86 F.3d 37 (2nd Cir. 1996), 293, Dodson v. Runyon

Docket Nº:293, Docket 95-6035.
Citation:86 F.3d 37
Party Name: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.
Case Date:June 12, 1996
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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86 F.3d 37 (2nd Cir. 1996)

Prac. Dec. P 44,120,

34 Fed.R.Serv.3d 1505

Thomas DODSON, Plaintiff-Appellant,


Marvin RUNYON, Postmaster General for the U.S. Postal

Service, Defendant-Appellee.

No. 293, Docket 95-6035.

United States Court of Appeals, Second Circuit

June 12, 1996

Argued Oct. 3, 1995.

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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.


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

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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.



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...

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