Filed: Aug. 11, 2000
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 00-30006 Summary Calendar _ DEITRA BETHEL, Plaintiff-Appellant, VERSUS WOODS HAVEN SENIOR CITIZEN HOME INC.; BARBARA TILEY, RN; H.P. TARPLEY, Defendants-Appellees. _ Appeal from the United States District Court For the Western District of Louisiana (98-CV-1832 _ August 9, 2000 Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:* Deitra Bethel appeals the district court’s order dismissing with prejudice her wrongful ter
Summary: UNITED STATES COURT OF APPEALS For the Fifth Circuit _ No. 00-30006 Summary Calendar _ DEITRA BETHEL, Plaintiff-Appellant, VERSUS WOODS HAVEN SENIOR CITIZEN HOME INC.; BARBARA TILEY, RN; H.P. TARPLEY, Defendants-Appellees. _ Appeal from the United States District Court For the Western District of Louisiana (98-CV-1832 _ August 9, 2000 Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges. PER CURIAM:* Deitra Bethel appeals the district court’s order dismissing with prejudice her wrongful term..
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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 00-30006
Summary Calendar
___________________________
DEITRA BETHEL,
Plaintiff-Appellant,
VERSUS
WOODS HAVEN SENIOR CITIZEN HOME INC.; BARBARA TILEY, RN; H.P.
TARPLEY,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Western District of Louisiana
(98-CV-1832
___________________________________________________
August 9, 2000
Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Deitra Bethel appeals the district court’s order dismissing
with prejudice her wrongful termination action for failure of her
attorney to comply with a scheduling order and pretrial order of
the court. For the reasons that follow, we reverse and remand.
I.
Bethel brought this wrongful termination action under Title
VII of the Civil Rights Act of 1964 and 1991 and 42 U.S.C . §
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
20003, et seq. On September 26, 1998, the district court ordered
the plaintiff to initiate a conference with defense attorneys to
prepare a “plan of work” and submit it for court approval. No
conference was held, nor was a plan of work filed. On April 26,
1999, the district court scheduled a pretrial conference for
December 4, 1999 and ordered that pretrial stipulations be filed
two weeks prior the conference. The district court’s order
expressly made the plaintiff responsible for preparing and filing
the pretrial stipulations and for arranging a prior meeting between
the parties. The pretrial stipulations were not filed until the
date of the pretrial conference. Because the plaintiff failed to
comply with the district court’s orders concerning pretrial
filings, the case was dismissed with prejudice, pursuant to Federal
Rule of Procedure 16(f).1 Bethel appeals the dismissal.
1
Federal Rule of Civil Procedure 16(f) provides that:
If a party or party’s attorney fails to obey a
scheduling or pretrial order or if no appearance is made
on behalf of a party at a scheduling or pretrial
conference, or if a party or party’s attorney is
substantially unprepared to participate in the conference,
or if a party or party’s attorney fails to participate in
good faith, the judge, upon motion or the judge’s own
initiative, may make such orders with regard thereto as are
just, and among others any of the orders provided
in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition
to any other sanction, the judge shall require the party
or the attorney representing the party or both to pay the
reasonable expenses incurred because of any noncompliance
with this rule, including attorney’s fees, unless the judge
finds that the noncompliance was substantially justified
or that other circumstances make an award of expenses unjust.
Under Federal Rule of Civil Procedure 37(b)(2)(B), (C), (D), potential
sanctions include, but are not limited to: a preclusion order, an order striking
a pleading, an order staying proceedings, an order of dismissal, default
judgment, and an order of contempt.
2
II.
We review the district court’s entry of sanctions under FRCP
16(f) for abuse of discretion. Securities and Exchange Commission
v. First Houston Capital Resources Fund, Inc., 979 F.2d 380, 381
(5th Cir. 1992). However, because of the harshness of a sanction
of dismissal, we will affirm only where there is a “clear record of
delay or contumacious conduct by the plaintiff” and “lesser
sanctions would not serve the best interests of justice.” Price v.
McGlathery,
792 F.2d 472, 474 (5th Cir. 1986) (quoting Rogers v.
Kroger Co.,
669 F.2d 317, 320 (5th Cir. 1982)); John v. Louisiana,
828 F.2d 1129, 1131 (5th Cir. 1987); Callip v. Harris County Child
Welfare Department,
757 F.2d 1513, 1519 (5th Cir. 1985). “Absent
such a showing, the trial court’s discretion is limited to the
application of lesser sanctions designed to achieve compliance with
court orders and expedite proceedings.” Bann v. Ingram Micro,
Inc.,
108 F.3d 625, 627 (5th Cir. 1997).
In most cases where this court has affirmed a sanction of
dismissal, at least one of the following three aggravating factors
is present: “(1) delay caused by [the] plaintiff himself and not
his attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct.” Price, 792 F.2d at 474; see also
Callip, 757 F.2d at 1519. Although a party is bound by the acts of
his attorney “and may suffer dismissal ... if his counsel is
chargeable with clear delay or contumacy, the proper punishment for
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an inept lawyer is to assess fines, attorney’s fees, or costs
against the lawyer without harming the client.” John, 828 F.2d at
1132 (emphasis added).
III.
We agree with Bethel that the record in this case does not
support a sanction of dismissal. There is no clear record of delay
or contumacious conduct by the plaintiff. In John, 828 F.2d at
1131, we found no clear record of delay or contumacy where the
plaintiff was late in filing his response to discovery requests, in
submitting a pretrial order, and in submitting other pretrial
filings ordered by the court. We found the few months of delay
caused by the misconduct of the plaintiff’s attorney insufficient
justification for dismissal, particularly where the conduct
resulted from negligence rather than bad faith or persistent
disobedience.
Id. at 1131-32.
For conduct to be contumacious, it must be more than
negligence, “regardless of how careless, inconsiderate, or
understandably exasperating;” rather, the conduct must be “stubborn
resistance to authority.” McNeal v. Papasan, 842 F.2d 787, 792 (5th
Cir. 1988).2 In McNeal, we found insufficient evidence in the
record from which to determine whether plaintiff’s conduct was
contumacious.
Id. at 792-93. In Bethel’s case also, we find the
record to be insufficient in this regard. Likewise, the district
2
McNeal involved a dismissal sanction under FRCP 41(b) rather than FRCP
16(f). However, our analysis on appeal is the same. Price, 792 F.2d at 474.
4
court’s opinion contains no finding of bad faith or intentional
disobedience by the plaintiff.
We have, of course, affirmed the sanction of dismissal in a
number of cases. The facts in those cases are distinguishable from
those in the instant case. In Bluitt v. Arco Chemical Co., 777
F.2d 188 (5th Cir. 1985), the plaintiff failed to comply with three
prior district court orders to more fully answer the defendant’s
interrogatories. The court also expressly warned the plaintiff
that further failure to comply would result in dismissal.
Id. at
190. The district court made specific findings of bad faith and
evasiveness by the plaintiff and her attorney, and found that
lesser sanctions would be ineffective because plaintiff had
disregarded its prior orders.
Id. at 191.
In Price, 792 F.2d at 472, we affirmed dismissal sanctions
where the plaintiff twice failed to comply with a pretrial filing
order, was warned by the district court, and then failed to appear
at the pretrial conference. Prior to dismissing the case, the
district court had stayed the proceedings, dismissed the case, and
then reinstated it; thus, the district court concluded than
dismissal was the only appropriate sanction.
Id. at 475.
Finally, in Callip, 757 F.2d at 1519-20, the district court
dismissed the case after plaintiff missed a filing deadline in a
pretrial order. However, before missing this deadline, the
plaintiff had failed to comply with at least nine deadlines imposed
by rules or court orders, despite being provided with additional
time to comply on at least five occasions.
Id. at 1519-20.
5
In addition to the absence of a clear record of delay or
contumacious conduct by the plaintiff in this case, the district
court’s order of dismissal does not indicate that lesser sanctions
were considered. “[E]ven if the record teems with instances of
delay or other egregious behavior, a district court cannot impose
the extreme sanction of dismissal ‘unless [it] first finds that a
lesser sanction would not have served the interests of justice.’
A silent record is inadequate. We shall not infer that the
district judge weighed alternative sanctions; he must have
‘expressly considered’ them.” Securities and Exchange Commission,
979 F.2d at 382 (quoting
McNeal, 842 F.2d at 793 and
Callip, 757
F.2d at 1521).
Even without express consideration by the district court of
alternate sanctions, we may still affirm if the record indicates
that the district court had employed lesser sanctions prior to
dismissal which proved to be futile. See Callip, 757 F.2d at 1521;
see also
McNeal, 842 F.2d at 793 (no lesser sanctions imposed
before plaintiff’s case dismissed). However, we find no indication
from the record that the district court in today’s case imposed
prior sanctions against Bethel before dismissing her complaint.
Finally -- as to the existence of aggravating factors -- the
record fails to reveal that any delay caused by plaintiff’s failure
to comply either prejudiced the defendant or was caused by
intentional rather than negligent behavior on the part of counsel.
There is no evidence that the delay can be attributed to Bethel
herself rather than her attorney.
6
We do not condone the conduct of Bethel’s attorney in this
case and we understand the frustration of the busy district court
judge in dealing with dilatory, irresponsible counsel. However,
because the record does not support a sanction of dismissal, we
must reverse the district court’s order dismissing Bethel’s
complaint. We remand to the district court to consider imposition
of a lesser appropriate sanction and for further proceedings.
REVERSED and REMANDED.
7
