Elmo C. Tatum v. Liberty Housing Co.

726 F.2d 410, 38 Fed. R. Serv. 2d 742, 1984 U.S. App. LEXIS 25882

• Court: Court of Appeals for the Eighth Circuit
• Decided: February 1, 1984
• Docket: 83-2561
• Status: Published

Opinion

McMILLIAN, Circuit Judge.

Elmo C. Tatum appeals from a final order entered in the District Court for the Northern District of Iowa dismissing his case for failure to comply with a magistrate’s order to attend the final pretrial conference. Tatum explained that he did not attend the conference because he believed that the same counsel appointed to represent him on a prior appeal, see Tatum v. Liberty Housing Co., 701 F.2d 744 (8th Cir.1983), would continue to represent him on remand and would notify him if his presence were required. Because hé was not so notified, he did not attend the pretrial conference.

We believe the district court abused its discretion in dismissing Tatum’s complaint. “We do not consider a dismissal with prejudice under [Fed.R.Civ.P. 41(b) ] lightly, for the effect of such an order is to forever deny a plaintiff access to the courts for the impartial resolution of potentially meritorious claims.” Darms v. McCulloch Oil Corp., 720 F.2d 490, 494 (8th Cir.1983) (citations omitted). The record contains nothing from Tatum’s appointed counsel on appeal notifying him that counsel’s representation would end with the appeál. In light of this fact and the district court’s certification of Tatum as a pauper, Tatum might very well have believed that he was represented.

Accordingly, we reverse the district court’s order of dismissal and remand to the district court for further proceedings.