Filed: Jun. 16, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-10548 Date Filed: 06/16/2015 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10548 _ D.C. Docket No. 9:11-cv-80723-KLR RENEC ULYSSE, Plaintiff - Appellant, ALIX ACCIMEUS, et al., Plaintiffs, versus WASTE MANAGEMENT, INC. OF FLORIDA, Defendant - Appellee, EEOC, Defendant. _ Appeals from the United States District Court for the Southern District of Florida _ (June 16, 2015) Case: 14-10548 Date Filed: 06/16/2015 Page: 2 of 10 Before
Summary: Case: 14-10548 Date Filed: 06/16/2015 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-10548 _ D.C. Docket No. 9:11-cv-80723-KLR RENEC ULYSSE, Plaintiff - Appellant, ALIX ACCIMEUS, et al., Plaintiffs, versus WASTE MANAGEMENT, INC. OF FLORIDA, Defendant - Appellee, EEOC, Defendant. _ Appeals from the United States District Court for the Southern District of Florida _ (June 16, 2015) Case: 14-10548 Date Filed: 06/16/2015 Page: 2 of 10 Before M..
More
Case: 14-10548 Date Filed: 06/16/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10548
________________________
D.C. Docket No. 9:11-cv-80723-KLR
RENEC ULYSSE,
Plaintiff - Appellant,
ALIX ACCIMEUS, et al.,
Plaintiffs,
versus
WASTE MANAGEMENT, INC. OF FLORIDA,
Defendant - Appellee,
EEOC,
Defendant.
_______________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(June 16, 2015)
Case: 14-10548 Date Filed: 06/16/2015 Page: 2 of 10
Before MARCUS and WILSON, Circuit Judges, and THAPAR, * District Judge.
PER CURIAM:
District courts must have the authority to control their dockets. Just as
citizens must obey laws, lawyers and parties must obey orders. Only then can our
courts administer a system of justice. Renec Ulysse’s lawyer failed to heed
repeated warnings from the district court to limit his witnesses, describe their
testimony, and identify his exhibits. So, the district court dismissed the case with
prejudice. We sympathize with the district court’s frustration in this case. But,
before dismissing a case with prejudice, courts must consider lesser sanctions and
state why they would not be appropriate. The district court did not do so here.
Accordingly, we vacate the court’s dismissal and remand for such findings.
I.
Ulysse was the lead plaintiff in a Title VII employment discrimination case
against Waste Management, Inc. of Florida (“Waste Management”) that involved
98 plaintiffs. Ulysse and his co-plaintiffs alleged that Waste Management
discriminated against them and fostered a hostile work environment. The district
court managed the case as follows: First, the court issued a scheduling order
setting a trial date of November 13, 2013, and directing the parties to submit
*
Honorable Amul R. Thapar, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
2
Case: 14-10548 Date Filed: 06/16/2015 Page: 3 of 10
pretrial filings three weeks before that trial date. And second, the court denied
Ulysse’s motion for class certification and granted Waste Management’s motion to
sever. So Ulysse remained the sole plaintiff in this case.
As the case progressed toward trial, the parties submitted their witness and
exhibit lists as required by the scheduling order. Ulysse’s witness list, however,
more closely resembled a telephone directory than a witness list for trial. Ulysse
provided the names and addresses of 84 individuals that he “expect[ed] to call or
may call if the need arises.” The witness list further included “[a]ll persons
disclosed in discovery.” The exhibit list contained only nine entries. Some of the
highlights are: “Plaintiff’s EEOC file,” “[d]ocuments produced in response to non-
party subpoenas,” “[d]ocuments obtained through discovery,” and “[a]ll rebuttal
and impeachment exhibits.”
Upon a motion by Waste Management, the district court struck Ulysse’s
witness and exhibit lists. The court concluded that Ulysse’s counsel acted in bad
faith by failing to follow the scheduling order and by submitting “utterly useless”
exhibit and witness lists. Due to counsel’s misconduct, the district court continued
the trial and directed Ulysse to file a new witness list and exhibit list within five
days. For the witness list, the court limited Ulysse to a maximum of three co-
3
Case: 14-10548 Date Filed: 06/16/2015 Page: 4 of 10
employee witnesses (but did not explicitly limit the number of any other witnesses)
and required Ulysse to summarize each witness’s testimony. For the exhibit list,
the court ordered Ulysse to list the name, date, a summary, and the expected
purpose of the exact documents he would introduce as trial exhibits. On the same
day, the district court also entered orders preventing Ulysse from introducing his
EEOC Letter of Determination and excluding “trial testimony by individuals other
than [Ulysse] that they suffered or witnessed unlawful harassment” unrelated to
Ulysse’s claim. These orders were in addition to the court’s earlier ruling that
Ulysse’s entire EEOC file would not be admitted into evidence.
On November 13, 2013—three days after the district court’s deadline—
Ulysse’s counsel submitted a new exhibit list and a new witness list. But the
witness list named six co-employee witnesses—three more than the district court
permitted in its order. The exhibit list included “Amended/Supplemental
Interrogatory Responses,” as well as the “Charge of Discrimination” for Ulysse
and his co-employee witnesses for the expected purpose of establishing the co-
employee “witness[es]’ allegations of discrimination.” Counsel also filed a motion
to reconsider the order requiring new witness and exhibit lists. Waste Management
moved to strike the new lists, or in the alternative, to dismiss the case with
prejudice.
4
Case: 14-10548 Date Filed: 06/16/2015 Page: 5 of 10
The district court granted Waste Management’s motion to dismiss the case
with prejudice. In its order, the district court explained that counsel’s filings were
in “direct disregard of the Court’s limitation on the number of witnesses and the
type of exhibits permitted at trial.” While acknowledging that dismissal with
prejudice is “a sanction of last resort,” the court found that plaintiff’s misconduct
warranted that drastic remedy. For similar reasons, the district court also denied
Ulysse’s motion to reconsider. Ulysse now appeals the district court’s dismissal of
his case with prejudice, as well as the court’s order limiting his witnesses and
requiring an amended exhibit list.
II.
District courts must have the power to manage cases in a way that achieves
“the orderly and expeditious disposition of cases.” Eagle Hosp. Physicians, LLC v.
SRG Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009) (quoting Chambers v.
NASCO, Inc., 501 U.S 32, 43 (1991)). An important component of that power is
the ability to impose sanctions for litigation misconduct.
Id. Sanctions dissuade
future misconduct and ensure that litigation moves efficiently and in compliance
with court orders. As such, we review such sanctions for an abuse of discretion.
Betty K Agencies, Ltd. v. M/V MONADA,
432 F.3d 1333, 1337 (11th Cir. 2005)
(citing Goforth v. Owens,
766 F.2d 1533, 1535 (11th Cir. 1985)).
5
Case: 14-10548 Date Filed: 06/16/2015 Page: 6 of 10
The district court’s power, however, is not unlimited. Rather, district courts
should wield it wisely and with “restraint and discretion.” Eagle Hosp., 561 F.3d
at 1306 (quoting Roadway Express, Inc. v. Piper,
447 U.S. 752, 764 (1980)). This
limitation is especially true where the district court sanctions a party by dismissing
the case with prejudice. Such a sanction is limited to (1) when a party engages in
clear misconduct and (2) the district court specifically finds that no lesser sanction
is appropriate. World Thrust Films, Inc. v. Int’l Family Entm’t, Inc.,
41 F.3d 1454,
1456 (11th Cir. 1995) (per curiam).
As to the first prong, the record is clear that plaintiff’s counsel engaged in a
repeated pattern of disobedience. First, Ulysse violated the district court’s
scheduling order when he failed to confer with Waste Management a month before
the scheduled trial to prepare a joint pretrial stipulation. Despite the district court’s
express warning that violations of the scheduling order may be punished by
sanctions including dismissal, Ulysse ignored Waste Management’s attempts to
contact him until the night before the joint stipulation was due. Second, Ulysse’s
84-person witness list violated the Local Rules for the Southern District of Florida.
Local Rule 16.1(e)(10) specifies that a party’s witness list must separately identify
those witnesses whom the party expects to present and those whom the party may
6
Case: 14-10548 Date Filed: 06/16/2015 Page: 7 of 10
call if the need arises. Ulysse’s witness list proudly pronounced that it consisted of
“each witness [Ulysse] expects to call or may call if the need arises.” Third, after
the court ordered Ulysse to include no more than three co-employee witnesses in
his revised list, Ulysse ignored the order and submitted, after the court’s deadline,
a list that included six co-employee witnesses. Fourth, Ulysse’s original exhibit
list, as he acknowledged, did not comport with the district court’s order or the local
rules because it included individual “exhibits” such as all “[d]ocuments obtained
through discovery.” See Appellant’s Br. at 9 (“Ulysse does concede that several of
the exhibits on the initial exhibit list were problematic . . . .”). And fifth, Ulysse
submitted, again after the court’s deadline, an amended exhibit list that included
EEOC Charges of Discrimination by Ulysse and his co-employees, and
interrogatory responses pertaining to discrimination against Ulysse’s co-
employees—in violation of the court’s earlier rulings that Ulysse’s EEOC file
would not be admitted into evidence and that Ulysse could not introduce evidence
of unrelated discrimination against his co-employees. Those actions demonstrate a
pattern of “willful contempt.”
On the second prong, however, the district court did not explain why lesser
sanctions would not do. In its order, the court thoroughly catalogued counsel’s
repeated failures to comply with court orders and concluded that the misconduct
7
Case: 14-10548 Date Filed: 06/16/2015 Page: 8 of 10
warranted dismissal. But the court did not discuss the possibility of imposing
lesser sanctions, such as choosing for the plaintiff which three witnesses would
testify, limiting the exhibit list to only exhibits that complied with its order,
striking the witness and exhibit lists completely and allowing the plaintiff to
proceed based solely upon his own testimony, or imposing financial sanctions on
Ulysse’s attorney for wasting time and resources. Nor is it clear from the order
that the court implicitly considered such sanctions. So the district court’s order
departs from the established two-step rule for awarding dismissal sanctions.
Since dismissal punishes a party for his attorney’s failure, it is a drastic
sanction. As such, fairness to the party requires the court to explain why lesser
sanctions would be inadequate punishment. See Phipps v. Blakeney, 8 F.3d 788,
791 n.6 (11th Cir. 1993) (“This custom [of requiring the court to discuss why
lesser sanctions are insufficient] draws its support from the idea that only as a last
resort should parties be punished by dismissal of their case for their lawyer’s
failings.”). Here, the district court “failed to find, explicitly or implicitly, that
lesser sanctions were inadequate.” Betty
K, 432 F.3d at 1340. It may well be true
that a lesser sanction would not have compelled compliance by Ulysse’s counsel
and provided for the expeditious disposition of this claim—we offer no opinion
whether that is the case—but the district court was obliged to explicate how it
8
Case: 14-10548 Date Filed: 06/16/2015 Page: 9 of 10
reached that conclusion. As a result, the case must be remanded for the district
court to consider lesser sanctions.
The remand to the district court in no way suggests that counsel’s actions
were anything less than brazenly disobedient. Counsel directly violated several
orders from the district court. Even if counsel believed that the court’s orders were
erroneous, counsel was still wrong to disregard them. Instead, he should have
followed the orders, preserved any objections for appeal, and then, if necessary,
filed an appeal at the end of the case. The path taken by counsel—persistent
defiance—is never appropriate. But even though plaintiff’s counsel engaged in
reproachful conduct, the district court was required to consider whether lesser
sanctions may have been adequate before it dismissed the action with prejudice.
While the Court remands for a discussion of lesser sanctions, Ulysse also
requests further relief. He contends that the district court’s order limiting Ulysse’s
witnesses and requiring Ulysse to file an amended exhibit list was an abuse of
discretion. In addition to the authority “to impose sanctions for failure to comply
with a scheduling or pretrial order,” Brooks v. United States, 837 F.2d 958, 961
(11th Cir. 1988), district courts have the power to control, “[w]ithin limits,” the
presentation of evidence, Geders v. United States,
425 U.S. 80, 86 (1976). At this
9
Case: 14-10548 Date Filed: 06/16/2015 Page: 10 of 10
moment, however, adjudication of Ulysse’s objection is premature. He is unable to
show prejudice or any effect on his substantial rights from the order because the
case has not yet gone to trial. Anderson v. WBMG-42, 253 F.3d 561, 563 (11th
Cir. 2001) (explaining that evidentiary rulings may be reversed only “if the
complaining party establishes that the evidentiary ruling resulted in a substantial
prejudicial effect” (internal quotation marks omitted)).
Accordingly, we vacate the district court’s dismissal with prejudice and
remand to the district court to consider whether lesser sanctions are appropriate.
VACATED AND REMANDED.
10
