Bluestein & Co., Matter of

• Decision Date: 26 October 1994
• Docket Number: No. 92-4100,92-4100
• Citation: 68 F.3d 1022
• Parties: In the Matter of BLUESTEIN & COMPANY, d/b/a Zemel's Terralyn Farms, Debtor-Appellee. Appeal of Alan E. HOFFMAN, individually and as a shareholder of Bluestein & Company.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1022

68 F.3d 1022

32 Fed.R.Serv.3d 1136

In the Matter of BLUESTEIN & COMPANY, d/b/a Zemel's Terralyn

Farms, Debtor-Appellee.

Appeal of Alan E. HOFFMAN, individually and as a shareholder

of Bluestein & Company.

No. 92-4100.

United States Court of Appeals, Seventh Circuit.

Submitted Oct. 26, 1994. ^*

Decided Oct. 26, 1995.

Gerald A. Goldman, Chicago, IL, Robert L. Caplan, Clarendon Hills, IL, for Appellant.

Paul Bluestein, Steger, IL, for Appellee.

Before FAIRCHILD, FLAUM, and KANNE, Circuit Judges.

PER CURIAM.

Alan Hoffman appealed two bankruptcy court decisions to district court. Five months later, due to Hoffman's lengthy delay in filing his Appellant's Brief, the district court dismissed his appeal for want of prosecution. Hoffman appeals to this court, arguing that the district court abused its discretion by dismissing the appeal without having warned his attorney in advance.

I. HISTORY

On May 5, 1992, Alan Hoffman filed notice of his appeal of two bankruptcy court decisions to the United States District Court for the Northern District of Illinois. The district court directed that he was to file an Appellant's Brief on or before June 24. By October, Hoffman had neither filed his brief nor requested additional time in which to do so. Desiring an explanation for the delay, the district court placed the matter on status call, and a status hearing was set for October 30, 1992. At the hearing, Hoffman's attorney--apparently accustomed to a more permissive atmosphere--requested an additional twenty-one days in which to file his brief. Understandably displeased with the delay and additional request for time, the district court dismissed the case sua sponte for want of prosecution and rebuked Hoffman's attorney:

... I didn't get [a brief] in June, I didn't get one in July, I didn't get one in August, I didn't get one in September. And, in fact, I'm not going to get one in October, because you're coming in here after I had to go to the effort of having my minute clerk issue a minute order calling you in here, and you then come in and say, "Oh, I need 21 days."

Well, you had your time. This appeal is dismissed for want of prosecution. There is no good basis, and you articulated no good basis for your failure to comply with the orders or to move for an extension of time....

The appeal is dismissed.

On November 9, 1992, Hoffman filed a motion to vacate the dismissal order. The motion represented that the delays were not caused by Hoffman; that the delays were caused by the inability of Hoffman's attorney, a sole practitioner, to bear his workload; that the attorney was willing to accept reasonable sanctions for his delays; and that the Appellant's Brief had been completed and was ready to be filed. The district court denied the motion, and Hoffman appeals the dismissal.

II. ANALYSIS

District courts possess the inherent authority to dismiss a case sua sponte for want of prosecution as part of the "control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962). In exercising this authority, the district courts must "perpetually balance the competing interests of keeping a manageable docket against deciding cases on their merits." GCIU Employer Retirement Fund v. Chicago Tribune, 8 F.3d 1195, 1199 (7th Cir.1993) (citing Webber v. Eye Corp., 721 F.2d 1067, 1071 (7th Cir.1983)). Dismissal for want of prosecution is an undeniably harsh sanction, having the procedural effect of an adjudication on the merits against the plaintiff. See FED.R.CIV.P. 41(b). This severity requires that district courts resort to dismissal "only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailable." GCIU, 8 F.3d at 1199 (quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989)) (emphasis omitted).

In light of the district courts' need to maintain effective control over their dockets, their exercise of this inherent authority demands our deference. As a result, we review a district court's dismissal for want of prosecution only for an abuse of discretion. Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1373, 131 L.Ed.2d 228 (1995); Halas v. Consumer Services, Inc., 16 F.3d 161, 163 (7th Cir.1994); GCIU, 8 F.3d at 1199. Applying this standard, reversal is warranted only if the district court's decision "strike[s] us as fundamentally wrong," Anderson v. United Parcel Service, 915 F.2d 313, 315 (7th Cir.1990), or if "it is clear that no reasonable person could concur in the trial court's assessment of the issue under consideration," Daniels v. Brennan, 887 F.2d 783, 785 (7th Cir.1989) (citing 3 Penny Theater Corp. v. Plitt Theatres, Inc., 812 F.2d 337, 339 (7th Cir.1987)).

Hoffman argues that the district court abused its discretion by, among other things, failing to warn his attorney prior to dismissing the appeal. In Link v. Wabash R.R. Co., the Supreme Court held that the absence of express notice prior to a dismissal for want of prosecution does not automatically violate a plaintiff's right to due process. 370 U.S. at 632-33, 82 S.Ct. at 1389-90. Rather, the decision whether to give advanced warning of dismissal is entrusted to the sound discretion of the district court. Id.; Johnson, 34 F.3d at 468; Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.1991).

The Link Court went on, however, to explain that the appropriateness of notice "turns, to a considerable extent, on the knowledge which the circumstances show such party may be taken to have of the consequences of his own conduct." 370 U.S. at 632, 82 S.Ct. at 1389-90. In other words, the necessity of advanced warning varies inversely with the plaintiff's or his attorney's cognizance and appreciation of the threat of dismissal. Thus, where a plaintiff brings an action pro se, and so is particularly in need of the court's patience and instruction, this court has consistently held that a district court must give explicit warning prior to dismissing the case for want of prosecution. See, e.g., Penny v. Shansky, 884 F.2d 329, 330 (7th Cir.1989); Palmer v. City of Decatur, 814 F.2d 426, 428 (7th Cir.1987); Schilling v. Walworth County Park & Planning Comm'n, 805 F.2d 272, 277 (7th Cir.1986). ¹

On the other hand, we have indicated that reversal for failure to give prior warning is not warranted in those extreme cases where "it is plain that the plaintiff's lawyer knew that he faced dismissal of his case." Ball v. City of Chicago, 2 F.3d 752, 756 (7th Cir.1993). To require a perfunctory warning in every case, without consideration of an attorney's awareness of the likelihood of dismissal, "would in effect be granting each litigant one opportunity to disregard the court's schedule without fear of penalty regardless of the harm to other litigants." Johnson, 34 F.3d at 468.

But extreme cases are few and far between. ² Not only must plaintiff's attorney have knowledge of the fact that dilatory conduct may result in dismissal of the action, but the attorney must appreciate the imminent threat that dismissal is likely. As a result, we have held that in all but the most egregious of circumstances, the proper exercise of district court discretion is to dismiss an action for want of prosecution only after giving "due warning" to plaintiff's counsel. Ball, 2 F.3d at 755. The Link Court made clear that a plaintiff is deemed to be culpable for the actions of, and to have notice of all facts charged to, a freely selected agent. 370 U.S. at 633-34, 82 S.Ct. at 1390. Accordingly, the due warning need only be directed to the plaintiff's attorney, and not to the plaintiff directly. Ball, 2 F.3d at 756. See also Otis v. City of Chicago, 29 F.3d 1159, 1168 (7th Cir.1994); United States v. Golden Elevator, Inc., 27 F.3d 301, 306 (7th Cir.1994) (Wood, J., dissenting).

This court has explained that due warning "need not be repeated warnings and need not be formalized in a rule to show cause." Ball, 2 F.3d at 755. Similarly, the district court's responsibility to warn does not require the firing of a "warning shot," i.e., levying less severe sanctions prior to resorting to dismissal for want of prosecution. Johnson, 34 F.3d at 468; Halas, 16 F.3d at 165; Profile Gear Corp. v. Foundry Allied Indus., 937 F.2d 351, 354 (7th Cir.1991) (quoting Hal Commodity Cycles Management Co. v. Kirsh, 825 F.2d 1136, 1139 (7th Cir.1987)). However, a district court's standing order that failure to abide by the court's schedule may result in dismissal is insufficient to apprise plaintiff's counsel of any imminent threat--due warning must be direct and explicit. See Ball, 2 F.3d at...