Kelechi Nwabeke v. Torso Tiger, Inc.

194 F. App'x 669

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 24, 2006
• Docket: 06-10480
• Status: Unpublished

Opinion

PER CURIAM.

The district court dismissed this case with prejudice, ordering plaintiff to bear the defendant’s costs and fees, for plaintiffs failure to appear at her Rule 35 examination and for her misleading deposition testimony. Plaintiffs failure to attend the examination occurred nine days after her counsel was permitted by the court to withdraw and the court “continued” her ease for sixty days to secure new counsel. Plaintiff asserts that she was advised by her counsel, prior to his withdrawal, that she need not attend the examination while her case was continued.

While we agree with the district court that dismissal is an appropriate sanction where the circumstances indicate a clear record of delay, we are concerned that such circumstances are not entirely clear in this case. The record in this case lacks any clear support for the conclusion that plaintiffs failure to attend her examination was “willful,” and lends itself to the inference that misunderstanding or confusion, engendered in part by an officer of the court, may have led to her failure to attend. For such a harsh sanction as dismissal, we require that the record clearly reflect a willful pattern of delay and obstruction of the orderly progress of the case. See EEOC v. Troy State Univ., 693 F.2d 1353, 1357-58 (11th Cir.1982) (reversing dismissal under Fed.R.Civ.P. 37 because noncompliance with a discovery order stemmed from confusion and misunderstanding). Accordingly, we shall remand this case for such findings to be made.

VACATED AND REMANDED.