Judge (concurring specially):
Save for the peculiar circumstance of this case I would affirm the dismissal for plaintiff’s failure to prosecute. The excepting circumstance is that the hearing day of the motion was not fixed by the court but was simply noticed by adversary counsel. Otherwise, I think, we would be usurping the prerogative and discretion vested in the trial judge by Rule 41(b), as well as by the law generally, to dismiss for want of prosecution. While it was incumbent upon Bush’s attorney either to appear or explain why he could not, his default was not as serious as a disregard of the court’s order.
Had there been an order, I would unhesitatingly say, on the facts of this case, that the instant neglect would justify a dismissal for lack of prosecution. The operation of a court is acutely disrupted by an attorney’s inattention to his case, once it is on the docket. The gravity of it is recognized in the inherent authority of the court, as well as in Rule 41(b), to dismiss sua sponte and without previous notice of its intention. Link v. Wabash Railroad Co., 370 U.S. 626, 629, 632, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Nor need the court first find that the other party was prejudiced, for the law presumes injury. States Steamship Co. v. Philippine Air Lines, 426 F.2d 803, 804 (9 Cir. 1970).
If not deliberate, the conduct here of the plaintiff’s attorney was so unwarranted as to be equatable with an intentional ignoring of his obligations. The court rarely is directly in touch with the client; it must accept the latter’s representation that the attorney speaks and acts for him. Indeed, it has no other choice. Surely the client cannot complain if the court accepts this assurance, even to his detriment. Advancement of the present case and those following was severely hampered by the dereliction of the attorney.
Determination of whether an attorney’s conduct amounts to a failure to prosecute, I would leave to the trial judge. He is the best arbiter of the incidence of the behavior. The court is entrusted and charged with complete control of its docket and, unless it is allowed free rein to fulfill this responsibility, expedition of litigation cannot be expected. Kenney v. California Tanker Company, 381 F.2d 775, 777 (3 Cir. 1967), cert. denied, 390 U.S. 904, 88 S.Ct. 817, 19 L.Ed.2d 870.