Blackwell v. J C Penney

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 25, 1996
• Docket: 95-20707
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-20707 _____________________

ANGELA BLACKWELL,

Plaintiff-Appellant

v.

J C PENNEY; KEVIN GEBHARDT,

Defendants-Appellees

_________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (CA-H-93-2669) _________________________________________________________________ July 11, 1996

Before KING, JONES, and DEMOSS, Circuit Judges.

PER CURIAM:*

Angela Blackwell appeals the district court’s dismissal of

her retaliation claim for lack of prosecution and failure to

cooperate in discovery. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Angela Blackwell (“Blackwell”) brought this action against

her former employer J.C. Penney Company, Inc. and her former

supervisor Kevin Gebhardt (collectively, the “Defendants”),

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. alleging discrimination on the basis of her sex, race, and

age, negligent supervision, breach of contract, intentional

infliction of emotional distress, and retaliation. The district

court granted summary judgment to the Defendants on all claims

except the retaliation claim.1

Before the trial on the retaliation claim, the Defendants

made an oral motion to dismiss for want of prosecution and for

failure to cooperate in discovery. In support of this motion,

the Defendants informed the court that:(1) as of the date of

trial, Blackwell had not presented Defendants with complete

answers to their discovery requests, despite a court ordered

sanction of $482.50 and two court orders compelling conformance

with these discovery requests;(2) Blackwell failed to forward

Defendants copies of her response to their motion for summary

judgment and the affidavits attached thereto; and (3) Blackwell

failed to provide Defendants with a copy of her exhibit and

witness lists although both are required pursuant to local rules.

The district court orally granted the Defendants’ motion. In

a subsequent Memorandum Order, the court held that, by

prosecuting the case in bad faith and engaging in contumacious

conduct, Blackwell had impeded Defendants’ ability to prepare for

trial. The court also stated that lesser sanctions would be

futile because Blackwell disregarded court orders even after the

court had awarded sanctions against her. Blackwell timely

appealed.

1 Blackwell does not appeal the summary judgment.

2 II. DISCUSSION

On appeal, Blackwell contends that the district court has

limited authority to dismiss an action with prejudice and that

the court abused its discretion when it dismissed the case for

want of prosecution and for failure to respond to discovery. She

claims that neither the requisite elements nor the aggravating

factors for a dismissal with prejudice have been met. In

addition, she argues that even if the requisite elements have

been met, the case should not have been dismissed because the

disobedient conduct that resulted in the dismissal was that of

her former counsel and not her own.

The district court’s authority to dismiss under Federal Rules

of Civil Procedure 37 and 41(b) has been well established. See

Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); see also Truck

Treads, Inc. v. Armstrong Rubber Co., 818 F.2d 427, 428 (5th Cir.

1987)(dismissal affirmed on basis of district court’s finding of

bad faith failure to comply with previous discovery order);

Bluitt v. Arco Chemical Co., 777 F.2d 188, 189 (5th Cir.

1985)(dismissal affirmed for failure to comply with discovery

orders). This court will uphold a district court’s involuntary

dismissal with prejudice absent an abuse of discretion. Price v.

McGlathery, 792 F.2d 472, 474 (5th Cir. 1986); Morris v. Ocean

Systems, Inc., 730 F.2d 248, 251 (5th Cir. 1984).

Because dismissal is a harsh sanction, an involuntary

dismissal is affirmed only if a clear record of delay or

contumacious conduct by the plaintiff exists and lesser sanctions

3 would not serve the best interests of justice. Price, 792 F.2d

at 474; Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159

(5th Cir. 1985); Callip v. Harris County Child Welfare Dep’t, 757

F.2d 1513, 1519 (5th Cir. 1985). Further, this court has stated

that most of the cases in which dismissals have been affirmed

involved the presence of one or more of the three following

“aggravating factors”: (1) delay attributable directly to the

plaintiff, rather than the attorney; (2) actual prejudice to the

defendant; and (3) delay caused by intentional conduct. Price

792 F.2d at 475; Sturgeon, 778 F.2d at 159; Callip, 757 F.2d at

1519. These aggravating factors, however, are not prerequisites

to dismissal. See Rogers v. Kroger Co., 669 F.2d 317, 320 n.5

(5th Cir. 1982)(“The terms ‘requisite’ and ‘aggravating’ are used

because we assume that the presence of the former can alone

justify dismissal.”); cf. Price 792 F.2d at 475 (the existence of

one aggravating factor, coupled with the record of delay or

contumacious conduct and consideration of lesser sanctions,

supported a dismissal with prejudice).

Under this standard, we find no abuse of discretion. The

district court determined that Blackwell willfully ignored

Defendants’ appropriate requests for information, violated two

orders of the court, and failed to provide Defendants with

witness and trial exhibit lists before trial. In addition,

because Blackwell failed to cooperate in discovery even after the

court awarded monetary sanctions against her, the court concluded

that lesser sanctions would be ineffective. Cf. Damiani v. Rhode

4 Island Hosp., 704 F.2d 12, 15 (1st Cir. 1983)(“There is nothing

in [Rule 37(b)(2)] that states or suggests that the sanction of

dismissal can be used only after all of the other sanctions have

been considered or tried.”) Finally, the court found two of the

aggravating factors present: actual prejudice to the defendant

and delay caused by intentional conduct. Therefore, the district

court did not abuse its discretion in dismising Blackwell’s

claim.

Blackwell also argues that the dismissal unjustly punishes

her for the misconduct of her former counsel. The Supreme Court

has held, however, that a plaintiff is responsible for the

actions of his attorney. Accordingly, the district court did not

abuse its discretion when it attributed the misconduct of

Blackwell’s attorney to Blackwell. See Link, 370 U.S. at 633-34;

see also Pryor v. United States Postal Serv., 769 F.2d 281, 288

(5th Cir. 1985)(holding that mistakes of counsel are chargeable

to the client, particularly in civil litigation).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.