The keynote of our review is the proposition that dismissal is a matter left to the sound discretion of the District Court. E. g., Slavitt v. Meader, 107 U.S.App.D.C. 396, 397, 278 F.2d 276, 277 (per curiam), cert. denied, 364 U.S. 831, 81 S.Ct. 70, 5 L.Ed.2d 57 (1960); Ali v. A G Co., 542 F.2d 595, 596 (2d Cir. 1976); Marshall v. Sielaff, 492 F.2d 917, 918 (3d Cir. 1974); Connolly v. Papachristid Shipping, Ltd., 504 F.2d 917, 920 (5th Cir. 1974); Beshear v. Weinzapfel, 474 F.2d 127, 130 (7th Cir. 1973); Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 (8th Cir. 1976); Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 947-948 (9th Cir. 1976); Stanley v. Continental Oil Co., 536 F.2d 914, 917 (10th Cir. 1976). 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).
It would require a much clearer expression of purpose than Rule 41(b) provides for us to assume that it was intended to abrogate so well-acknowledged a proposition. E. g., Cage v. Cage, 74 F.2d 377; Carnegie National Bank v. City of Wolf Point, 110 F.2d 569; Hicks v. Bekins Moving Storage Co., 115 F.2d 406; Zielinski v. United States, 120 F.2d 792; American National Bank Trust Co. v. United States, 142 F.2d 571; Shotkin v. Westinghouse Elec. Mfg. Co., 169 F.2d 825; Slavitt v. Meader, 278 F.2d 276.See, e. g., Des Moines Union R. Co. v. District Court, 170 Iowa 568, 153 N.W. 217; Doughty v. Terminal R. Assn., 291 S.W.2d 119 (Mo.); Frytez v. Gruchacz, 125 N.J.L. 630, 17 A.2d 541; Reed v. First National Bank, 194 Or. 45, 241 P.2d 109; Moshannon National Bank v. Iron Mountain Ranch Co., 45 Wyo. 265, 18 P.2d 623; cf. Hartford Accident Indemnity Co. v. Sorrells, 50 Ariz. 90, 69 P.2d 240; Thompson v. Foote, 199 Ark. 474, 134 S.W.2d 11; Koon v. Barmettler, 134 Colo. 221, 301 P.2d 713.
This power derives from the need for courts "to manage their own affairs so as to achieve the orderly and expeditious disposition of cases," Link, 370 U.S. at 630-31, 82 S.Ct. at 1389, and extends beyond the powers enumerated in the Federal Rules of Civil Procedure. See Slavitt v. Meader, 278 F.2d 276, 277 (D.C. Cir. 1960), cert. denied, 364 U.S. 831, 81 S.Ct. 70, 5 L.Ed.2d 57 (1960). Although the above-cited cases primarily involve the power of courts to dismiss cases for lack of prosecution, this inherent power and the principles behind it also apply to these facts.
It is clear that the District Court has the "inherent power" to dismiss a case for want of prosecution. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Slavitt v. Meader, 107 U.S.App.D.C. 396, 278 F.2d 276 (1960); Dyotherm Corp. v. Turbo Machine Co., 392 F.2d 146 (3d Cir. 1968); Kenney v. California Tanker Co., 381 F.2d 775 (3d Cir. 1967), cert. denied, 390 U.S. 904, 88 S.Ct. 817, 19 L.Ed.2d 870 (1968). This power exists independent of the authority of the Federal Rules of Civil Procedure (Rule 41(b)) or any local rules of court (rule 13(a), supra note 1).
See also Rankin v. Shayne Bros., Inc., 108 U.S.App.D.C. 47, 280 F.2d 55 (1960). See Slavitt v. Meader, 107 U.S.App.D.C. 396, 278 F.2d 276 (1960). The order of January 9, 1967, awarding a commission for interrogatories to Henry Maung, stated that it was premised in part upon "good cause shown as to due diligence in attempts to locate said witness. * * *" The substitutionary order of January 11 continued the case and permitted appellants to take Maung's deposition.
Had such findings been made, the question would have been whether the District Judge exceeded the bounds of sound discretion in exercising the inherent power of the court to dismiss an action for lack of prosecution. See Slavitt v. Meader, 107 U.S.App.D.C. 396, 397, 278 F.2d 276, 277, cert. denied, 364 U.S. 831, 81 S.Ct. 70, 5 L.Ed.2d 57 (1960). Here the case was automatically terminated by the operation of Rule 13, the Clerk merely making an "entry of that fact."
Cases are legion that in the absence of a clear abuse of discretion the lower court's dismissal of an action for failure to prosecute will not be reversed by a Court of Appeals. See, e.g., Slavitt v. Meader, 1960, 107 U.S.App.D.C. 396, 278 F.2d 276, 277; Darlington v. Studebaker-Packard Corp., 7 Cir., 1959, 261 F.2d 903, 905, certiorari denied 1959, 359 U.S. 992, 79 S.Ct. 1121, 3 L.Ed.2d 980; Edmond v. Moore-McCormack Lines, 2 Cir., 1958, 253 F.2d 143, 144, certiorari denied 1958, 358 U.S. 848, 79 S.Ct. 73, 3 L.Ed.2d 82; Boudreau v. United States, supra, 250 F.2d at page 211; Boling v. United States, 9 Cir., 1956, 231 F.2d 926, 927; Hicks v. Bekins Moving Storage Co., 9 Cir., 1940, 115 F.2d 406, 409. In light of the overall long delay, and delay between orders, Judge Ryan's dismissal order would appear to be justified, and it certainly cannot be characterized as an abuse of discretion.
On this appeal our question is whether in dismissing the action the court abused its discretion. Slavitt v. Meader, 107 U.S.App.D.C. 396, 278 F.2d 276, and cases there cited. We think the court erred in the special circumstances of the case.
Link v. Wabash R.R. 370 U.S. 626, 630-631. Shotkin v. Westinghouse Elec. Mfg. Co. 169 F.2d 825, 826 (10th Cir.). Slavitt v. Meader, 278 F.2d 276, 277 (Ct. App. D.C.). Kenney v. California Tanker Co. 381 F.2d 775, 777 (3d Cir.), cert. den. 390 U.S. 904. In view of our holding that the parties had lost their right to require the Superior Court to enter a decree after rescript, we do not reach the question whether that final decree entered on February 23, 1968, complies with our rescript of June 8, 1956. That final decree is vacated.
Additionally, in reviewing dismissals, even after reinstatement, a reviewing court looks to the whole course of litigation, not just that portion after the reinstatement. See Pearson v. Dennison (9th Cir. 1965), 353 F.2d 24; Slavitt v. Meader (1960), 107 U.S. App.D.C. 396, 278 F.2d 276. We now consider the dismissal of the case against the defendant Rudder.