DiMercurio v. Malcom, No. 12-3766 (8th Cir. 2013)
Annotate this CasePlaintiff appealed the district court's dismissal with prejudice of his case under Federal Rule of Civil Procedure 41(b). Plaintiff contended that the district court abused its discretion by dismissing the "extreme sanction" of dismissing his case with prejudice where the record showed neither "intentional delays" nor "contumacious conduct" on his part. The court concluded, based on the circumstances, that the district court abused its discretion in denying the motion for continuance and therefore erred in dismissing the case with prejudice and denying the motion to reconsider. The record showed no evidence of why the district court could not have accommodated its schedule, defendant's schedule, and plaintiff's schedule in continuing the case to a later date and plaintiff had a good basis for a continuance.
Court Description: Civil Case - Rule 41(b) dismissals. After district court rescheduled trial, denied plaintiff's motion for continuance of retrial date, and denied motion for reconsideration, the district court dismissed the case with prejudice for failure to prosecute the appeal on the trial date. District court abused its discretion in denying the continuance and erred in dismissing the case with prejudice. The dismissal with prejudice is reversed and the case remanded. [ June 17, 2013
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