McGowan v. Faulkner Concrete Pipe Co.

• Decision Date: 15 October 1981
• Docket Number: No. 81-4001,81-4001
• Citation: 659 F.2d 554
• Parties: 28 Fair Empl.Prac.Cas. 399, 27 Empl. Prac. Dec. P 32,184 Johnny B. McGOWAN, et al., Plaintiffs-Appellants, v. FAULKNER CONCRETE PIPE COMPANY, Defendant-Appellee. Summary Calendar. . Unit A *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 554

659 F.2d 554

28 Fair Empl.Prac.Cas. 399,

27 Empl. Prac. Dec. P 32,184

Johnny B. McGOWAN, et al., Plaintiffs-Appellants, v. FAULKNER CONCRETE PIPE COMPANY, Defendant-Appellee.

No. 81-4001 Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Unit A ^*

Oct. 15, 1981.

Firnist J. Alexander, Jr., Jackson, Miss., for plaintiffs-appellants.

Christopher A. Shapley, Jackson, Miss., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before GEE, GARZA and TATE, Circuit Judges.

TATE, Circuit Judge:

The plaintiffs appeal the dismissal of their suit for failure to follow orders of the court and want of prosecution, Fed.R.Civ.P. 41(b), and also complain of the denial of class certification. They sue their former employer ("Faulkner") on their own behalf and on behalf of past, present, and future black employees, alleging racially discriminatory employment practices. The relief sought is based both on section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (the "section 1981" claim) and also on Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e et seq. (the "Title VII" claim). We affirm the denial of certification, reverse the order of dismissal, and remand the action to the district court.

The Context Facts

The suit was filed on November 8, 1978.

As a result of the plaintiffs' discovery motion of December, 1978, the defendant Faulkner was eventually ordered on July 16, 1979, to produce certain documents for inspection and copying by the plaintiffs. By agreement between the parties, the documents designated by the plaintiffs' counsel were sent to a commercial copier and copied at a cost to Faulkner of $421.62. When the documents were made available to the plaintiffs' counsel conditioned upon his reimbursement of the copying cost, counsel failed to pay the cost, and the documents were never tendered to the plaintiffs. The plaintiffs' delinquency in this regard was one specific basis for the magistrate's recommended dismissal of the suit for nonprosecution. The other specific bases had to do with the dilatory or delinquent compliance by the plaintiffs' counsel with pretrial orders.

Two pretrial conferences were held. The first was held on May 14, 1980. At this time the parties were ordered to file a pretrial order by 5:00 p. m. the same day and to prenumber and exchange exhibits within seven days. The pretrial order was filed on May 20, 1980, six days late. No exhibits were exchanged.

The second pretrial conference was held on August 1, 1980. Proposed findings of fact and conclusions of law were to be filed August 20, 1980 and exhibits prenumbered and exchanged within thirty days. Trial was set for October 2, 1980 before the magistrate.

On October 1, 1980, Faulkner filed a motion to dismiss the employees' complaint for failure to prosecute or comply with orders of the court, specifically alleging (1) that the plaintiffs had failed to pay the $421.62 copying reimbursement and (2) that the plaintiffs had not yet filed the proposed findings of fact and conclusions of law (ordered to be filed by August 20) nor exchanged prenumbered exhibits with the defendant (ordered to be exchanged by September 4).

The plaintiffs did file the proposed findings of fact and conclusions of law on October 2, 1980, shortly before the hearing on Faulkner's motion to dismiss and before trial was to commence. However, they had neither prenumbered nor exchanged exhibits (nor had the defendant exchanged its exhibit).

The magistrate recommended that the cause be dismissed without prejudice for the following reasons: 1) no depositions had been taken by the plaintiffs, 2) no discovery had been made, 3) the plaintiffs' first pretrial order was filed six days late, 4) no exhibits had been exchanged, 5) the plaintiffs' proposed findings of fact and conclusions of law was filed 43 days late, and 6) the plaintiffs had not paid Faulkner the duplicating bill of $421.62.

The magistrate further recommended sua sponte that the class should not be certified in this case because the plaintiffs had been dilatory and negligent in failing to move for class action certification and were unable financially to maintain a class action suit.

Dismissal Under Rule 41(b)

Rule 41(b) of the Federal Rules of Civil Procedure permits a defendant to move for dismissal when the plaintiff fails to prosecute or to comply with a court order. This court in Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir. 1980) indicated the harshness of this sanction.

Dismissal with prejudice, however, is an extreme sanction that deprives a litigant of the opportunity to pursue his claim. Although on an appeal from the imposition of such a sanction this court will confine its review to a determination of whether the district court abused its discretion, we have consistently held that dismissal with prejudice is warranted only where "a clear record of delay or contumacious conduct by the plaintiff " exists, Durham v. Florida East Coast Railway Co., 385 F.2d 366, 368 (5th Cir. 1967), and "a lesser sanction would not better serve the interests of justice," Brown v. Thompson, 430 F.2d 1214, 1216 (5th Cir. (1970)). See Silas v. Sears, Roebuck & Co., 586 F.2d (382) at 385 (5 Cir. 1978); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), cert. denied, 429 U.S. 1107, 97 S.Ct. 1139, 51 L.Ed.2d 559 (1977); Connolly v. Papachristid Shipping Ltd., 504 F.2d 917, 920 (5th Cir. 1974); Flaksa v. Little River Marine Construction Co., 389 F.2d 885 at 888 (5 Cir. 1968).

610 F.2d at 247 (emphasis added).

Where further litigation on the claim will be time-barred, a dismissal without prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of review is used. Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213 (5th Cir. 1976); Pond v. Braniff Airlines, Inc., 453 F.2d 347, 349 (5th Cir. 1972).

Conversely, the cited decisions indicate, a more lenient standard of review is applicable when the exercise of the discretion to dismiss a suit dilatorily prosecuted will not result in further litigation being time-barred. Faulkner argues that this more lenient standard should be applied here. Faulkner points out that, although further litigation on the Title VII claim is time-barred as a result of the dismissal, the plaintiffs' section 1981 claim, to which a different limitation period applies, will not be time-barred until October, 1982.

In this regard, they point out that the same racially discriminatory employment practice will justify approximately the same recovery and remedies, whether the suit is brought under section 1981 (affording all persons regardless of race the right "to make and enforce contracts" and "the full and equal benefits of all laws and proceedings for the security of persons and property") or under Title VII (providing remedies for employment discrimination based not only on race and color, but also on religion, sex, or national origin). Johnson v. Railway Express Agency, 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). With regard to discriminatory employment practice, "in major part, their remedies are, in fact, similar." Schlei and Grossman, Employment Discrimination Law 639 (1976).

Nevertheless, as Johnson noted, 421 U.S. at 461, 95 S.Ct. at 1721, "the remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent." In rejecting an argument that an erroneous dismissal of a Title VII claim would be harmless error because the same facts alleged supported the dismissal of a section 1981 claim with which it was joined, we noted some differences, some of which afford a more favorable remedy in a Title VII suit and some of which permit recovery under Title VII that would not be permitted on identical facts under section 1981. Crawford v. Western Electric Company, 614 F.2d 1300, 1309 (5th Cir. 1980). Most pertinently to issues raised by the present litigation, for instance, Title VII does "not require a showing of discriminatory motive" and may permit proof of discrimination through "disparate impact on a protected group of a neutral practice", whereas section 1981 "requires a showing of discriminatory intent" in any employment practice alleged to be discriminatory or to have discriminatory impact. Id. See also Schlei and Grossman, supra, 141-42 (1979 Supp.)

We are therefore unable to accept Faulkner's contention that the district judge's discretion to dismiss under Rule 41(b) for failure to prosecute should be reviewed on a less stringent standard than would apply if the dismissal without prejudice did not have the effect of time-barring further litigation. The plaintiffs will be permanently barred from pursuing valuable features of their Title VII claim if the district court's 41(b) dismissal is upheld. We are unwilling to hold that this circuit's rule of stringently reviewing dismissals of the client's claim due to delinquency in prosecution by their counsel should be relaxed because the client is still left with a lesser remedy and one upon which, under certain facts, he is unlikely to recover.

As earlier summarized, in instances where the claim is dismissed with prejudice or will be time-barred as the result of the dismissal, "(o)ur circuit permits dismissal for failure to prosecute only in cases of intentional misconduct." Caldwell v. Martin Marietta Corp., 632 F.2d 1184, 1189 (5th Cir. 1980). The procedural history of the case should be examined in weighing the "power of the trial court to achieve the orderly and expeditious disposition of cases against the policy of law favoring disposition of litigation on the merits." Lopez v. Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (...