Dodson v. Runyon

Decision Date12 June 1996
Docket NumberD,No. 293,293
Parties71 Fair Empl.Prac.Cas. (BNA) 65, 68 Empl. Prac. Dec. P 44,120, 34 Fed.R.Serv.3d 1505 Thomas DODSON, Plaintiff-Appellant, v. Marvin RUNYON, Postmaster General for the U.S. Postal Service, Defendant-Appellee. ocket 95-6035.
CourtU.S. Court of Appeals — Second Circuit

Antonio Mareno, Yorktown Heights, NY, for Plaintiff-Appellant.

James L. Cott, Assistant United States Attorney, New York City (Mary Jo White, United States Attorney for the Southern District of New York, Steven M. Haber, Assistant United States Attorney, New York City, of counsel), for Defendant-Appellee.

Before: WINTER, JACOBS, and LEVAL, Circuit Judges.

LEVAL, Circuit Judge:

Thomas Dodson, acting pro se, brought a complaint alleging that he was terminated from his job with the United States Postal Service because of his race, in violation of 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII") and 42 U.S.C. § 1981. Although he attempted energetically to prosecute his case while he was pro se, all progress ceased when he retained an attorney. Eventually, the district court granted the government's motion to dismiss for failure to prosecute. See Fed.R.Civ.P. 41(b). We find that the district court erred by failing to consider lesser sanctions and other relevant factors before imposing the severe penalty of dismissal. We therefore vacate, and remand for further proceedings.

Background

Dodson was a probationary employee at the Post Office in Croton-on-Hudson, New York. He was terminated from this position in May 1985, as a result of an unfavorable evaluation, which he alleges was motivated by racial animus. Proceeding pro se and in forma pauperis, Dodson pressed his claims vigorously. He began by filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). When the EEOC rejected his claims, Dodson received a right-to-sue letter and promptly filed a complaint in the United States District Court for the Southern District of New York on June 15, 1987. The district court dismissed the complaint because Dodson had named the Postal Service as defendant rather than naming the Postmaster General.

Still proceeding pro se, Dodson filed a motion pursuant to Fed.R.Civ.P. 60(b), seeking an order "relieving him from the judgment entered in this Court on June 28, 1988, and for the entry of a new judgment that will allow him to perfect an appeal to the Court of Appeals." In response to this motion and an intervening change of law, the government modified its earlier position that Dodson was barred on statute of limitations grounds from amending his complaint to correct the pleading error. The district court denied Dodson's Rule 60(b) motion, but vacated its prior order in part, giving Dodson thirty days to amend his complaint.

On May 1, 1989, Dodson filed an amended complaint. The government answered on May 9. The parties then commenced discovery. The government served interrogatories and document requests in July, and noticed Dodson's deposition for October 24, 1989. Still unrepresented, Dodson appeared and gave his deposition.

Dodson then retained counsel, Antonio Mareno, Esq. In May of 1990, Mareno served a deposition subpoena on the government, seeking the testimony of Frank Ozimek, Dodson's supervisor at the time of his discharge. Although Ozimek was no longer employed by the federal government, the government nevertheless arranged for him to be deposed. The deposition was taken on June 20, 1990. So far as the record reflects, that was virtually the last step Mareno took to advance his client's case.

Over two years later, on September 8, 1992, the government wrote to the trial judge pursuant to his rules seeking permission to file a motion to dismiss the action for failure to prosecute, or for summary judgment. Neither the district court nor Dodson's attorney responded to this letter. In January 1993, the government filed its motion to dismiss. Dodson's lawyer filed papers in opposition, but took no further steps to prosecute the case while the motion remained sub judice for two years. In February of 1995, the trial judge granted the government's motion, and dismissed Dodson's claim pursuant to Fed.R.Civ.P. 41(b) for failure to prosecute. Dodson appealed.

Discussion
I.

A problem repeatedly faced by trial courts in exercising their discretionary control over case management is how to sanction dilatory conduct by litigants. When delay is caused by a plaintiff, the defendant often seeks dismissal of the cause of action as a sanction.

The selection of the appropriate sanction, including dismissal for failure to prosecute, is a matter consigned to the discretion of the district court, Link v. Wabash R.R. Co., 370 U.S. 626, 633, 82 S.Ct. 1386, 1390, 8 L.Ed.2d 734 (1962); Alvarez v. Simmons Mkt. Research Bureau, Inc., 839 F.2d 930, 932 (2d Cir.1988), and we review the district court's ruling for abuse of that discretion, Nita v. Connecticut Dep't of Envtl. Protection, 16 F.3d 482, 485 (2d Cir.1994). We have long recognized that dismissal is a harsh remedy, not to be utilized without a careful weighing of its appropriateness. 1 And, we have repeatedly noted that one of the factors that should inform a trial court's decision is the suitability of lesser sanctions. See, e.g., Colon, 56 F.3d at 7; Jackson, 22 F.3d at 74; Nita, 16 F.3d at 485. "The remedy [of dismissal] is pungent, rarely used, and conclusive. A district judge should employ it only when he is sure of the impotence of lesser sanctions." Chira, 634 F.2d at 665 (footnote omitted).

This is not, of course, the only relevant consideration, though it is a very important one. We have listed various factors as pertinent to the question whether dismissal is an appropriate remedy, including:

" the duration of the plaintiff's failures, whether plaintiff had received notice that further delays would result in dismissal, whether the defendant is likely to be prejudiced by further delay, whether the district judge has taken care to strike the balance between alleviating court calendar congestion and protecting a party's right to due process and a fair chance to be heard, and whether the judge has adequately assessed the efficacy of lesser sanctions."

Alvarez, 839 F.2d at 932 (quoting Harding, 707 F.2d at 50) (internal quotations omitted). No single factor is ordinarily dispositive. Nita, 16 F.3d at 485.

In deciding on the suitability of lesser sanctions, and whether the sanctions should be aimed primarily against the party or the attorney, it can be important for the district court to assess the relative roles of attorney and client in causing the delay, as well as whether a tactical benefit was sought by the delay. In making this statement, we are cognizant of the fact that a client is ordinarily bound by the acts of his lawyer, and this--of course--extends to behavior that would justify a dismissal for failure to prosecute. Link, 370 U.S. at 633-34 & n. 10, 82 S.Ct. at 1390 & n. 10; cf. Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 396-98, 113 S.Ct. 1489, 1499, 123 L.Ed.2d 74 (1993). 2 Nothing we say today contradicts that basic principle. This principle, however, does not relieve the district court of the obligation to consider the relevant factors before dismissing an action--especially the suitability of lesser sanctions. When the district court considers the appropriate sanction for failure to prosecute an action, the more the delay was occasioned by plaintiff's personal obstruction, or was designed to benefit the plaintiff's strategic interests, the more suitable the remedy of dismissal. Conversely, the more the delay was occasioned by the lawyer's disregard of his obligation toward his client, the more this factor argues in favor of a less drastic sanction imposed directly on the lawyer.

Numerous circuits, with the support of leading commentators, have indicated that, at least absent prejudice, dismissal for failure to prosecute is inappropriate where the fault clearly lay in the lawyer's failure to attend to his client's business, and the court failed to consider alternative sanctions. Hillig v. Commissioner, 916 F.2d 171, 174 (4th Cir.1990); Shea v. Donohoe Constr. Co., 795 F.2d 1071, 1077-78 (D.C.Cir.1986); In re Hill, 775 F.2d 1385, 1387 (9th Cir.1985) (per curiam); In re Russell, 746 F.2d 1419, 1420 (10th Cir.1984) (per curiam); Rogers v. Kroger Co., 669 F.2d 317, 321-23 (5th Cir.1982); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980); Moore v. St. Louis Music Supply Co., 539 F.2d 1191, 1193 & n. 2 (8th Cir.1976); see also Ball v. City of Chicago, 2 F.3d 752, 758 (7th Cir.1993); 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure §§ 2369 nn. 74-76 (1971). 3 We have long-suggested imposing sanctions directly on dilatory lawyers in appropriate cases, and we continue to commend to our district judges this "sound practice." Ball, 2 F.3d at 758. See Litton Sys. Inc. v. AT & T Co., 700 F.2d 785, 828 (2d Cir.1983), cert. denied, 464 U.S. 1073, 104 S.Ct. 984, 79 L.Ed.2d 220 (1984); Cine Forty-Second St. Theatre Corp. v. Allied Artists, 602 F.2d 1062, 1069 (2d Cir.1979) (Oakes, J., concurring); Schwarz v. United States, 384 F.2d 833, 836 (2d Cir.1967); cf. Baker v. Latham Sparrowbush Assocs., 72 F.3d 246, 253 (2d Cir.1995). 4

Of course, other factors may also be relevant, including those set forth in Alvarez. In particular, where opposing parties are found to have been meaningfully prejudiced by a plaintiff's delay, this factor speaks strongly in favor of dismissal, and may well override the hardship to plaintiff. See Shea, 795 F.2d at 1074-75.

II.

In this case, some of the pertinent factors seem to favor dismissal; others appear to favor a lesser sanction. But none of the relevant factors were considered by the district court.

Most importantly, although a number of alternative remedies were available, see Shea, 795 F.2d at 1078-79 (describing possible alternative...

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