Jerry Lee Birdsong and Dennis Birdsong, by and Through Their Guardian Ad Litem, Ora Mae Birdsong, and Ora Mae Birdsong, Appellants, v. United States of America, Appellee, 262 F.2d 105 (9th Cir. 1958)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 262 F.2d 105 (9th Cir. 1958)

December 17, 1958

Kaiser & O'Neil, Jeremiah F. O'Neill, Jr., Oakland, Cal., for appellants.

Robert H. Schnacke, U. S. Atty., Frederick J. Woelflen, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before POPE, HAMLIN and JERTBERG, Circuit Judges.


The District Court dismissed the above action pursuant to Rule 14 of the Rules of Practice of the United States District Court, Northern District of California, West's Ann.Code, for lack of prosecution. The Rule provides that the court may dismiss an action pending in which no steps have been taken for six months. It is undisputed that inaction by the plaintiffs extended over the prescribed period. The record discloses that the trial court carefully considered the affidavit of appellants setting forth the excuse for such inaction. The trial court concluded that good cause for lack of prosecution had not been established. The matter was again carefully considered by the trial court on the hearing on a motion by appellants to vacate and set aside the order previously made.

We are unable to find any abuse by the trial court of the discretion vested in it. The order of the trial court is affirmed. Boling v. U. S., 9 Cir., 1940, 231 F.2d 926; Boudreau v. U. S., 9 Cir., 1957, 250 F.2d 209.