                             District of Columbia
                              Court of Appeals
No. 13-CV-1040
                                                                        JUN 30 2016
SARAH LANDISE,
                                                  Appellant,

     v.                                                          CAB-2456-92

THOMAS MAURO,
                                                  Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                   Civil Division

         BEFORE:    THOMPSON and BECKWITH, Associate Judges; and KING, Senior
Judge.

                                     JUDGMENT

                 This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby

               ORDERED and ADJUDGED that the trial court’s decision is reversed, and
the case is remanded for proceedings consistent with this opinion.



                                           For the Court:




Dated: June 30, 2016.

Opinion by Associate Judge Corinne Beckwith.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 13-CV-1040
                                                                     6/30/16
                           SARAH LANDISE, APPELLANT,

                                         V.

                           THOMAS MAURO, APPELLEE.

                          Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB-2456-92)

                      (Hon. Michael L. Rankin, Trial Judge)
                     (Hon. William M. Jackson, Trial Judge)

(Argued April 23, 2015                                     Decided June 30, 2016)

      John F. Karl, Jr. for appellant.

      John Vail, with whom Ferris R. Bond and M. Azhar Khan were on the brief,
for appellee.

       Eugene A. Adams, Interim Attorney General at the time the briefs were filed,
with whom Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor
General, and Donna M. Murasky, Senior Assistant Attorney General, were on the
brief for amicus curiae, the District of Columbia, in support of appellee.

      Before THOMPSON and BECKWITH, Associate Judges, and KING, Senior
Judge.

      BECKWITH, Associate Judge: After the second trial held in this matter, a jury
                                         2


sided with appellant Sarah Landise and against appellee Thomas Mauro, finding

that the two had entered into a partnership to practice law in the District of

Columbia, that Ms. Landise was entitled to fifty percent of the partnership’s profits

and losses, and that Mr. Mauro breached his fiduciary duties by converting

partnership funds. Because the trial court decided that the case was sufficiently

complex to merit bifurcation, the court limited the jury to the question of liability

and ordered an accounting to determine the damages. Even though the court

appointed a special master to conduct a final accounting of the partnership funds in

June 2003, that accounting never happened.             A string of conflicts and

misunderstandings between the parties got in the way of the accounting, and each

party blames the other for this failure. The case languished for over a decade

before the trial court granted Mr. Mauro’s Motion To Dismiss for Failure To

Prosecute in August 2013.


      Ms. Landise makes three main arguments on appeal: first, she argues that

the trial court erred in taking the calculation of damages away from the jury,

contending that the judge’s decision to order an accounting ran afoul both of

District of Columbia partnership law and the Seventh Amendment’s right to a jury

trial; second, Ms. Landise attacks the constitutionality of D.C. Code § 15-703

(2012 Repl.), which is a provision that allows a defendant to require a nonresident

plaintiff to post security to cover potential court costs; and, third, Ms. Landise
                                          3


argues that it was an abuse of discretion for the trial court to attribute the long

delay in the accounting process to Ms. Landise’s failure to prosecute her case in a

diligent fashion.


      We reject Ms. Landise’s first two arguments, but accept her third. In our

view, the fact that the accounting never came to fruition appears to be the product

of an unclear trial court order, rather than any tactical delay on Ms. Landise’s part.

The trial court’s order appointing the master did not meet the requirements of

Super. Ct. Civ. R. 53 (b), which is entitled “Order appointing master” and specifies

information that such an order must include. The purpose of Rule 53 (b) is to

eliminate precisely the confusion that resulted in this case. We therefore reverse

the trial court’s ruling and remand the matter for the trial court to appoint a special

master in accordance with the requirements of that rule.


                                          I.


      This case began in 1992, when Sarah Landise brought suit against Thomas

Mauro, alleging breach of an oral partnership agreement, conversion of partnership

funds, and breach of fiduciary duty. The complaint alleged that Ms. Landise and

Mr. Mauro had formed a law partnership in the District of Columbia, and the

complaint requested an accounting of the partnership’s assets. A jury trial was

held, at which Mr. Mauro argued that there was no such partnership, and that there
                                            4


could be no partnership because Ms. Landise was not licensed to practice law in

the District. See Landise v. Mauro (Landise I), 725 A.2d 445, 445–47 (D.C.

1998). The jury at the first trial sided with Mr. Mauro, finding that Ms. Landise

and Mr. Mauro had not entered into an oral partnership agreement, and that Ms.

Landise had engaged in the unauthorized practice of law in the District of

Columbia. Id. at 446.


      A division of this court reversed and remanded for a new trial. Id. at 446–

47. The Landise I court clarified that Ms. Landise’s lack of a license to practice

law in the District (Ms. Landise was licensed only in Virginia) did not preclude her

claim for breach of partnership against Mr. Mauro, and the court held that—

because the evidence of partnership was “overwhelming”—the jury’s confusion

about the legal consequences of Ms. Landise’s unauthorized practice might have

infected the jury’s verdict. Landise I, 725 A.2d at 446–47, 454. After this court

remanded for a new trial, Mr. Mauro moved to require Ms. Landise to post security

costs pursuant to D.C. Code § 15-703, a little-used provision of the D.C. Code that

allows a defendant to require a nonresident plaintiff to “give security for costs and

charges that may be adjudged against him on the final disposition of the cause.”

Judge Wendell P. Gardner, Jr., directed Ms. Landise to post security for the costs

and fees of the litigation, and Ms. Landise complied, depositing $3,139.33 with the

Clerk of the Superior Court in July 1999.
                                          5


      A second jury trial was held, before Judge William M. Jackson, in July

2000. This time it was Mr. Mauro who requested an accounting, while Ms.

Landise took the position that the amount of damages was not overly complicated

and could be determined by the jury. While Ms. Landise identified eight payments

totaling $444,190.33 by Mauro & Landise clients that, she claimed, Mr. Mauro

deposited into his personal bank account, Mr. Mauro argued that the alleged

partnership actually had more than eighty open cases, and so any calculation of

damages would be sufficiently complex to require an accounting.


      Judge Jackson agreed with Mr. Mauro about the complexity of the damages.

As a result, the trial court restricted the jury’s consideration to six liability

questions on a Special Verdict Form. The jury found for Ms. Landise, concluding

that there was a partnership, that Ms. Landise was entitled to fifty percent of profits

and losses, and that Mr. Mauro had breached his fiduciary duties. Judge Jackson

did not let the jury compute damages or consider punitive damages, but directed

counsel to select an auditor to conduct the accounting to determine the damages.

Ms. Landise continued to argue that no accounting was necessary and filed a

motion for entry of final judgment, which was denied by Judge Michael L.

Rankin—who had taken over the matter—on February 23, 2001. The denial was

“without prejudice to the filing of such an order following an accounting.”
                                         6


      On June 10, 2003, Judge Rankin appointed Anita Isaacson as special master

to conduct an accounting. The Order Appointing Special Master was a sparse one-

page document “appoint[ing] [Ms. Isaacson] as special master to this case for the

purpose of conducting a final accounting of the partnership funds”; it did not make

any findings or mention the requirements of Super. Ct. Civ. R. 53, entitled

“Masters.”


      In 2004, after having appointed the special master, Judge Rankin granted

Mr. Mauro’s motion to increase the amount of the bond that Ms. Landise was

required to pay as a nonresident plaintiff under D.C. Code § 15-703. Ms. Landise

deposited an additional $5,000 into the Superior Court registry and then appealed

the order to this court. See Landise v. Mauro (Landise II), 927 A.2d 1026 (D.C.

2007). The Landise II court dismissed that appeal, finding that the court lacked

jurisdiction over the order directing Ms. Landise to pay an additional $5,000

because it was not a final trial court order. See id. at 1027–28. The court’s opinion

in Landise II acknowledged that Mr. Mauro’s motion seeking an increased bond

stemmed from a dispute between the parties regarding the costs and

implementation of the accounting that Judge Rankin had ordered:

             At some point, a dispute arose between the parties
             regarding the costs of the accounting. Mauro claimed
             that Landise was refusing to pay her share of the costs
             related to copying and scanning certain documents, and
             Landise alleged that Mauro had disregarded an
                                          7


             agreement that the copying be done in a particular
             fashion. As a result of this dispute, Mauro filed a motion
             to increase the security for costs pursuant to D.C. Code §
             15–703(b), requesting that the trial court order Landise to
             pay an additional $25,000 into the court registry. In his
             motion, Mauro represented that “[t]he cost in this
             accounting process is expected to increase substantially,
             therefore the security must be increased.” In opposing
             the motion, Landise argued that she should not be
             required to post an additional bond because she “won at
             trial and a money judgment will be entered into [sic] her
             favor.” In response to Mauro’s motion, the trial court
             ordered Landise to deposit an additional $5,000 into the
             court registry as security for costs related to the
             accounting process. Landise complied[.]

Id. at 1028–29.


      The same issues that delayed the full accounting before Landise II

continued, and the accounting that was ordered never happened.             Each party

blames the other for this failure: Ms. Landise argues that Mr. “Mauro took no

action after the second remand to obtain the accounting he claimed he sought,”

while Mr. Mauro argues that it was Ms. Landise who failed to prosecute her case.

On April 4, 2013, at the request of Ms. Landise, a status conference was held

before Judge Rankin. At that status conference, Mr. Mauro made a Motion To

Dismiss the Case for Failure To Prosecute, which the trial court set for a hearing.


      The hearing on Mr. Mauro’s motion took place on August 20, 2013. The

hearing transcript reveals that the same confusion persisted, with counsel for Mr.
                                         8


Mauro claiming that Ms. Landise and her counsel had “done everything in their

power to obstruct going forward with the accounting,” while counsel for Ms.

Landise explained that he had been “waiting to hear from the Defendant [and his

counsel because] they’re the ones that wanted the accounting” in the first place.

After hearing argument, Judge Rankin granted Mr. Mauro’s motion to dismiss,

because Judge Rankin was convinced that too much time had passed and that the

delay should be held against Ms. Landise as the plaintiff. Judge Rankin explained:

            I’ve always viewed—whenever I sit in Civil, I’ve always
            viewed the Plaintiff to have the—the responsibility, if
            you will, the burden of pressing a case. You know, if a
            Plaintiff sits around after filing a complaint and says, I’m
            waiting for the Defendant [to] do something, that just
            never sounds right in my ears.

            ....

            I don’t see the fairness in—at this stage of the process in
            trying to determine an accounting now that would come
            out with any reliable evidence. How do you go back and
            reconstruct to 1989 in 2013?

            ....

            I’m going to bite the bullet in this case. I’m going to
            grant the Defendant’s Motion to Dismiss, based on my
            conclusion that the Plaintiff has not pressed this matter in
            a timely fashion to the detriment of the Defense and to
            the great—the substantial likelihood of an unfair result, if
            we were to go forward trying to reconstruct what assets
            were in 1989 and what happened afterward. Motion to
            Dismiss is granted.
                                          9


This appeal followed.


                                         II.


      A. Decision To Appoint a Special Master To Conduct an Accounting


      Ms. Landise first challenges the trial court’s decision to appoint a special

master instead of allowing the jury to determine both liability and damages. She

contends that this decision violated both District of Columbia partnership law and

the Seventh Amendment’s right to a jury trial.


      Super. Ct. Civ. R. 53 (a) provides that “the court may appoint a master . . . if

appointment is warranted by . . . the need to perform an accounting or resolve a

difficult computation of damages,” and the District of Columbia “has long

followed the traditional rule that ordinarily a partner may not sue a co-partner in an

action at law with respect to partnership transactions until an accounting in equity,

a settlement, or a promise to pay has been obtained.” Beckman v. Farmer, 579

A.2d 618, 649 (D.C. 1990). We generally review the trial court’s decision to

appoint a master for abuse of discretion, but the Supreme Court has instructed that

appellate courts must be especially vigilant when Seventh Amendment rights are at

stake. See Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477–78 (1962) (explaining

that “[t]he necessary prerequisite to the right to maintain a suit for an equitable

accounting [is] . . . the absence of an adequate remedy at law,” and that “to
                                          10


maintain such a suit on a cause of action cognizable at law . . . the plaintiff must be

able to show that the ‘accounts between the parties’ are of such a ‘complicated

nature’ that only a court of equity can satisfactorily unravel them” (quoting Kirby

v. Lake Shore & M.S.R. Co., 120 U.S. 130, 134 (1887))).


      In this case, Judge Jackson’s decision to order an accounting did not run

afoul of District of Columbia partnership law or the Seventh Amendment. Judge

Jackson ordered an accounting because he decided that the question of damages

was too complicated for the jury:

             I am of the view that it is not a violation of the Seventh
             Amendment to have a bifurcated trial . . . That is if there
             is a—if the jury finds that there was a partnership, then
             there are significant issues raised as to the issue of
             damages concerning expenses, and liabilities of the
             partnership during any winding up process and as to
             what, if anything, the plaintiff was due and owing by
             virtue of the partnership. I think that is too—would be
             too confusing and the jury would ultimately on this
             evidence would have to speculate as to what those
             damages were, that there—whatever figure they came up
             with.

      Renewing arguments she made in the trial court, Ms. Landise contends that

because she is choosing to pursue revenues from only eight Mauro & Landise case

files, that subset of revenue is all that is at issue in this case. As Mr. Mauro points

out, however, the jury found that Ms. Landise is entitled to fifty percent of the

partnership’s profits and losses, and it also found the date on which the partnership
                                         11


dissolved.   Moreover, Judge Jackson properly determined that the damages

calculation in this case—taking into account all of the money flowing into and out

of the partnership, which, according to Ms. Landise’s testimony at trial, had

approximately 80 open cases at the time of dissolution—satisfies the criteria that

justify an accounting under District of Columbia partnership law as set forth in

cases like Beckman v. Farmer, 579 A.2d 618.


      In Beckman, this court discussed at length the history, rationale, and limited

exceptions to the general rule that a partnership action proceeds to an equitable

accounting. Id. at 649–50. The Beckman court explained that the rule at bottom

“serves a function arising from characteristics of the partnership relation”—

simplifying what is often a complicated balance sheet.        Id. at 649.   Because

“partners hold partnership property in undivided interests . . . [t]he value of

partners’ respective interests can[] be determined . . . only after partnership

liabilities are satisfied, all assets are marshalled, the partners’ capital accounts

adjusted, and the amount of any surplus ascertained.” Id. at 649–50. But this

“general rule is subject to several exceptions reflecting its basic rationale,” as an

accounting may not prove necessary if, for example, the partnership’s business

“involves a single completed transaction or only one or a few items, and no

complicated accounts are involved such that no accounting or appraisal is

necessary to fix the amount due the plaintiff.” Id. at 650.
                                          12


      Explicitly invoking Beckman, Judge Jackson concluded that none of the

exceptions applied here because the damages in this matter were sufficiently

complex to merit an accounting. He noted in particular that Ms. Landise was

entitled to her rightful share of the partnership’s total assets.1 We discern no error

in the trial court’s reasoning or in its application of Beckman.


      Ms. Landise alternatively argues that “this court should follow the trend of

the law . . . and abolish or limit the accounting requirement for simple cases like

this.” We reject this invitation to change the District’s partnership law. While Ms.

Landise correctly identifies a trend in the law away from rote reliance on the

accounting remedy,2 this jurisdiction’s partnership law already reflects that trend in


      1
          Ms. Landise also argues that the trial court erred in refusing to submit to
the jury the issue of punitive damages. As the court recognized, while the conduct
that forms the basis of Ms. Landise’s claim—including Mr. Mauro’s denial of the
partnership’s existence and his efforts to retain partnership profits—represents
proof of Mr. Mauro’s substantive liability, it does not amount to “outrageous
conduct which is malicious, wanton, reckless, or in willful disregard for another’s
rights.” Tolson v. District of Columbia, 860 A.2d 336, 345 (D.C. 2004) (quoting
Chatman v. Lawlor, 831 A.2d 395, 400 (D.C. 2003)). We accordingly find no
error in the trial court’s determination that there was no evidence from which a
jury could reasonably find that Mr. Mauro evinced the required mental state and
egregious conduct necessary to support a punitive damages award.
      2
         More specifically, Ms. Landise cites a treatise—on which the Beckman
court also relied—for the propositions that “[i]n general, the proliferation of
exceptions to the exclusivity rule [that an equitable accounting serves as a partner’s
exclusive remedy in a partnership action] indicates some judicial hostility to the
accounting remedy,” and that “courts are increasingly taking the approach that
                                                                       (continued…)
                                        13


cases such as Beckman. Beckman does not suggest that an accounting is required

in every case; rather, the court recognized certain exceptions, and in doing so

fashioned a rule under which an accounting is necessary only where—as here—the

circumstances are properly deemed to require it. 579 A.2d at 649–50.


      Ms. Landise’s Seventh Amendment claim runs into similar problems. As

she suggests, the Seventh Amendment does limit a trial court’s ability to take

factual issues away from a jury. But Dairy Queen and Beckman make clear that

ordering an accounting—instead of permitting the jury to wade through the

partnership’s financials—does not violate the Seventh Amendment when “the

‘accounts between the parties’ are of such a ‘complicated nature’ that only a court

of equity can satisfactorily unravel them.” See Dairy Queen, 369 U.S. at 478

(citation omitted); Beckman, 579 A.2d at 649–50. As discussed above, we do not

second-guess Judge Jackson’s finding in this regard.


      Nor do we agree with Ms. Landise that Judge Jackson’s decision to order an

accounting violated the Seventh Amendment’s Reexamination Clause, which

generally prevents the relitigation of facts found by a jury. See Gasoline Prods.


(…continued)
plaintiff will not be denied relief unless an accounting is really necessary in the
given case.” 2 Alan R. Bromberg & Larry E. Ribstein, Bromberg and Ribstein on
Partnership § 6.08 (c), at 6:205 (Supp. 2013).
                                         14


Co. v. Champlin Refining Co., 283 U.S. 494, 497–500 (1931). Ms. Landise’s

argument rests on her contention that this case involves only the eight case files

she identified.   “The Order Appointing Special Master,” she asserts, “almost

guarantees that the facts found by the jury would be reexamined.” Ms. Landise

emphasizes that while the jury “was not asked to award damages, the necessary

implication of the jury’s responses on its verdict form was that [she] was entitled to

one-half the partnership earnings which the jury was told consisted of eight cases

resulting in deposits made to Mauro’s checking account.” But the jury’s verdict

form reveals only that the jury found that a partnership existed, that Mr. Mauro

breached his duties to the partnership, that the partnership dissolved on a certain

date, and that Ms. Landise was entitled to fifty percent of the partnership’s profits

and losses. These findings do not imply that the correct amount of damages is the

sum total of the client files that were discussed at trial. That discussion formed the

basis of the jury’s liability finding, but damages presents a different question.

Because the jury never determined damages, the court’s order does not amount to a

reexamination of the jury findings in violation of the Seventh Amendment.


      B. The Constitutionality of D.C. Code § 15-703


      In her second main argument, Ms. Landise contends that D.C. Code § 15-

703 is unconstitutional because it discriminates against her in violation of the
                                        15


Privileges and Immunities Clause of Article IV, Section 2 of the Constitution, or,

alternatively, in violation of the Privileges and Immunities Clause of the

Fourteenth Amendment. Both clauses prevent states from discriminating against

citizens of other states, and the Privileges and Immunities Clause analysis has been

described in the following terms:

            As a general rule, Privileges and Immunities Clause
            analysis requires us to consider (1) whether a State has,
            in fact, discriminated against out-of-staters with regard to
            the privileges and immunities it accords its own citizens,
            and (2) if so, whether there is sufficient justification for
            the discrimination. A “sufficient justification” can be
            shown by a State demonstrating (a) a substantial reason
            for the discrimination, and (b) a reasonable relationship
            between the degree of discrimination exacted and the
            danger sought to be averted by enactment of the
            discriminatory statute. The availability of less restrictive
            means is considered when evaluating the measure and
            degree of the relationship between the discrimination and
            state interest.

Connecticut ex rel. Blumenthal v. Crotty, 346 F.3d 84, 94 (2d Cir. 2003) (citations

omitted). In an amicus brief supporting the constitutionality of the statute, the

District contends that neither clause limits acts of Congress—the legislature that

enacted the law at issue—and that, in any event, requiring nonresident but not

resident plaintiffs to post security as a condition of moving forward with an action

in the District of Columbia courts does not offend the Constitution. We agree with

the District that D.C. Code § 15-703 would not violate the Privileges and

Immunities Clause, and so we can assume without deciding that the Privileges and
                                         16


Immunities Clause applies to Congress when it legislates for the District of

Columbia.3


      Congress enacted the statute at issue at least as early as 1901, when it passed

a comprehensive “Act to establish a code of law for the District of Columbia.”
      3
          In arguing that the Privileges and Immunities Clause of Article IV does
not apply, the District relies on Duehay v. Acacia Mutual Life Ins. Co. for the
proposition that the clause “is inapplicable to the District of Columbia [because it]
is a limitation upon the powers of the states and in no way affects the powers of
Congress over the territories and the District of Columbia.” 105 F.2d 768, 775
(D.C. Cir. 1939). The District also cites approvingly Justice Harlan’s dissent in
Shapiro v. Thompson, where he wrote that “it appears settled” that the Privileges
and Immunities Clause does not “limit[] federal power” and that, since “Congress
enacted the District of Columbia residence statute” at issue in Shapiro, “the clause
can have no application” in that case. 394 U.S. 618, 666–67 (Harlan, J.,
dissenting). In reply, Ms. Landise cites an opinion from this court suggesting that
the Privileges and Immunities Clause applies to the District. See Davis v. District
of Columbia Dep’t of Consumer & Regulatory Affairs, 561 A.2d 169, 171 (D.C.
1989). As the District points out, however, Davis did not involve an act of
Congress, there was no indication that the District of Columbia raised the argument
that the clause was inapplicable, and, in any event, the court in Davis would not be
able to overrule the binding authority of Duehay.

       As for the applicability of the Privileges and Immunities Clause of the
Fourteenth Amendment, the question is more clear-cut because the Fourteenth
Amendment expressly applies only to the states, not to the United States or the
District of Columbia. See Neild v. District of Columbia, 110 F.2d 246, 256 (D.C.
Cir. 1940) (stating that “[t]he Fourteenth Amendment is not applicable in the
District of Columbia”). Ms. Landise cites no authority for her assertion that the
Fourteenth Amendment’s Privileges and Immunities Clause applies in the District
of Columbia through the Due Process Clause of the Fifth Amendment. But see
Smith v. United States, 460 A.2d 576, 578 n.3 (D.C. 1983) (noting that while the
Fourteenth Amendment “does not apply to the District of Columbia (being
applicable only to the states), the [F]ifth [A]mendment due process clause contains
equal protection principles”).
                                         17


Section 175 of the statute provided:

             The defendant in any suit instituted by a nonresident of
             the District of Columbia, or by one who becomes such
             after the suit is commenced, may, upon notice served on
             the plaintiff or his attorney, at any time after service of
             process on the defendant, require the plaintiff to give
             security for all costs and charges that may be adjudged
             against him on the final disposition of the cause.

Act of Mar. 3, 1901, ch. 854, § 175, 31 Stat. 1189, 1219. The language of D.C.

Code § 15-703 (a) remains substantially the same today. Despite the provision’s

vintage, it has rarely been invoked. Ms. Landise argues that her equal right to

access the District of Columbia courts is fundamental, and while she acknowledges

that the requirement that nonresident plaintiffs post a bond might have made sense

around the turn of the twentieth century—when there was no global economy,

travel was limited, and enforcing a judgment in a foreign state was difficult—she

contends that the requirement can no longer be justified in the modern era when

“judgments can be enforced almost as easily in another state as in the home state.”


      Whether or not D.C. Code § 15-703 (a) is less justified now than it may have

been in the past, we are unwilling to declare the provision unconstitutional, on its

face or as applied, for two major reasons. First, the District’s nonresident security

statute is very similar to laws that the Supreme Court has long upheld.           In

Canadian Northern Railway Co. v. Eggen, 252 U.S. 553 (1920), for example, the

Court explained:
                                          18


             From very early in our history, requirements have been
             imposed upon nonresidents in many, perhaps in all, of the
             states as a condition of resorting to their courts, which
             have not been imposed upon resident citizens. For
             instance, security for costs has very generally been
             required of a nonresident, but not of a resident citizen
             . . . . This court has said . . . [that s]uch a regulation of
             the internal affairs of a state cannot reasonably be
             characterized as hostile to the fundamental rights of
             citizens of other states . . . . The principle on which this
             holding rests is that the constitutional requirement
             [expressed in the Privileges and Immunities Clause] is
             satisfied if the nonresident is given access to the courts of
             the state upon terms which in themselves are reasonable
             and adequate for the enforcing of any rights he may have,
             even though they may not be technically and precisely
             the same in extent as those accorded to resident citizens.

Id. at 561–62 (internal quotation marks and citations omitted). The Supreme Court

also upheld a substantially similar statute the following year in Ownbey v. Morgan,

256 U.S. 94 (1921).


      Second, we are satisfied that the justification the District advances for the

law—“to discourage non-meritorious suits by nonresidents and to avoid a situation

in which a successful defendant, usually a District resident, is compelled to file suit

in a foreign jurisdiction in order to collect costs awarded him here”—represents, as

it must, a “substantial reason for the difference in treatment” between resident and

nonresident plaintiffs, and that the discrimination “bears a substantial relationship

to” the statute’s goals. See Supreme Court of New Hampshire v. Piper, 470 U.S.

274, 284 (1985). This conclusion is only strengthened when we consider that the
                                         19


requirement to post security for costs imposes a relatively minor hardship,

especially when compared to the hardships in the cases on which Ms. Landise

relies. See Crotty, 346 F.3d at 93–97 (striking down New York’s “Nonresident

Lobster law” because it was deemed to impinge on the ability of nonresident

commercial lobstermen to pursue their livelihood); Morris v. Crown Equip. Corp.,

219 W. Va. 347, 355 (2006) (holding that the Privileges and Immunities Clause is

violated when a state, in certain circumstances, closes off its courts to citizens of

other states who are seeking to sue local residents).


      C. Motion To Dismiss for Failure To Prosecute


      Finally, Ms. Landise argues that Judge Rankin abused his discretion in

granting Mr. Mauro’s Motion To Dismiss for Failure To Prosecute. Finding merit

to this claim, we reverse the trial court’s ruling and remand for the trial court to

appoint a special master in accordance with the procedures set forth in Rule 53.


      Super. Ct. Civ. R. 41 (b) provides in relevant part that “[f]or failure of the

plaintiff to prosecute or to comply with these Rules or any order of Court, a

defendant may move for dismissal of an action or of any claim against the

defendant.” This court has explained that “a dismissal for failure to prosecute

‘generally rests within the broad discretion of the trial judge, to be disturbed only

in case of obvious abuse.’” Dobbs v. Providence Hosp., 736 A.2d 216, 219–20
                                        20


(D.C. 1999) (quoting Taylor v. Washington Hosp. Ctr., 407 A.2d 585, 590 (D.C.

1979), cert. denied, 446 U.S. 921 (1980)). At the same time, we have recognized

that dismissal under Rule 41 (b) is “an extreme sanction which should be granted

only sparingly or in extraordinary circumstances”:

            Among the factors which the trial court should consider
            are: (1) the nature of the party’s conduct, including
            whether it was willful; (2) the length of any delay in
            complying with the court’s order; (3) the reasons for the
            delay; and (4) any prejudice to the opposing party.
            Dismissal should not be imposed where the failure of a
            party to comply with the order is inadvertent or
            excusable.

District of Columbia v. Serafin, 617 A.2d 516, 519 (D.C. 1992) (citations omitted);

see also Dobbs, 736 A.2d at 220 (characterizing dismissal under Rule 41 (b) as “a

sanction that should be used with caution”).


      In this case, the trial court abused its discretion in granting Mr. Mauro’s

Rule 41 (b) motion and sanctioning Ms. Landise for the long delay in obtaining an

accounting. The transcript of the August 20, 2013, hearing—during which Judge

Rankin dismissed the case—reveals that the parties and the court were confused

about how the accounting was supposed to proceed. The parties agreed that Ms.

Isaacson had been appointed master, but that for some reason Ms. Isaacson left the

case and “[n]othing became of that.” The parties’ arguments on appeal reflect this

continuing confusion over who was responsible for moving forward with the
                                        21


accounting. Mr. Mauro claims that “[f]actually, Ms. Landise was under order to

secure an accounting,” whereas Ms. Landise asserts that she did not believe she

had a duty to act because it was Mr. Mauro who sought the accounting in the first

place. While Judge Rankin appeared to accept Mr. Mauro’s view that Ms. Landise

“was under order to secure an accounting,” that position does not find support in

the record. The Order Appointing Special Master simply appoints a special master

“for the purpose of conducting a final accounting of the partnership funds.” The

order does not assign any special responsibilities to Ms. Landise or compel her to

act in any way. If anything, the order suggests that Ms. Isaacson—and not Ms.

Landise or Mr. Mauro—was being charged with overseeing the accounting

because she was “independent of either party.”


      Judge Rankin’s primary basis for dismissing the case was Ms. Landise’s

failure to prosecute the matter with the due diligence required of any plaintiff

bringing a lawsuit. Yet while a plaintiff’s delay in pressing her action can and

should result in dismissal in some cases, see, e.g., Ripalda v. American Operations

Corp., 673 A.2d 659, 663 (D.C. 1996), this is not such a case. Rather than being

attributable to any dilatory conduct on Ms. Landise’s part, the delay in this case

appears to have stemmed from the trial court’s incomplete application of the rule

governing orders appointing a special master.
                                         22


      Rule 53 (b), which is entitled “Order appointing master,” provides:

             The order appointing a master must direct the master to
             proceed with all reasonable diligence and must state:

             (A) the master’s duties, including any investigation or
             enforcement duties, and any limits on the master’s
             authority under Rule 53(c);

             (B) the circumstances—if any—in which the master may
             communicate ex parte with the court or a party;

             (C) the nature of the materials to be preserved and filed
             as the record of the master’s activities;

             (D) the time limits, method of filing the record, other
             procedures, and standards for reviewing the master’s
             orders, findings, and recommendations; and

             (E) the basis, terms, and procedure for fixing the master’s
             compensation under Rule 53(h).

Super. Ct. Civ. R. 53 (b)(2)(A)–(E). The trial court’s Order Appointing Special

Master did not comply with the strictures of Rule 53. In the absence of the clear

guidance that a proper order would have provided, the parties here lacked a basis

for determining the next steps in conducting the accounting, and the resulting

uncertainty and confusion delayed what should have been a prompt and efficient

process.4 Under these circumstances, and in light of the factors the court identified


      4
         While it is true that Ms. Landise did not object to the defective order, the
nature of her conduct (a delay in moving forward with a remedy that Mr. Mauro
requested and she vigorously opposed) and the reason for the delay (confusion
                                                                      (continued…)
                                          23


in Serafin, the dismissal of Ms. Landise’s case for failure to prosecute constituted

an abuse of discretion. See Serafin, 617 A.2d at 519. We accordingly remand for

the trial court to issue an order that complies with Rule 53, including defining the

scope of the master’s powers, setting time limits for the process, and explaining

how the costs will be allocated among the parties.5 Such an order will ensure that

Ms. Landise receives the damages to which the jury concluded she was entitled in

this case.


      We are mindful, of course, that the partnership in this case dissolved many

years ago, and that the difficulty of rendering an accurate accounting in light of this

fact informed the trial judge’s decision to “bite the bullet” and dismiss the case.

But any questions concerning the feasibility of an accurate accounting—including

whether the surviving partnership documents provide the necessary information—


(…continued)
stemming from the court’s order) strongly support the conclusion that any failure
on Ms. Landise’s part to object under these circumstances should not serve as a
basis for denying her relief. Cf., e.g., Dobbs, 736 A.2d at 220 (dismissal for failure
to prosecute properly granted where appellant committed “a series of violations of
court orders and rules of procedure, despite express warnings and other sanctions
from the trial court”).
      5
         See Super. Ct. Civ. R. 53 (h)(4) (explaining that “the court must allocate
payment of the master’s compensation among the parties after considering the
nature and amount of the controversy, the means of the parties, and the extent to
which any party is more responsible than other parties for the reference to a
master”).
                                         24


are properly left to the special master in the course of performing her duties on

remand.6


                                        III.


      For the foregoing reasons, we reverse the trial court’s decision and remand

for proceedings consistent with this opinion.


                                                          So ordered.




      6
        Despite Mr. Mauro’s contention that a lost trial court file and five missing
witnesses (two of whom have died) would make any accounting impossible, it is
not obvious that an accounting of the Mauro & Landise partnership would require
witnesses or the trial court file. More generally, to the extent any important
materials have vanished, Mr. Mauro should bear the burden of explaining what
happened, as it appears uncontroverted that he possessed all of the relevant
documents at the beginning of this litigation.
