Commercial Litigation and Arbitration

Dismissal for Failure to Prosecute — Factors — 5½ Months Too Short — Standard Order’s Boilerplate Warning of Sanctions Does Not Provide Sufficient Warning of Dismissal

Carpenter v. City of Flint, 2013 U.S. App. LEXIS 15102 (6th Cir. July 25, 2013):

Under this court's precedent, we consider four factors when determining whether dismissal for failure to prosecute was within the district court's discretion:

(1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were imposed or considered before dismissal of the action.

Mulbah, 261 F.3d at 589. Although we acknowledge that Carpenter's counsel's conduct in pursuing his client's claims was inept, improper, and unprofessional,

Footnote 1. Indeed, Carpenter's counsel has continued his pattern of inflammatory language and noncompliance with procedural filing rules. See Fed. R. App. P. 32(a)(5)(A) (requiring proportionally spaced typeface in briefs to be 14-point or larger).

applying the four-factor test outlined above leads us to conclude that the district court abused its discretion in dismissing the case with prejudice.

A. Willfulness, Bad Faith, or Fault

The first factor--whether the party's failure is due to willfulness, bad faith, or fault--requires "a clear record of delay or contumacious conduct." Freeland v. Amigo, 103 F.3d 1271, 1277 (6th Cir. 1997). Contumacious conduct refers to behavior that is "'perverse in resisting authority' and 'stubbornly disobedient.'" Schafer v. City of Defiance Police Dep't, 529 F.3d 731, 737 (6th Cir. 2008) (quoting Webster's Third New International Dictionary 497 (1986)). The plaintiff's "conduct 'must display either an intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct on those proceedings.'" Wu, 420 F.3d at 643 (quoting Mulbah, 261 F.3d at 591).

The conduct at issue here includes (i) repeated failures to abide by local rules requiring filings to be double-spaced and submitted electronically; (ii) delays in responding to Defendants' motion to strike; (iii) failure, within a five-and-a-half-month period, either to file a motion for default judgment after Defendants did not timely file a responsive pleading or otherwise to move the litigation forward through stipulating to a second amended complaint. These first two oversights--repeated noncompliance with local filing rules and a delayed response to Defendants' motion to strike--are less egregious than the types of conduct that we have held reflect a clear record of contumacious conduct warranting dismissal. Unlike other cases where we have affirmed sua sponte dismissals, Carpenter and his counsel have not failed to appear at scheduled pretrial conferences, see Rogers v. City of Warren, 302 F. App'x 371, 377 (6th Cir. 2008); Cotson v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir. 1986), nor have they failed to respond to discovery requests, see Harmon v. CSX Transp., Inc., 110 F.3d 364, 368 (6th Cir. 1997), nor have they "acted in contempt of a court order compelling cooperation with such requests." Mulbah, 261 F.3d at 592.

Instead, the circumstances in this case are analogous to other cases in which we held that dismissal with prejudice was an abuse of discretion. For example, in Patterson, we reversed the district court's dismissal with prejudice, even after counsel failed to comply with procedural rules, failed to submit documents according to court-ordered deadlines, failed to initiate any discovery, and submitted answers to interrogatories four and a half months late. See Patterson, 760 F.2d at 687. Although the Patterson court "sympathize[d] entirely with the district court's frustration under the circumstances," the court concluded that it was an abuse of discretion to deprive the plaintiff of his day in court. Id. at 689. Our past cases have distinguished between "mere dilatory conduct involving a failure to file a specified document" and the more egregious problem of an "attorney's failure to appear on repeated occasions," and we repeatedly have reversed dismissals where the misconduct fell into the former, less egregious, category. Cotson, 789 F.2d at 379; see Mulbah, 261 F.3d at 592-93; Stough, 138 F.3d at 615 ("While a pattern of this type of behavior [failing to timely file responses to motions] may be sanctionable, it does not tax the court's time in the same manner as failing to appear for court conferences."). Carpenter's counsel's delayed filings and violations of local rules fall into the less egregious category, and accordingly, these infractions and missteps do not demonstrate a clear record of contumacious conduct warranting dismissal with prejudice.

The third indication of a failure to prosecute cited by the district court was the period of inactivity on the docket. The district court faults Carpenter for the lack of docket activity in the five-and-a-half-month period between February 15, 2012, when the court denied Defendants' motion to strike, and July 31, 2012, when the order to show cause was entered. R. 26 (Order Dismissing Case at 3) (Page ID #137). Once the Defendants' motion to strike was denied, the operative pleading was the amended complaint. Accordingly, the next stage in the litigation was for Defendants to file a responsive pleading or another Rule 12 motion within fourteen days. See Fed. R. Civ. P. 12(a)(4)(A). Defendants failed to file a responsive pleading, although there were negotiations between the parties regarding filing a stipulation permitting Carpenter to file a second amended complaint. See R. 24-2 (Feb. 27, 2012 Letter from City Attorney Thomas Kent to Anthony Lubkin) (Page ID #120); R. 24-3 (Email Correspondence) (Page ID #122-26). These negotiations apparently broke down, and each party blames the other for a failure to communicate and finalize a proposed stipulation. Compare R. 24 (Def. City of Flint's Reply to Order to Show Cause at 2) (Page ID #116) (asserting that Carpenter's counsel stopped communicating with Defendants' counsel regarding the proposed stipulation), with R. 23 (Pl.'s Resp. to Order to Show Cause at 3-4) (Page ID #110-11) (arguing that Flint failed to finalize the proposed stipulation during May and June of 2012, and that Flint's counsel failed to communicate with Carpenter's counsel during that time). We need not take sides regarding which party was more at fault regarding the lack of cooperation. Both parties had the option of making the appropriate filings to move the case along. Given Defendants' failure to file a responsive pleading, Carpenter could have filed a motion for default judgment or a motion for leave to amend the complaint. See Fed. R. Civ. P. 15(a)(2), 55. As Defendants concede, they could have refiled their motion to strike or filed a motion seeking a scheduling order regarding the amended pleadings. See R. 24 (Def. City of Flint's Reply to Order to Show Cause at 2) (Page ID #116). The district court sided with Defendants, and placed all of the blame on Carpenter and his counsel. R. 26 (Order Dismissing Case at 3) (Page ID #137).

Even assuming that Carpenter and his counsel were fully at fault for the lack of docket activity for over five and a half months, we have found abuses of discretion in other cases dismissed by district courts in which plaintiffs behaved similarly to Carpenter and his counsel. For example, in Little v. Yeutter, there was a four-and-a-half month period where plaintiff "had taken no discovery; filed no dispositive motions; failed to request a hearing on this matter; and failed to respond to offers of compromise." 984 F.2d 160, 161 (6th Cir. 1993). We reversed the district court's dismissal for failure to prosecute, concluding that although "it could be argued that [plaintiff] should have done more," there was only "minimal evidence of contumacious conduct." Id. at 163. Similarly, in Carter, we reversed a dismissal for failure to prosecute despite a delay of over four months in which plaintiff's counsel "failed to engage in discovery, to discuss settlement, and to file appropriate pre-trial orders in a timely fashion as ordered by the court." Carter, 636 F.2d at 161. Despite the fact that plaintiff's "attorney's efforts . . . were wholly insufficient," we held that it was an abuse of discretion to dismiss the case and deprive the "blameless" plaintiff of a trial. Id. And in Kemp v. Robinson, this court in an unpublished decision reversed a dismissal by a district court when plaintiff's counsel had waited nearly three years before filing a motion for default judgment against defendants. 262 F. App'x 687, 691 (6th Cir. 2007) (explaining that "[w]hile it is apparent from the record that Kemp's attorney . . . could have been more diligent in filing the motion for default judgment," the record did not show that the attorney "willfully h[e]ld up the proceedings to gain a tactical advantage"). Accordingly, while Carpenter's counsel could have done more between February and July either to stipulate to amend the complaint or to file a motion for default judgment, we conclude that the five-and-a-half-month period of delay does not establish the kind of contumacious conduct or clear record of delay warranting dismissal. Thus, the first factor weighs against dismissal.

Footnote 3. Other courts of appeals, considering the specific circumstances of particular cases, have reversed dismissals for failure to prosecute after even longer periods of delay. See, e.g., García-Pérez, 597 F.3d at 7-8 (reversing sua sponte dismissal with prejudice even after plaintiffs delayed three years in producing expert report); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 251 (2d Cir. 2004) (reversing dismissal with prejudice despite plaintiff's seventeen-month delay in filing amended complaint, disagreeing with the district court "that the circumstances were sufficiently egregious . . . as to warrant dismissal"); GCIU Emp'r Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1199-1200 (7th Cir. 1993) (reversing dismissal even after a twenty-two month period of inactivity on the docket during which the parties failed to apprise the district court that settlement negotiations were ongoing). The delay at issue in this case is not nearly as long as the delays which the Supreme Court has held warrant dismissal. See [*19] Link, 370 U.S. at 628 n.2, 633 (holding that dismissal was proper after, among other things, plaintiffs delayed over eighteen months in responding to interrogatories); cf. Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (holding that dismissal was proper sanction under Rule 37 where respondents failed to answer interrogatories for seventeen months).

B. Prejudice

The second factor to examine is whether Defendants were prejudiced by Carpenter's counsel's conduct. Mulbah, 261 F.3d at 589. A defendant is prejudiced by a plaintiff's dilatory conduct if the defendant is "required to waste time, money, and effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide." Harmon, 110 F.3d at 368. ***

C. Notice

The third factor to consider when determining whether the district court abused its discretion in dismissing a case for failure to prosecute is "whether the dismissed party was warned that failure to cooperate could lead to dismissal." Mulbah, 261 F.3d at 589. The district court first cites two notices of failure to comply that were issued following Carpenter's counsel's attempts manually to file documents. R. 26 (Order Dismissing Case at 1-2) (Page ID #135-36). These notices stated that "[s]anctions may be imposed if additional violations occur after this date." R. 12 (Notice of Failure to Comply) (Page ID #71); R. 17 (Notice of Failure to Comply) (Page ID #91). This kind of boilerplate language, which does not explicitly identify dismissal as a sanction, is not the type of notice sufficient to apprise a party of the possibility of dismissal. See Freeland, 103 F.3d at 1279 ("[T]his court has held that routine language in a standard order, warning counsel of possible dismissal as a sanction for failure to comply with any of the provisions of the order, is not necessarily sufficient prior notice to immediately warrant the extreme sanction of dismissal.").

D. Alternative Sanctions


We have held that "'[t]he sanction of dismissal is appropriate only if the attorney's actions amounted to failure to prosecute and no alternative sanction would protect the integrity of the pretrial process.'" Wu, 420 F.3d at 644 (quoting Mulbah, 261 F.3d at 589) (emphasis in original); see also Consolidation Coal Co. v. Gooding, 703 F.2d 230, 232-33 (6th Cir. 1983) ("'[D]ismissal with prejudice is warranted only where . . . a lesser sanction would not better serve the interests of justice.'" (quoting Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980))); Charles Alan Wright et al., 9 Fed. Practice & Proc. Civil § 2369 [*26] (3d ed.) ("[T]he federal courts have held fairly consistently that, except in extreme circumstances, a court should first resort to the wide range of lesser sanctions that it may impose upon a litigant or the litigant's attorney, or both, before ordering a dismissal with prejudice."). Alternative sanctions may include "levying a fine, barring [counsel] from participating in oral argument, or any other disciplinary action," even dismissal without prejudice. Mulbah, 261 F.3d at 593. Although a district court in extreme cases has the power to dismiss [**14] with prejudice as the first and only sanction, "where the district court has not manifested consideration of less drastic sanctions, it is more difficult, although not impossible, for this court to conclude that the district court exercised its discretion with appropriate forethought." Harmon, 110 F.3d at 368-69.

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