Johnnie L. Hughley v. Eaton Corporation, Etc.

ORDER Before CELEBREZZE, LIVELY and EN-GEL, Circuit Judges. Plaintiffs appeal from an order of the district court dismissing their suit seeking *557 relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., for want of prosecution. It appears without dispute upon the record and by the affirmative representations of plaintiffs’ counsel at the oral argument upon appeal that plaintiffs’ counsel provoked the court to dismiss the action and further, that the failure to appear at the trial date was the result of a conscious choice by plaintiffs to suffer the consequence of dismissal rather than to proceed to trial in the posture of the case as it then stood. Under the circumstances the court determines that the trial court did not abuse its discretion in dismissing the suit in the district court without prejudice. It, therefore, follows that by the dismissal of the suit, any rulings which preceded that action by the trial court are thus rendered moot. In this regard the court declines to adopt either the rationale or the holding of Allied Air Freight, Inc. v. Pan American World Airways, Inc., 393 F.2d 441 (2d Cir.), cert. denied, 393 U.S. 846, 89 S.Ct. 131, 21 L.Ed.2d 117 (1968), and, on the contrary, holds that the sufferance of a dismissal of a cause without prejudice is not to be employed as an avenue for reaching issues which are not subject to interlocutory appeal as of right. Accordingly, IT IS ORDERED that the judgment of the district court is affirmed.