TITUS, Thomas E., Appellant, v. MERCEDES BENZ OF NORTH AMERICA

695 F.2d 746

• Court: Court of Appeals for the Third Circuit
• Decided: December 17, 1982
• Docket: 82-5009
• Status: Published

Opinions

OPINION ANNOUNCING THE JUDGMENT OF THE COURT

BECKER, Circuit Judge.

This appeal requires us to consider whether the district court abused its discretion in dismissing appellant’s complaint with prejudice upon recommendation of the United States Magistrate, who reported that plaintiff’s counsel had been unprepared at several pretrial conferences and had failed timely to submit a pretrial order. At the time of the dismissal, this court had not decided Donnelly v. Johns-Manville Sales Corporation, 677 F.2d 339 (3d Cir.1982), which holds that, prior to dismissing an action with prejudice for failure to prosecute, the district court must first consider whether less severe sanctions would serve the ends of justice. Not having the benefit of Donnelly, the district court dismissed without considering the availability of such sanctions; at least the record does not reflect that consideration. Since Donnelly now represents the law of this circuit and must be applied in all cases subsequent to its filing,¹ we vacate and remand for further consideration in light of Donnelly.

I.

After receiving a “right to sue” letter from the Equal Employment Opportunity Commission (EEOC), the appellant, Thomas F. Titus, instituted an action in the district court on January 26, 1981. Claiming violations of Title VII of the Civil Rights Act of 1964, as amended, the complaint alleged that Titus had been discharged from his employment with appellee, Mercedes Benz of North America, on November 16,1979, as the result of racial discrimination.² Mercedes Benz filed its answer on March 10, 1981, whereupon the case was referred to a United States Magistrate for pretrial proceedings. On March 11, 1981, the clerk mailed a pretrial notice form to counsel.³ The rest of the record is sparse — its paucity illustrated by the fact that the next entry on the docket, except for the filing of a deposition transcript, is the magistrate’s November 6,1981, report and recommendation of dismissal.⁴ That report and recommendation, filed sua sponte, is sufficiently brief that we set it forth in full:

This is a Title VII case for alleged racial discrimination in employment. A pretrial notice fixing a pretrial conference for June 8, 1981 was sent to counsel for the parties by the clerk of this court on March 11, 1981. On June 8, 1981, counsel appeared and plaintiff was unprepared and was without a pretrial order prepared pursuant to the pretrial notice. A pretrial conference was scheduled for September 10, 1981 and on that date counsel again appeared and the plaintiff was again unprepared. It was necessary to enter a discovery order fixing dates for the completion of discovery and a final pretrial conference was set for October 15, 1981. Counsel were directed that it was necessary that a pretrial order in accordance with this court’s pretrial notice be presented for signature on that date. On October 15,1981, counsel again appeared and again, plaintiff was unprepared and no pretrial order was presented. Counsel for plaintiff was directed to present a pretrial order prepared pursuant to the directions contained in the original pretrial notice no later than October 22,1981. This date was selected by plaintiff’s attorney.

To date, plaintiff has failed to comply with this court’s order and has failed to prosecute this case. It is respectfully recommended that the matter be dismissed.

Both parties submitted letters to the district court in response to the report and recommendation. In his letter, Titus’ attorney challenged the report’s veracity. He stated:

In her report, [the magistrate] indicated, inter alia, that no Pre-trial order was presented. It should be noted that my staff has presented a Pre-trial Order, admittedly it was late, and same, as I understand it, would not be accepted unless it was also concurred to by my adversary. On said date, we delivered a copy to my adversary.

Subsequently thereto, telephone calls and communications were forthcoming. This week I received [a] letter from my adversary outlining their objections; all of which can be cured.

Appellee’s letter, in contrast, was accompanied by an affidavit of counsel in which he stated that, to his knowledge, Titus had never submitted a pre-trial order to the magistrate and that, in addition to not having been prepared on October 22, Titus’ counsel did not even appear for the pre-trial conference.⁵ The affidavit further informed the district court that Titus had not responded to Requests for Admissions and Interrogatories except to supply the names of potential witnesses. Titus did not challenge the affidavit and concedes in his brief to this court that his counsel failed to appear at the October 22 conference.

On November 30, without hearing argument, the district court entered a brief order approving the magistrate’s report and dismissing the case with prejudice less than eight months after it had been filed. Titus contends that the district court’s action was an abuse of its discretion because (1) the “harsh sanction” of dismissal should be resorted to only in extreme cases, and only when there is a clear showing of willful violation of court rules or orders or of contumacious conduct or intentional delay; and (2) none of those factors are present on this record.

II.

It is well established that a court has authority to order a dismissal sua sponte when the plaintiff has failed to prosecute his suit. In Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962), Justice Harlan wrote:

The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of non suit and non prosequitur entered at common law.... the authority of the court to dismiss sua sponte for lack of prosecution has generally been considered an “inherent power,” governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.

Id. at 629-31, 82 S.Ct. at 1388-89 (citations and footnote omitted).

This Court has recently emphasized, however, that district courts should be reluctant to deprive a plaintiff of the right to have his claim adjudicated on the merits. See, e.g., Donnelly v. Johns-Manville Sales Corporation, 677 F.2d 339 (3d Cir.1982); Harris v. Cuyler, 664 F.2d 388 (3d Cir.1981). Donnelly, our most recent pronouncement in this area, restated the governing principle in this Circuit: dismissal is a drastic sanction and should be reserved for those cases where there is “a clear record of delay or contumacious conduct by the plaintiff.” 677 F.2d at 342. Donnelly further held that “it is necessary for the district court to consider whether lesser sanctions would better serve the interests of justice.”⁶ Id.; accord Asociación de Empleados del Instituto de Cultura Puertorriquena v. Rodriguez Morales, 538 F.2d 915 (1st Cir.1976); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir.1976).

The opinion in Donnelly, of course, was filed after the dismissal in this case; since it was not available to either the magistrate or the district court, they can hardly be faulted for not having followed its precepts. Donnelly is nonetheless applicable here,⁷ and the record does not show whether the magistrate or the district judge considered sanctions less severe than dismissal. Had they done so, they might have concluded that one of those sanctions would have better served the interests of justice. Under these circumstances, remand to the district court is required.

Without a doubt, appellant’s counsel was seriously delinquent in his obligations to the court in October 1981: despite the magistrate’s order, he failed to file a timely pretrial order or even to appear for a conference at a time he himself had selected.⁸ On appellant’s theory, the delinquency of his counsel amounted to only a matter of weeks; in the view of the appellee, the delinquency was egregious and long-standing.⁹ See supra note 8. Regrettably, the magistrate’s report is not particularly helpful in resolving this dispute, and the district court will doubtless wish to consider upon remand whether appellant’s failures constitute a record of dilatory proceeding or contumacious conduct sufficient to justify a dismissal with prejudice under Donnelly. See supra pp. 749-750.

We do not suggest that Donnelly prevents the district court from dismissing this case with prejudice. We recognize the heavy workload of the district courts, and we are mindful that broad discretion should be accorded district courts in the management of their calendars. Indeed the district court on remand may find that the conduct of appellant’s counsel was such that no less severe sanction than dismissal will serve the ends of justice.¹⁰ But because of the severity of that sanction, we require that the court should not take such drastic action without making the prerequisite finding (and without adequately recording its reasons for doing so).¹¹

Our remand in this case is no doubt fortuitous. But for the intervention of Donnelly.we might have been obliged to affirm the dismissal, regardless of the underlying circumstances, because of the utter failure of' appellant’s counsel to demonstrate to the district court why the magistrate’s report was in error. In general, the burden of establishing abuse of discretion is on the appellant. Fortunately for appellant, Donnelly works a reprieve. The naked record reveals no consideration of sanctions less severe than dismissal. The district court’s order of dismissal will thus be vacated and the case remanded so that the district court may consider alternative sanctions, and, if appropriate, make findings that would support a dismissal with prejudice.

1 . Although the dismissal below occurred before Donnelly was decided, the factors enunciated by the Supreme Court suggest that Donnelly's holding should be applied to the facts of this case.

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed. ... Second, it has been stressed that ‘we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.’ ... Finally, we have weighed the inequity imposed by retroactive application....

Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (citations omitted); cf. Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (court’s modification of obscenity standards announced in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), was applicable in reviewing a conviction under obscenity laws even though Miller was decided after appellant had been convicted); Bradley v. School Bd. of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974) (appellate courts are to apply the law in effect when decision is rendered unless “manifest injustice” to a party would result, or the statute or legislative history indicates otherwise).

2 . The only background information to be gleaned from the record regarding the nature of appellant’s underlying claims comes from the transcripts of the depositions of appellant and a supervisory employee of appellee. It appears that the appellant was hired by appellee on January 31, 1966, as a warehouseman at its Teaneck, New Jersey facility; that he was promoted through the' ranks to shipping clerk, warehouse supervisor, and assistant depot manager; that he held the joint job classification of warehouse supervisor and assistant depot manager when, in 1978 or early 1979, he was demoted to warehouse supervisor; and that apparently as the result of poor performance ratings he was summarily discharged from the company’s employ on November 16, 1979.

3 . The pretrial notice form sets forth the procedures required for preparation of the formal pretrial order, which is in turn to be reviewed and entered at the pretrial conference. The form calls upon counsel for all parties to confer in person prior to the pretrial conference in order to arrive at stipulations, to exchange documents that will be offered as evidence, and to consider a variety of other matters. The notice places the onus upon plaintiffs counsel to initiate the conference as well as to prepare a pretrial order and submit it to opposing counsel. All counsel must jointly submit the original and one copy of the final draft of the proposed pretrial order to the court at least one full workday prior to the conference.

4 . The record contains only the complaint, return of service, the answer, the deposition transcripts referred to supra note 2, the report and recommendation of the magistrate, the order approving that report, and some miscellaneous papers such as assignment sheets.

Appellee has filed an appendix in this court supplementing the district court record with (1) the submissions made by the parties to the district court in response to the magistrate’s report; and (2) the pretrial notice form, see supra note 3, which governs the district court’s pretrial procedures. Appellant has contributed virtually nothing to complete the record. Except for a copy of the magistrate’s report, he filed no appendix and devoted the bulk of his brief to a recitation of facts which are not contained in the record and which we may not consider, see Farnese v. Bagnasco, 687 F.2d 761 (3d Cir., 1982) (“In determining whether the district court has abused its discretion, a court of appeals must limit its review to matters of record.”).

Much of this extra-record material is also contained in a document styled “Plaintiff-Appellant’s Statement of Proceedings (In Lieu of Record on Appeal)” which was filed in this court but is not in conformity with Fed.R. App.P. 10(d). Appellee’s appendix contains “Objections and Proposed Amendments” to that document and includes a chronology of events. These documents contain information that, particularly in view of the conclusory nature of the magistrate’s report, would add considerable flesh to the skeletal record of the proceedings below. Even though many of the matters related were presumably within the magistrate’s ken, we are not at liberty to consider them because we cannot be sure that they were before the district judge and informed his exercise of discretion. Because this extra-record material is not a factor in our judgment, we are at a loss to understand Judge Garth’s statement to the contrary, see infra at 750, n. 7.

5 . As noted supra note 4, these communications, which presumably informed the district court’s exercise of discretion, were supplied to us via the parties’ “appendices.”

6 . Such possible sanctions, as the First Circuit has suggested, include a warning, a formal reprimand, placing the case at the bottom of the calendar, a fine, the imposition of costs or attorney fees, the temporary suspension of the culpable counsel from practice before the court, and dismissal of the suit unless new counsel is secured. Zavala Santiago v. Gonzalez Rivera, 553 F.2d 710, 712 n. 1 (1st Cir.1977). We add that district courts may also consider as sanctions the preclusion of claims or defenses, or the imposition of fees and costs upon plaintiff’s counsel under 28 U.S.C. § 1927 (1980).

In dissent, Judge Garth implies that Zavala Santiago constitutes strong support for the result reached below. See infra at pp. 760-61. To be sure, one factor motivating the court of appeals’ decision to affirm the dismissal in Zavala Santiago was the failure of plaintiffs’ counsel to appear at the pre-trial conference or to excuse himself for failing to appear. But Judge Garth omits that the court of appeals in Zavala Santiago also emphasized the nature of the litigation: the plaintiffs were seeking expedited injunctive relief. “When a claim for injunctive relief deserves and is granted priority treatment, a reasonable inference from the delay of the moving party is that he has little interest in vindicating whatever rights he may have.” 553 F.2d at 712-13 (footnote omitted). Indeed, as the quoted passage suggests, the court in Zavala Santiago concluded that “[p]laintiffs deliberately thwarted the scheduling efforts of the district court in a variety of ways .. .Id. at 713. Unlike Zavala Santiago, the record in this case is not sufficiently developed for us to reach a similar judgment. See infra note 8.

7 . See supra note 1. The gravamen of Judge Garth’s dissent appears to be an objection to the application of Donnelly to these facts. But to read Donnelly as narrowly as he does — limiting it to its facts — is to emasculate the salutary precept which it announces, a precept by which this panel is bound.

8 . The magistrate’s recommendation of dismissal seems to be predicated on appellant’s failure to be prepared for pretrial conferences in June and September, as well as October. We also gather from the magistrate’s report that the unpreparedness in each instance consisted solely of counsel’s failure to submit a pretrial order pursuant to the magistrate’s pretrial notice. The local rules for the District of New Jersey, however, require pretrial orders to certify that discovery is complete. According to the affidavit of appellee’s counsel, discovery was still in its incipient stages at the time of the June and September conferences: interrogatories and requests for admissions were outstanding and no depositions were taken by either party until mid-September when Mercedes Benz deposed appellant and appellant deposed the key supervisory employee of Mercedes Benz. The magistrate, in fact, had given the parties until October 15 to complete discovery. In light of these facts and the New Jersey rule governing the temporal relationship between discovery and pretrial orders, the district court may wish to consider whether a dismissal can be justified on the ground that appellant was not prepared to file a pre-trial order during the months of June and September. Since Judge Fullam has commented in detail on Judge Garth’s view that the events of June and September are sufficient to justify dismissal, see infra pp. 752-753 we shall not enter the lists here. We simply note that the district court may find it helpful to obtain an augmented record.

9 . The age of a case, of course, is not dispositive, and district courts should be commended for attempting to achieve the “highest quality of justice in the shortest possible time at the lowest cost.” Will, Judicial Responsibility for the Disposition of Litigation, 75 F.R.D. 117, 119 (1976). It is nevertheless appropriate to note, in the context of this discussion that, unlike Link, the case on which appellee principally relies, this is not an old case. In Link, the Supreme Court upheld the dismissal with prejudice of a personal injury claim when plaintiffs counsel failed to appear at a duly scheduled pretrial conference. The Supreme Court made clear that the sanction was justified only in view of the “drawn-out” history of that six year old case (the oldest on the court’s docket) and plaintiff’s counsel’s lame excuse for not attending the conference. The Court concluded that, under those circumstances, it was reasonable to infer that the petitioner had been deliberately proceeding in a dilatory fashion.

Link also rapidly disposed of plaintiff’s contention that dismissal of a plaintiffs claim because of his counsel’s unexcused conduct imposes an unjust penalty on the client. As the court noted:

Petitioner voluntarily chose this attorney as his representative in this action and he cannot now avoid the consequences of the acts of omissions of this freely selected agent. Any other notion would be wholly inconsistent with our system of representative litigation in which each party is deemed bound by the acts of his lawyer-agent and is considered to have “notice of all facts, notice of which can be charged upon the attorney.”

370 U.S. at 633, 82 S.Ct. at 1390; accord Walker v. Sun Ship Inc., 684 F.2d 266, 268-69 (3d Cir.1982).

10 . It is possible that even more disquieting events occurred before the magistrate, but because of the paucity of findings in this record, we have no way of knowing if anything warranting dismissal occurred.

11 . Judge Garth, in his spirited dissent, charges the majority with having “gone a long way to discourage” early judicial intervention and management,” and with “aiding and abetting those whose actions would deny justice by delay" by “failing to support conscientious district court judges who take pride in managing these calendars effectively.” Infra at 761. With respect, Judge Garth has overstated his case. The opinion does not inhibit a district court — in this or any other case — from dismissing with prejudice; it merely recognizes the potentially harsh consequences of dismissal with prejudice and requires the court to consider whether a lesser sanction comports with the interest of justice.