Unpublished Disposition, 937 F.2d 613 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 613 (9th Cir. 1990)

Morris A. SHENKER, Plaintiff-Appellant,andLeonard Komen, Real Party in Interest-Appellant,v.Loran W. ROBBINS, Earl L. Jennings, Jr., Marion M. Winstead,Harold J. Yates, Robert J. Baker, Howard McDougall, R.V.Pulliam, Sr., Robert E. Schlieve, Thomas F. O'Malley, asTrustees of the Central States, Southeast and SouthwestAreas Pension Fund, Defendants-AppelleesandRaymond J. Donovan, Secretary of Labor, Intervenor-Defendant.

No. 90-15670.

United States Court of Appeals, Ninth Circuit.

Submitted May 13, 1991.* Decided July 5, 1991.

Before CHAMBERS, GOODWIN and CANBY, Circuit Judges.


A trustee in bankruptcy, as personal representative of the decedent, appeals from an order dismissing the action for want of prosecution. We affirm. Link v. Wabash Railroad Co., 370 U.S. 626 (1962).

Morris A. Shenker commenced this action in 1980, seeking indemnity from trustees of a pension fund for money which he claimed he had been required to pay as the result of various transactions between himself and others involved in pension funds.

A pretrial order was filed on August 4, 1983, and the case was set for trial on December 6, 1983. On November 25, 1983, the case was removed from the trial calendar and a new date of May 1, 1984, was set for trial. Mr. Shenker meanwhile suffered substantial judgments in other litigation which apparently caused him to file for voluntary bankruptcy in St. Louis, Missouri.

An attorney representing Mr. Shenker suggested to the district court that until the bankruptcy court granted relief from the automatic stay, this action should be removed from the trial calendar. The district court removed the case from the calendar. Mr. Shenker did nothing to move it toward trial. In March of 1986, the district court scheduled a status conference, to which counsel for Mr. Shenker reported that "plaintiff intends to review this matter, to apply to the Bankruptcy Court for instructions and will keep this court advised."

Mr. Shenker died in 1989 without having taken any steps to move the case toward trial. On October 26, 1989, the pension fund defendants moved to dismiss under Fed. R. Civ. P. 41(b) for want of prosecution, and a few days later the Secretary of Labor moved to dismiss.

On January 2, 1990, the court substituted Leonard Komen, trustee in bankruptcy, for the decedent as party plaintiff. Thereafter, after studying briefs filed by the parties on the appropriateness of dismissal for want of prosecution, the court dismissed the action.

We have examined the files and find nothing since 1986 that would indicate any intention on the part of Mr. Shenker or his subsequent representatives to proceed with this litigation. No request appears to have been made in the Eastern District of Missouri for a bankruptcy court order granting relief from the stay so that this litigation could proceed if anyone had a good faith belief that it would benefit the bankruptcy estate to proceed. On the contrary, every document filed after the motion to dismiss appeared to rely upon the bankruptcy as an excuse to continue to stall.

The record reveals no reason for this court to conclude that the trial court abused its discretion in dismissing a moribund case. See Link, 370 U.S. at 629. Indeed, nothing appears in any of the papers filed in connection with this appeal to indicate that, if the case were restored to the docket, any serious effort would be made to proceed to trial.



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3