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449 F.2d 253

Docket No. 71-1711

Canada v. Mathews

Fifth Circuit Court of Appeals

Decided Sept. 22, 1971.

Fifth Circuit Court of Appeals · decided 1971-09-22

1 counsel of record

Key passage — most relied on by later courts

“[W]e have consistently held that a dismissal with prejudice is warranted only in extreme circumstances and only after the Trial Court, in the exercise of its unquestionable authority to control its own docket, has resorted to the wide range of lesser sanctions which it may impose upon the litigant or the derelict attorney, or both.”

quoted by 1 later decision, including Hildebrand v. Allegheny Cnty.

“Unless the court in its order for dismissal otherwise specifies ... any dismissal not provided for in this rule ... operates as an adjudication on the merits.”

quoted by 1 later decision, including Mm v. W Zavaras

Applies FL 48 § 48.161

Relies on Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York · Link v. Wabash Railroad · United States v. Radio Television News Directors Ass'n

Good law ✅— No negative treatment on recordhow we know

Opinion by (per_curiam) · Decided 1971-09-22

How this case has been cited

Cited by 19 later decisions — most recently April 2019

11 federal appellate · 2 state decisions

6019711980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Summary Calendar.*

¶2Arthur Roth, Miami, Fla., S. Eldridge Sampliner, Cleveland, Ohio, for plaintiff-appellant.

¶3Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

¶5PER CURIAM:

¶6Leslie Canada appeals from an order of the District Court dismissing with prejudice his Jones Act suit against El-vie and Buford Mathews, Glen Trimper and M. J. Seals. We vacate that order and remand for a dismissal without prejudice of the action against Mathews, *254Mathews and Trimper and for such further proceedings as may be appropriate in connection with the defendant Seals.

¶7Since none of the defendants were residents of the district in which the suit was filed, Canada’s attorney attempted to obtain service of process under the Florida “Long Arm” statutes1 by filing the requisite papers with the Florida Secretary of State and by mailing copies of the complaint, notice and summons to the defendants’ last-known address. Seals accepted service at his residence in Port Isabel, Texas but filed no pleadings and did not appear.2 None of the other defendants could be located, and the notice sent to them was returned in the mail undelivered.

¶8Counsel for Canada delayed filing an affidavit of compliance with the statute while continuing to look for the un-served defendants, and on February 26, 1971 the District Court entered an order stating that the action would be dismissed “unless plaintiff has obtained sufficient service of process upon the defendants by March 17, 1971.” Canada’s attorney responded on March 11 by filing with the Court an affidavit indicating that Seals had been served. On March 17 the Court dismissed the suit3 as to all defendants on the grounds that “plaintiff has not complied with the February 26th order.”

¶9With respect to defendant Seals, all we need hold is that the plaintiff apparently did comply with the Court’s order to obtain “sufficient service” and that dismissal as' to him was therefore erroneous. Even if a lack of due diligence is attributable to Canada’s counsel for having failed to serve the remaining defendants — and the circumstances do not suggest such fault — that failure cannot infect otherwise satisfactory compliance with the order to serve Seals. If a plaintiff succeeds in serving some defendants but fails to serve others, the appropriate course is for the Court to dismiss only those defendants who have not been served.4

¶10*255As for the unserved defendants, we have consistently held that a dismissal with prejudice is warranted only in extreme circumstances and only after the Trial Court, in the exercise of its unquestionable authority to control its own docket,5 has resorted to “the wide range of lesser sanctions which it may impose upon the litigant or the derelict attorney, or both.”6 The record here reveals only that the plaintiff’s attorney, after seeking in the manner prescribed by Florida law to obtain service against all defendants, was able to locate only one. We cannot conclude that simple inability to find the opposition constituted such a flagrant disobedience of the Court’s order as to justify the entry of what was in effect a final judgment on the merits.

¶11Vacated and remanded.

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