Kurt Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047 (9th Cir. 1971). · Go Syfert
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Kurt Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047 (9th Cir. 1971). Cases Citing This Book View Copy Cite
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cited 3× by 2 distinct cases, last quoted 2008 · …the rights of the defendants to be free from costly and harassing litigation must be considered. at p. 1054 ✓
141 citation events (44 in the last 25 years) across 40 distinct courts.
Strongest positive: Hobbs v. M3 Engineering & Technology Corporation (azd, 2023-09-28)
Treatment trajectory · 1972 → 2026 · click a year to view as-of
1972 1999 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Hobbs v. M3 Engineering & Technology Corporation
D. Ariz. · 2023 · quote attribution · 1 verbatim quote · confidence high
the harshness of a 22 dismissal under rule 41(b) with prejudice is directly proportionate to the likelihood that 23 plaintiff would prevail if permitted to go forward to trial.
examined Cited as authority (quoted) David Merritt v. Countrywide Financial Corporat
9th Cir. · 2014 · quote attribution · 1 verbatim quote · confidence low
since harshness is a key consideration in the district judge's exercise of discretion, it is appropriate that he consider the strength of a plaintiff's case if such information is available to him before determining whether dismissal with prejudice is appropriate.
examined Cited as authority (quoted) David Merritt v. Countrywide Financial Corporat
9th Cir. · 2014 · quote attribution · 1 verbatim quote · confidence low
since harshness is a key consideration in the district judge's exercise of discretion, it is appropriate that he consider the strength of a plaintiff's case if such information is available to him before determining whether dismissal with prejudice is appropriate.
discussed Cited as authority (rule) Kenneth Laddie, Rebekah Laddie, Phillip Dial, and Rhonda Dial v. Alaran Construction, Inc.
Ala. · 2026 · confidence medium
Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir. 1971), cert. denied, 404 U.S. 1039, 92 S. Ct. 715, 30 L.
discussed Cited as authority (rule) Bonnie Jean Myers v. BBH PBMC, LLC, d/b/a Princeton Baptist Medical Center; Brookwood Baptist Health 2, LLC; and Healthcare Network Alabama, Inc.
Ala. · 2025 · confidence medium
Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir. 1971), cert. denied, 404 U.S. 1039 , 92 S. Ct. 715 , 30 L.
discussed Cited as authority (rule) Nicholas Hoffman v. City of Birmingham Retirement and Relief System and the Board of Managers of the City of Birmingham Retirement and Relief System (Appeal from Jefferson Circuit Court: CV-23-900802).
Ala. · 2024 · confidence medium
Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir. 1971), cert. denied, 404 U.S. 1039 , 92 S. 9 SC-2023-0803 Ct. 715, 30 L.
discussed Cited as authority (rule) Cruz v. United States Parcel Service
S.D. Cal. · 2024 · confidence medium
Given the potential 10 for such an extreme result, courts must usually first consider less drastic alternatives, 11 such as “arranging for substitute counsel or [] continuing the proceedings in order to 12 allow plaintiff to come into compliance with a pretrial order.” Von Poppenheim v. 13 Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1053 (9th Cir. 1971).
discussed Cited as authority (rule) Hilton v. California Casualty General Insurance Co
E.D. Wash. · 2023 · confidence medium
P. 41(b). 12 Involuntary dismissal is a “harsh remedy” that district courts should be reluctant to 13 grant, short of “aggravated circumstances.” Von Poppenhem v. Portland Boxing 14 and Wrestling Commission, 442 F.2d 1047, 1049 (9th Cir. 1971).
discussed Cited as authority (rule) Nova Donald Novobilski v. Specialized Loan Servicing, LLC
C.D. Cal. · 2022 · confidence medium
The decision to dismiss for failure to comply with an order 20 is within the discretion of the trial judge.” Fendler v. Westgate-Cal. Corp., 527 F.2d 1168, 1170 (9th 21 Cir. 1975) (citing O’Brien v. Sinatra, 315 F.2d 637, 641 (9th Cir. 1963); Von Poppenheim v. 22 Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1049 (9th Cir. 1971)). “[T]he failure to 23 prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a showing of 24 actual prejudice to the defendant from the failure.” Morris v. Morgan Stanley & Co., 942 F.2d 648 , 25 651 (9th Cir. 1991) …
discussed Cited as authority (rule) Charlie Orea v. Quality Loan Service Corp. (2×) also: Cited "see, e.g."
9th Cir. · 2021 · confidence medium
App. P. 34(a)(2). 3 Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1049 (9th Cir. 1971).1 Likewise, we perceive no abuse of discretion in the district court’s dismissal of the action with prejudice.
discussed Cited as authority (rule) Leftenant v. Blackmon
D. Nev. · 2021 · confidence medium
“Dismissal under Rule 41(b) is a harsh remedy, and because such dismissals are 10 frequently occasioned by inattention of counsel rather than by plaintiff’s own wrongdoing, courts 11 are rightfully reluctant to employ 41(b) sanctions for failure to comply with an order of the court.” 12 Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1049 (9th Cir. 1971) 13 (citing Industrial Buildings Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir. 1970)). 14 It is equally clear, however, that aggravated circumstances may make dismissal under 41(b) 15 appropriate.
cited Cited as authority (rule) Michael Gibbs v. Anthony Hedgpeth
9th Cir. · 2010 · confidence medium
Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1049, 1053-54 (9th Cir.1971).
discussed Cited as authority (rule) Young v. Allstate Insurance Co. (2×)
Haw. · 2008 · confidence medium
So too must the time and energies of our courts and the rights of would be litigants awaiting their turns to have other matters resolved." (quoting Von Poppenheim v. Portland Boxing and Wrestling Comm'n, 442 F.2d 1047, 1054 (9th Cir.1971))).
discussed Cited as authority (rule) Hearns v. San Bernardino Police Department (2×)
9th Cir. · 2008 · confidence medium
Defendants are then put at risk that their outline differs from the judge’s, that plaintiffs will surprise them with something new at trial which they reasonably did not understand to be in the case at all, and that res judicata effects of settlement or judgment will be different from what they reasonably expected. “[T]he rights of the defendants to be free from costly and harassing litigation must be considered.” Von Poppenheim [v. Portland Boxing and Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir.1971) ].
discussed Cited as authority (rule) Hearns v. City of San Bernardino Police Department
9th Cir. · 2008 · confidence medium
Defendants are then put at risk that their outline differs from the judge’s, that plaintiffs will surprise them with some- thing new at trial which they reasonably did not understand to be in the case at all, and that res judi- cata effects of settlement or judgment will be differ- ent from what they reasonably expected. “[T]he rights of the defendants to be free from costly and harassing litigation must be considered.” Von Pop- penheim [v. Portland Boxing and Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir. 1971)].
discussed Cited as authority (rule) Capaci v. Folmar Kenner, LLC.
Ala. Civ. App. · 2008 · confidence medium
“Because the trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance, his decision to grant a motion to dismiss for failure to prosecute will be accorded considerable weight by a reviewing court.” Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d at 341 (citing Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947 (9th Cir.1976), and Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1051 (9th Cir.1971)).
discussed Cited as authority (rule) Hatcher v. Easyriders Licensing, Inc.
9th Cir. · 2003 · confidence medium
When reviewing the district court’s determination of whether the party has complied with its previous order “[t]he district judge’s evaluation of whether the plaintiff complied with his order ‘is entitled to considerable weight.’ ” McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.1996) (citing Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1051 (9th Cir.1971)).
discussed Cited as authority (rule) Derek J. Bloodworth v. Los Angeles County Sheriff's Deputies Freiwirth, Levy, Boyce, & Hansen
9th Cir. · 1996 · confidence medium
Moreover, the "district judge's evaluation of whether the plaintiff complied with his order 'is entitled to considerable weight.' " McHenry v. Renne, No. 94-15179, slip op. 6321, 6333 (9th Cir. May 28, 1996) (quoting Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir.1971)). 4 Bloodworth contends that the district court abused its discretion in denying his motion for additional discovery, pursuant to Fed.R.Civ.P. 56(f) 1 , and in turn dismissing the action for failure to prosecute.
discussed Cited as authority (rule) Mchenry v. Renne
9th Cir. · 1996 · confidence medium
The district judge's evaluation of whether the plaintiff complied with his order "is entitled to considerable weight." Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1051 (9th Cir.1971). 30 The Federal Rules require that averments "be simple, concise, and direct." The drafters of the rules anticipated that some lawyers and judges, particularly in code pleading states with different rules, might not understand just what was meant.
discussed Cited as authority (rule) McHenry v. Renne
9th Cir. · 1996 · confidence medium
The district judge’s evaluation of whether the plaintiff complied with his order “is entitled to considerable weight.” Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1051 (9th Cir.1971).
discussed Cited as authority (rule) Gonzales v. Surgidev Corp.
N.M. · 1995 · confidence medium
Newsome, 103 N.M. at 421 , 708 P.2d at 333 (quoting Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972)).
cited Cited as authority (rule) Lowery v. Atterbury
N.M. · 1992 · confidence medium
Id. (quoting Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1053-54 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972)).
cited Cited as authority (rule) Claitt v. Newcomb
E.D. Va. · 1990 · confidence medium
Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1049 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Bassey Udom v. Daniel Fonseca
9th Cir. · 1988 · confidence medium
Hamilton v. Neptune Orient Lines, Ltd., 811 F.2d 498, 500 (9th Cir.1987) (Kennedy, J.) (“meaningful alternatives must be explored”); Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Ann J. Malone v. United States Postal Service, an Agency of the United States (2×)
9th Cir. · 1987 · confidence medium
See Callip v. Harris County Child Welfare Department, 757 F.2d 1513, 1522 (5th Cir.1985); United Artists Corp. v. La Cage Aux Folles, Inc., 771 F.2d 1265, 1271 (9th Cir.1985); Nevijel v. North Coast Life Insurance Co., 651 F.2d 671, 674 (9th Cir.1981); Huey v. Teledyne, Inc., 608 F.2d 1234, 1238 (9th Cir.1979); Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1053 (9th Cir.1971), ce rt. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Cia Petrolera Caribe, Inc. v. Abba Service Center
D.P.R. · 1987 · confidence medium
However, in considering whether default is an appropriate sanction other factors must also be borne in mind, such as “the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved.” Affanato v. Merrill Bros., 547 F.2d 138 (1st Cir.1977), citing, Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
cited Cited as authority (rule) Hamilton v. Neptune Orient Lines, Ltd.
9th Cir. · 1987 · confidence medium
Van Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
cited Cited as authority (rule) No. 85-2149
9th Cir. · 1987 · confidence medium
Van Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Lyons v. Wickhorst (2×)
Cal. · 1986 · confidence medium
(See, e.g., Darms v. McCulloch Oil Corp. (8th Cir. 1983) 720 F.2d 490 , 495 [dismissal affirmed where plaintiffs refused to put on any evidence although two years had elapsed since the denial of class certification]; Von Poppenheim v. Portland Boxing & Wrestling Com’n (9th Cir. 1971) 442 F.2d 1047, 1053-1054 [dismissal affirmed where plaintiff refused to comply for 11 months with the court’s order that he set forth with specificity the acts he claimed formed the basis of his cause of action].) The sanction of dismissal with prejudice is a quid pro quo for a plaintiff’s intransigence.
discussed Cited as authority (rule) Dakota Bank & Trust Co. of Fargo v. Brakke (2×)
N.D. · 1985 · confidence medium
We should keep in mind "the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved;" Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
cited Cited as authority (rule) Newsome v. Farer
N.M. · 1985 · confidence medium
Von Poppenheim v. Portland Boxing and Wrestling Comm’n, 442 F.2d 1047, 1053-54 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) LaPrade v. Lehman (2×)
D.C. · 1985 · confidence medium
The landlord states that the witnesses appeared, but then were put on telephone notice and given permission to leave because there were no trial judges available, and no judges were expected to become available that morning. [3] Superior Court Civil Rule 41(b) "is to be construed in light of the meaning of [the corresponding] federal rule." Taylor, 407 A.2d at 590 n. 4; see Beckwith v. Beckwith, 379 A.2d 955 , 959 n. 5 (D.C.1977). [4] See also Tolbert, 623 F.2d at 587 ; Anderson v. Air West, Inc., 542 F.2d 522, 525 (9th Cir.1976); Mann v. Merrill Lynch, Pierce, Fenner & Smith, 488 F.2d 75, 76 …
discussed Cited as authority (rule) Bell v. Inland Mutual Insurance (2×)
W. Va. · 1985 · confidence medium
At the same time, however, in considering wehther default is an appropriate sanction other factors must also be borne in mind, such as ‘the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved.’ Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir.1971), ce rt. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Transportes Aereos de Angola v. Ronair, Inc.
D. Del. · 1985 · confidence medium
“Somewhere along the line, the rights of the defendants to be free from costly and harassing litigation must be considered.” Von Poppenheim v. Portland Boxing and Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
cited Cited as authority (rule) Rainbow Pioneer 44-18-04a, a General Partnership v. Hawaii-Nevada Investment Corporation, a Nevada Corporation, and Herman B. Rothbard
9th Cir. · 1983 · confidence medium
Co., 617 F.2d 1365, 1369 (9th Cir.1978); Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1049 (9th Cir.1971).
discussed Cited as authority (rule) Warden v. Federal Bureau of Investigation
N.D. Ill. · 1981 · confidence medium
See such cases as Asociacion de Empleados v. Rodriguez Morales, 538 F.2d 915 (1st Cir. 1976); Stanley v. Continental Oil Co., 536 F.2d 914, 916-17 (10th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1051-53 (9th Cir. 1971); Hyler v. Reynolds, 434 F.2d 1064 (5th Cir. 1970).
cited Cited as authority (rule) Joseph Nevijel v. North Coast Life Insurance Co., a Washington Corporation
9th Cir. · 1981 · confidence medium
Von Poppenheim v. Portland Boxing and Wrestling Comm., supra at 1054.
cited Cited as authority (rule) Ellis v. Harland Bartholomew & Associates
Haw. App. · 1980 · confidence medium
Von Poppenheim v. Portland Boxing and Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir. 1971).
discussed Cited as authority (rule) Anderson v. City of Northlake
N.D. Ill. · 1980 · confidence medium
This policy, however, must be balanced against “the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved.” Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1054 (9th Cir. 1971), cert, denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Otis C. Tolbert v. Elliott Leighton
9th Cir. · 1980 · confidence medium
Anderson v. Air West, Inc., 542 F.2d 522, 525-26 (9th Cir. 1976); Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1053-54 (9th Cir. 1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972); see Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339 (9th Cir. 1970).
discussed Cited as authority (rule) Fed. Sec. L. Rep. P 97,198 Roy Huey v. Teledyne, Inc.
9th Cir. · 1979 · confidence medium
Anderson v. Air West, Inc., supra, 542 F.2d at 525 ; Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir. 1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
discussed Cited as authority (rule) Saylor v. Bastedo
S.D.N.Y. · 1979 · confidence medium
The Court must also consider “the rights of the defendants to be free from costly and harassing litigation . [and] the rights of would-be litigants awaiting their turns to have other matters resolved.” Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir. 1971), quoted in Saylor v. Bastedo, supra, 71 F.R.D. at 385 .
discussed Cited as authority (rule) Harold Affanato v. Merrill Brothers and Cianbro Corporation, Appeal of Cianbro Corporation
1st Cir. · 1977 · confidence medium
The essential reason for the traditional reluctance of the courts to default a party is the “policy of the law favoring the disposition of cases on their merits.” Richman v. General Motors Corp., 437 F.2d 196, 199 (1st Cir. 1971) (citing cases). 3 At the same time, however, in considering whether default is an appropriate sanction other factors must also be borne in mind, such as “the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved.” Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1054 (9t…
discussed Cited as authority (rule) J. F. Edwards Construction Company v. Anderson Safeway Guard Rail Corporation
7th Cir. · 1976 · confidence medium
Forteza e Hijos, Inc. v. Mills, 534 F.2d 415, 419 (1st Cir. 1976); Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910, 914 (2d Cir. 1959); Von Poppenheim v. Portland Boxing & Wrestling Com'n, 442 F.2d 1047, 1053-1054 (9th Cir. 1971), certiorari denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 ; Waterman, supra, at 424-425; 3 Moore's Federal Practice, P 16.19 at 1135 (2d ed. 1974). 30 To recapitulate, Rule 16 of the Federal Rules of Civil Procedure does not compel a stipulation of facts, so that sanctions for failure to file one are not available.
discussed Cited as authority (rule) J. F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp.
7th Cir. · 1976 · confidence medium
Forteza e Hijos, Inc. v. Milis, 534 F.2d 415, 419 (1st Cir. 1976); Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910, 914 (2d Cir. 1959); Von Poppenheim v. Portland Boxing & Wrestling Com’n, 442 F.2d 1047, 1053-1054 (9th Cir. 1971), certiorari denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 ; Waterman, supra, at 424-425; 3 Moore’s Federal Practice, 116.19 at 1135 (2d ed. 1974).
discussed Cited as authority (rule) Asociacion De Empleados Del Instituto De Cultura Puertorriquena v. Luis M. Rodriguez Morales, Etc. (2×) also: Cited "see, e.g."
1st Cir. · 1976 · confidence medium
Von Poppenheim v. Portland Boxing & Wrestling Commission, 442 F.2d 1047, 1053-54 (9th Cir. 1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972). 7 .
discussed Cited as authority (rule) Saylor v. Lindsley
S.D.N.Y. · 1976 · confidence medium
The exact point on that line is incapable of exact definition, but we are satisfied that the present case went beyond it.” Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047, 1054 (9th Cir. 1971).
discussed Cited as authority (rule) Finley v. Parvin/Dohrmann Co.
2d Cir. · 1975 · confidence medium
The court’s remark in Von Poppenheim v. Portland Boxing and Wrestling Comm’n, 442 F.2d 1047, 1054 (9 Cir. 1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972), “[s]omewhere along the line, the rights of the defendants to be free from costly and harassing litigation must be considered,” which defendants quote to us, does not run contrary to our analysis.
discussed Cited as authority (rule) S & K Airport Drive-in, Inc. v. Paramount Film Distributing Corp.
E.D. Pa. · 1973 · confidence medium
(N.T. 14) As the Court of Appeals for the Ninth Circuit observed in Von Poppenheim v. Portland Boxing and Wrestling Comm., 442 F.2d 1047, 1054 (9th Cir. 1971): “Somewhere along the line, the rights of the defendants to be free from costly and harassing litigation must be considered.
discussed Cited "see" Power Constructors, Inc. v. Acres American (2×)
Alaska · 1991 · signal: see · confidence high
See *1056 Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047, 1054 (9th Cir.1971), cert. denied, 404 U.S. 1039 , 92 S.Ct. 715 , 30 L.Ed.2d 731 (1972).
Retrieving the full opinion text from the archive…
Kurt VON POPPENHEIM, Appellant,
v.
PORTLAND BOXING & WRESTLING COMMISSION Et Al., Appellees
23846_1.
Court of Appeals for the Ninth Circuit.
Aug 9, 1971.
442 F.2d 1047
Adelbert G. Clostermann (argued), Portland, Or., for appellant., Emory Crofoot (argued), Deputy City Atty., Marion Rushing, City Atty., Portland, Or., John R. Gilbertson (argued), Miles Sweeney, of White, Sutherland & Gilbertson, Portland, Or., Richard Muller (argued), Portland, Or., for appellees.
Hamley, Wright, Lindberg.
Cited by 105 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #19,208 of 633,719
Citer courts: Ninth Circuit (2)
LINDBERG, District Judge:

This appeal concerns that portion of Rule 41(b) of the Federal Rules of Civil Procedure that authorizes the court to dismiss a plaintiff’s action with prejudice for his failure to comply with an order of the court. The appeal is properly before us pursuant to 28 U.S.C. § 1291.

Plaintiff Kurt von Poppenheim is a professional wrestler from Portland, Oregon. Defendants are the Portland Boxing & Wrestling Commission, the individual members of the Commission, the National Wrestling Alliance, Don Owen, Don Owen Sports, Inc., Mount Hood Radio & Television Broadcasting Corporation, and the National Wrestling Association of America. The Commission is a statutory body which has jurisdiction over all boxing and wrestling matches conducted within its territory. ORS 463.110, 463.120. One of its functions is the appointing of official wrestling matchmakers. ORS 463.140. Defendant Don Owen is the only wrestling matchmaker the Commission has appointed in the Portland area. Defendant National Wrestling Alliance is a national association of wrestling promoters; whereas the National Wrestling Association of America is primarily an association of wrestling commissioners. Defendant Mount Hood Broadcasting owns and operates a Portland television station which periodically has televised wrestling programs promoted by Don Owen.

In September of 1963 von Poppenheim applied to the Commission for a wrestling matchmaker’s license in the Portland area. The Commission eventually denied the application on the stated basis that “the issuance of a second wrestling matchmaker’s license at this time would not be in the best interest of wrestling in the Portland area.”

Plaintiff promptly filed suit against the Commission in the Circuit Court of the State of Oregon, alleging that the Commission’s action was arbitrary and capricious and accomplished an “unlawful monopoly in commercial licensed professional wrestling.” He sought a mandatory injunction to compel the Commission to issue him a license. The Oregon Circuit Court dismissed plaintiff’s action on the pleadings after considering an original and two amended complaints. On appeal, the Oregon Supreme Court affirmed the dismissal. [1] 241 Or. 603, 407 P.2d 853 (1965).

Two months later von Poppenheim initiated the present action in the Federal District Court for the District of Oregon. The thrust of his complaint was that the members of the Commission had some time in the past entered into a conspiracy and combination with the other defendants “to restrain trade and commerce among the several states in the business of professional wrestling” in violation of federal antitrust provisions. It also alleged that the state statutes creating and empowering the commission to appoint matchmakers were, for various reasons, unconstitutional. Plaintiff sought treble damages, a declaration that the state statutes were unconstitutional, an injunction preventing the enforcement of these statutes, and[*1049] an injunction preventing defendants from “interfering in any way with plaintiff in his occupation of wrestling matchmaker and promoter in the Portland area.”

Approximately fourteen months after the action was originally filed, the district judge to whom the ease was assigned requested plaintiff to submit a detailed pretrial statement to the court in order to clarify the issues involved in the case. Nearly six months after the statement was due, but not forthcoming, defendants moved for a dismissal under Rule 41(b). The court did not grant the motion, but gave plaintiff further time to submit a satisfactory statement. Plaintiff eventually submitted several statements, but the district judge held that they failed to comply with the requirements of his order. He then granted the defendants’ motion to dismiss with prejudice. This appeal followed.

Insofar as it is applicable to this case, Rule 41(b) provides:

For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him. * * * Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision * * * operates as an adjudication upon the merits.

Because a dismissal under Rule 41(b) is such a harsh remedy, and because such dismissals are frequently occasioned by inattention of counsel rather than by plaintiff’s own wrongdoing, courts are rightfully reluctant to employ 41(b) sanctions for failure to comply with an order of the court. Industrial Buildings Materials, Inc. v. Interchemical Corporation, 437 F.2d 1336 (9th Cir. 1970); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.), cert. denied, 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Syracuse Broadcasting Corp. v. Newhouse, 271 F.2d 910 (2d Cir. 1959). It is equally clear, however, that aggravated circumstances may make dismissal under 41(b) appropriate. Agnew v. Moody, 330 F.2d 868 (9th Cir.), cert. denied, 379 U.S. 867, 85 S.Ct. 137, 13 L.Ed.2d 70 (1964); O’Brien v. Sinatra, 315 F.2d 637 (9th Cir. 1963). In those cases the district judge will be reversed only if he has abused his discretion in dismissing the action. Industrial Building Materials, Inc. v. Interchemical Corp., supra; Blake v. De Vilviss, 118 F.2d 346 (6th Cir. 1941); see Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Russell v. Cunningham, 233 F.2d 806 (9th Cir. 1956).

In the present action, the crux of the problem in the district court was plaintiff’s continuing failure to advise defendants sufficiently of the basis of his claim or the facts upon which he was relying to enable them to prepare an appropriate defense. Plaintiff’s complaint was prolix, confused and obscure. More important from the defendants’ point of view, however, was plaintiff’s subsequent inability or unwillingness to narrow the legal issues or set out with any degree of particularity the facts upon which he based the broad and con-clusory statements of his complaint. [2] Defendants deposed and served interrogatories on plaintiff on several occasions. Plaintiffs responses to the' critical portions of these discovery efforts were consistently unresponsive. They failed to narrow the scope of inquiry or form a satisfactory base from which defend[*1050] ants could proceed in the preparation of their defense. [3]

On April 24, 1967, approximately fourteen months after the action had been filed, plaintiff’s counsel advised the district judge that plaintiff’s preparation could be “wrapped up for the Court” within thirty to sixty days. The district judge then requested plaintiff to file a pretrial statement with the court within sixty days.

I want a statement of what the conspiracy or conspiracies consist, with specificity, I should add.
Secondly, the names of the witnesses who will give you information concerning the existence of a conspiracy.
And, thirdly, the testimony you believe these witnesses will give.
With reference to point number one, I think you should set out the parties to the conspiracy and the role which each of those parties played.

He also urged plaintiff’s counsel to associate with someone who was more experienced with federal litigation, and in particular with antitrust litigation.

When plaintiff failed to prepare a pretrial statement within the sixty days, opposing counsel contacted plaintiff’s attorney, reminded him of his duty to file a statement, and urged him to do so promptly. Plaintiff still did not prepare a statement; instead plaintiff’s counsel prepared a letter containing information that vaguely followed the contours of the statement requested by the court and sent it to defendant’s attorneys. No other efforts to comply with the court order were taken.

Six months passed. During this period defendants’ counsel informally contacted plaintiff’s attorney and expressed dissatisfaction with the quality of the information contained in the July letter. In December, 1967, defendants finally filed motions to have plaintiff’s action dismissed for failure to comply with the court’s order. When the motions were jointly argued on January 2, 1968, the district judge indicated that the July letter did not constitute compliance with the court’s order because the information contained therein was conclusory, incomplete and otherwise obscure. He did not rule on the motion to dismiss,[*1051] however, because of the possibility that plaintiff had been under the misimpression that the information contained in the letter was sufficient. The judge allowed plaintiff a period of several more weeks in which to file a statement containing the information originally requested. He made it clear, however, that he expected the statement to be “as full and as specific as possible” and that if the statement was inadequate he would “have no alternative but to dismiss the ease.”

On February 1, 1968, a statement was filed. In several respects this statement was more expansive than the July letter, but it too failed to set forth with specificity the requested information. Rather than dismiss the case, the district judge granted plaintiff a further extension of a month within which to submit a presentable document. He again urged plaintiff’s counsel to associate with an experienced antitrust attorney.

Plaintiff’s attorney again failed to heed the district judge’s advice to associate with experienced counsel. Instead, he prepared and presented to the court and counsel for the defendant on March 11, 1968, a new document entitled “Plaintiff’s Memorandum and Supplemental Statement.” This memorandum was largely a narrative summary made up from documents which plaintiff relied upon to prove his case. The documents themselves were attached to the statement in the form of exhibits. After they were given sufficient time to examine the supplementary statement, defendants renewed their motions to dismiss under Rule 41(b) and argued the matter before the Court on March 25, 1968. Their main objection was that plaintiff’s statements still lacked the specificity required by the Court and necessary to enable them to prepare an intelligent defense. The district judge took the motions under submission, reviewed the entire case, and entered an order granting defendants’ motions to dismiss.

This appeal raises two issues: (1) whether the letter and statements, taken singularly or together, did in fact constitute compliance with the court’s order; (2) whether, notwithstanding noncompliance, the district judge abused his discretion in dismissing the action with prejudice.

The district judge held that the documents did not comply with his order. Although this determination is reviewable, it is entitled to considerable weight. Industrial Building Materials, Inc. v. Interehemical Corp., swpra. The district judge is in the best position to understand the full content of his order, to assess the efforts to accomplish compliance, and to appreciate the extent that the information actually supplied was helpful in accomplishing the purpose of the order. Industrial Building Materials, Inc. v. Interehemical Corp., supra. We have reviewed the documents that plaintiff submitted in response to the court’s order, and we cannot say that the district judge’s determination was erroneous. Plaintiff never did set out a full list of the names of the witnesses he relied upon to establish the conspiracy. He did mention that he intended to rely upon the “testimony and writings” of several of the defendants and their close business associates, but he also indicated his reliance upon “former wrestlers and some others,” all of whom remained unidentified. He also failed to set out the nature or substance of the testimony he expected to elicit from any of his witnesses, and his description of the role played by each of the defendants, insofar as their actions were supposed to be illegal, remained imprecise and undetailed. Absent the quality and kind of information requested by the court, the documents were completely inadequate.

Given the inadequacy and untimeliness of plaintiff’s statements, however, the issue still remains of whether the dismissal with prejudice was an abuse of the district judge’s discretion. See, e. g., Industrial Building Materials, Inc. v. Interchemical Corp., supra; cf. Sykes v. United States, 290 F.2d 555 (9th Cir. 1961). In the analysis of this issue the[*1052] opinion of the district judge dismissing plaintiff’s action is an appropriate beginning point.

Kurt von Poppenheim (plaintiff) filed an action charging, in vague and general terms, that defendants had conspired to deny him a license to promote wrestling matches in Portland, Oregon, in violation of federal antitrust laws.
I denied defendants’ motions to dismiss in order to give plaintiff the opportunity to obtain the information he needed to establish his case. I granted plaintiff extensions of time to submit interrogatories. After several months, I told plaintiff that I could not allow an antitrust case to continue when it was based solely on suspicion. Finally, I directed him to set forth, with specificity, the acts which he claimed formed the basis of the conspiracy. I also directed him to list the witnesses who would testify at the trial, and to state generally what he expected them to say. I gave him sixty days to do this.
Plaintiff has failed to comply with this order and defendants have moved to dismiss the action under Rule 41(b) Federal Rules of Civil Procedure. On numerous occasions extending over a period of more than 12 months, I urged plaintiff’s counsel to comply with my order and to associate with him counsel possessing expertise in the antitrust field. The case has been pending for two and a half years, and I issued my order directing plaintiff to specify the basis for his action one and a half years ago. So far he has failed to comply with this order.
Despite the narrowness of defendants’ motions, I have examined the entire record, consisting of three volumes of interrogatories, briefs, depositions, and transcripts to determine whether the plaintiff has any claim against any or all of the defendants. I have examined the authorities upon which plaintiff relies, as well as the case from the Supreme Court of Oregon in which plaintiff sued defendant Commission. I have also made an independent examination of the law.
•ft -X* *X* ■ft •ft 'ft
Plaintiff apparently believes that the defendants are acting in concert to keep him from staging wrestling exhibitions in Portland, but surmise and suspicion are not substitutes for evidence.
* -X- * * * *
I believe that before the City of Portland’s Boxing and Wrestling Commission or the other defendants should be put to the expense of defending an antitrust action, they are entitled to know the contentions they will have to meet. I am reluctant to dismiss an action without a hearing. I never do it where the complaint states a claim defectively; I will do it only where it affirmatively appears that the plaintiff is unable to make out a claim. I am convinced that here plaintiff cannot make out a claim upon which relief can be granted and that additional time will not solve the problem.
The defendants’ motions to dismiss under Rule 41(b) Fed.R.Civ.P. are granted. [4]

Although we are aware of the serious consequences of the district court’s dismissal, we are satisfied after[*1053] reviewing the entire record that the action of the district judge was within the limits of his discretion. Almost two years after this action had been filed, and almost one year after plaintiff had originally estimated that his discovery was nearly complete, plaintiff had still failed to apprise the defendants of the contentions they were to meet. In these circumstances plaintiff’s failure to provide the requested information did not merely make normal progress more difficult. The status of the pleadings and of discovery were such that noncompliance prevented any further progress at all. It is not clear whether plaintiff’s failure to make this basic information available was a result of a “conscious and deliberate decision,” O’Brien v. Sinatra, 315 F. 2d 637 (9th Cir. 1963), or merely a result of gross inadvertence or inexperience. That issue is not determinative. Plaintiff’s failure to comply with the order demonstrated either an obstinate determination not to provide the requested information or, if inexperience was the problem, an impervious unwillingness to follow the advice of the court to associate experienced antitrust counsel. In either case, plaintiff’s failure to take reasonable steps to provide the basic information frustrated all hope of molding his case into a justiciable posture.

None of the actions taken by the district judge accomplished compliance. The original order was clear and unam-

biguous. The information sought was not complex; much of it in fact consisted of listing plaintiff’s witnesses and detailing the content of their anticipated testimony. When plaintiff neither timely nor adequately complied with the court’s order, the district judge granted him several extensions in time to comply. The total time permitted for compliance was eleven months. During this period the court repeatedly urged plaintiff’s counsel to find expert help. He also advised counsel that noncompliance would result in dismissal with prejudice. After eleven months compliance simply was not forthcoming.

In Industrial Building Materials, Inc. v. Interchemical Corporation, 437 F.2d 1336, this Court recently reaffirmed the position that the sanctions of Rule 41(b) to enforce a court order should only be invoked in extreme circumstances. That decision stressed that less drastic alternatives should first be considered before dismissing an action under Rule 41(b). Notably, under the circumstances of that case, we specifically suggested the possibilities of arranging for substitute counsel or of continuing the proceedings in order to allow plaintiff to come into compliance with a pretrial order. In the present case it is clear that the district judge exhausted both of these alternatives.

There are of course a wide variety of other sanctions short of dismissal that are available. [5] The district judge,[*1054] however, need not exhaust them all before finally dismissing a case. The exercise of his discretion to dismiss requires only that possible and meaningful alternatives be reasonably explored, bearing in mind the drastic foreclosure of rights that dismissal effects. Here the district judge made such reasonable opportunities and alternatives available to plaintiff that the dismissal was not an abuse of his discretion. Somewhere along the line, the rights of the defendants to be free from costly and harassing litigation must be considered. So too must the time and energies of our courts and the rights of would-be litigants awaiting their turns to have other matters resolved. The exact point on that line is incapable of exact definition, but we are satisfied that the present case went beyond it.

The judgment- of the district court is affirmed.

1

. The Oregon Supreme Court first held that at the time von Poppenheim had applied to be appointed a wrestling matchmaker the Commission only had the statutory power to appoint boxing matchmakers. It noted, however, that in the interim period between the time of von Poppenheim’s application and the hearing of his ease on appeal the Oregon legislature had given the Commission responsibility to appoint wrestling matchmakers. OKS 463.140 (1965). Construing plaintiff’s application under the new law, the Oregon court held that the Commission’s action was not arbitrary or capricious.

2

. The Federal Rules of Civil Procedure do not require a claimant’s complaint to set out in detail the facts upon which he bases his claim. All that is required is a short and plain statement of the claim that will give the defendant “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957). Concomitantly, however, it is expected that the Rules’ liberal discovery provisions will afford the defendant the opportunity to investigate more precisely the nature and basis of the plaintiff’s claim and to define more narrowly the disputed facts and issues. Conley v. Gibson, supra.

3

. The following excerpt from plaintiff’s “Answers to Interrogatories” filed October 25, 1966 is illustrative:

18. With reference to Paragraph XXV, starting on Line 1, Page 8, of your Complaint, in what way, if any, are these interrogating defendants connected with the making, licensing or distributing of motion pictures of wrestling exhibitions?
A. I am unable to presently answer this question.
19. What are the arrangements, if any, between the defendant, Mt. Hood Radio and Television Broadcasting Corporation and these interrogating defendants?
A. I am not fully informed at the present time.
* * * * *
28. Did these interrogating defendants or any of them individually ever at any time enter into a contract with defendant Don Owen or anyone else setting up a monopoly of professional wrestling by promoter-matchmaker Don Owen within the jurisdiction of the defendant Commission?
A. Activities suggest some arrangement.
* sfc * * *
33. Who, among these interrogating defendants, were the parties to the alleged conspiracy?
A. All.
34. On what date was the agreement of the conspiracy reached?
A. Various dates.
35. State the names and addresses of all persons present at the time the agreement of conspiracy was entered into.
■A. Presently unable to answer.
36. Was the agreement of conspiracy a written document or was it an oral agreement?
A. In part.
37. If said agreement of conspiracy was a written document and you will do so without a motion to produce, attach a copy of said document to your answers to these interrogatories.
A. Presently unable to answer.
38. If the conspiracy agreement was oral, state the contents of said agreement in detail.
A. Presently unable to answer.
4

. On this appeal plaintiff has obliquely suggested that the district judge’s dismissal was in the nature of a summary judgment or dismissal for having failed to state a claim rather than for having failed to comply with the court’s order. If such were the case, of course, our standards of review would be quite different. Compare DeWitt v. Pail, 366 F.2d 682 (9th Cir. 1966) and Hughes Blades v. Diamond Tool Associates, 300 F.2d 853 (9th Cir. 1962) with O’Brien v. Sinatra, supra. (We would also note in this connection that no motion to dismiss or for summary judgment was before the court.) We have thoroughly examined the entire record in this ease to test the merits of plaintiff’s suggestion. We are satisfied after this examination that the moving cause of the dismissal was plaintiff’s failure to submit[*1053] an adequate statement to the court and that the dismissal was in fact based upon Rule 41(b).

The district judge was obviously aware of the legal hurdles plaintiff faced in this litigation and of the general quality of proof he relied upon to establish his case. This information, however, was ancillary; it was one of many factors the court took into consideration before determining that dismissal with prejudice was appropriate.

A dismissal under Rule 41(b) is not grounded on the sufficiency or insufficiency of the merits of a case. However, it is patent that the harshness of a dismissal with prejudice is directly proportionate to the likelihood that plaintiff would prevail if permitted to go forward to trial. Since harshness is a key consideration in the district judge’s exercise of discretion, it is appropriate that he consider the strength of a plaintiff’s case if such information is available to him before determining whether dismissal with prejudice is appropriate. In the instant case such information was before the district judge.

5

. See generally, Annotation: Dismissal of Action for Failure or Refusal of Plaintiff to Obey Court Order, 4 A.L.R.2d 348; Waterman, An. Appellate Judge’s Approach when Reviewing District Court Sanctions Imposed for the Purpose of Insuring Compliance with Pretrial Orders. 29 F.R.D. 420 (1961) 3 Moore’s Federal Practice Para. 16.19 (2d Ed.).