Commercial Litigation and Arbitration

Importance of Considering Lesser Sanctions Where Central Blame Lay with Strategic Decisions of Counsel — General Inappropriateness of Penalizing Blameless Client for Attorney’s Behavior (Good Quotes)

Flores v. Ethicon, Inc., 2014 U.S. App. LEXIS 5751 (4th Cir. Mar. 28, 2014) (Wynn, J., concurring that the district court acted within its discretion in dismissing the case without prejudice as a sanction for Plaintiffs' refusal to comply with the district court's pretrial discovery procedures, but dissenting from the lower court’s denial of Plaintiffs' Rule 59(e) motion to reconsider the dismissal and reinstate the case because, by the date of their motion, Plaintiffs had remedied the discovery defect, which was the sole basis for dismissal, and the statute of limitations likely barred refiling):

Why would the district court, having determined that there was insufficient evidence to dismiss the case with prejudice at a time when Plaintiffs' discovery remained outstanding, refuse to reinstate the case once the discovery had been served? What did the district court mean when it dismissed the case without  prejudice? Without prejudice to what, if not reinstatement? Nothing in the record suggests a satisfactory answer to these questions. Nothing occurred between the dismissal without prejudice and the order denying reinstatement to explain the district court's abrupt change of heart.

These unanswered questions are especially concerning in light of the district court's suggestion that central blame for the dismissal lay with "strategic decisions made by the plaintiffs' counsel." J.A. 438. We have long recognized that, in granting judgment against a party based on the failings of counsel, the court should first carefully consider the availability of less severe sanctions. See, e.g., Hillig [, 916 F.2d at 174 [Hillig v. Comm'r of Internal Revenue, 916 F.2d 171, 174 (4th Cir. 1990)] ("A dismissal sanction is usually inappropriate when it unjustly penalizes a blameless client for the attorney's behavior."); Reizakis, 490 F.2d at 1135 [Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir. 1974)] ("Rightfully, courts are reluctant to punish a client for the behavior of his lawyer."). Here, there is no evidence the district court considered lesser sanctions.

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