought herein by both the State and Federal Defendants — dismissal of the action for Plaintiff’s failure to appear for deposition — “is the most severe sanction that a court may apply, and its use must be tempered by a careful…
  • Albert Flaksa v. Little River Marine Constr. Co., Inc., 389 F.2d 885 (5th Cir. 1968).published
    “The dismissal of an action with prejudice or the entry of a judgment by default are drastic remedies, and should *888 be applied only in extreme circumstances. * * * ” Independent Productions Corp. v. Loew’s Inc., 2 Cir., 283 F.2d 730, 73…
Other citing cases1 with no pin cite or quoted language on record
Retrieving the full opinion text from the archive…
Franklin W. DURGIN, Catherine Durgin, and Orpha Durgin, Appellants,
v.
John T. GRAHAM, M. Smith Burns, B. Clarke Nichols, and Lindsay Newspapers, Inc., Appellees
23070_1.
Court of Appeals for the Fifth Circuit.
Jan 27, 1967.
Published opinion
372 F.2d 130
1967 U.S. App. LEXIS 7629
Franklin W. Durgin and Catherine Durgin, pro se., B. Clarke Nichols, Naples, Fla., Tom Fairfield Brown, Tampa, Fla., for appel-lees.
Gewin, Ainsworth, Hunter.
Cited by 51 opinions  |  Published
PER CURIAM:

This suit for libel was instituted in the Federal District Court against the individual defendants, appellees here. Jurisdiction is pegged on diversity and the cause of action arises from a series of incidents involving the Sarasota Juvenile Court (appellees John T. Graham and M. Smith Burns, judge and chief counselor, respectively), the Assistant State Attorney (appellee B. Clarke Nichols), and the Publisher of the Sarasota Herald Tribune (appellee Lindsa ■ Newspapers, Inc.). The record reveals that despite the patience of several district court judges, appellants have declined to appear either personally or through counsel at any of the many proceedings below.

On October 23, 1963, the District Court entered an order of dismissal as to Lindsay Newspapers, Inc., having specifically found that appellants had willfully failed and refused to appear for the taking of their depositions. On June 28, 1965, an order of dismissal was entered as to the remaining defendants when appellants failed to appear or offer evidence on the scheduled trial date. This appeal followed. The sanction of dismissal is the most severe sanction that a court may apply, and its use must be tempered by a careful exercise of judicial discretion. However, where as here, appellants have not once appeared and have given no indication that they intend to do so in the future, we think it clear beyond any question that the district court was eminently correct in entering its orders of dismissal.

Affirmed.