89 F.3d 838 (7th Cir. 1996), 92-3460, Patterson v. Rubin

Citation89 F.3d 838
Party NameStephanie A. PATTERSON, Plaintiff-Appellant, v. Robert RUBIN, [1] Lawrence B. Gibbs, Thomas J. Yates, Gerald W. Wendel, Peggy R. Crook, John Marvel, James W. Phend, Stan Collins, Debra Green, Joanne M. Katchur, James E. Rogers, Jr., and Delores L. Rozzi, Defendants-Appellees.
Case DateApril 30, 1996
CourtUnited States Courts of Appeals, U.S. Court of Appeals — Seventh Circuit

Page 838

89 F.3d 838 (7th Cir. 1996)

Stephanie A. PATTERSON, Plaintiff-Appellant,

v.

Robert RUBIN, 1 Lawrence B. Gibbs, Thomas J. Yates, Gerald W. Wendel, Peggy R. Crook, John Marvel, James W. Phend, Stan Collins, Debra Green, Joanne M. Katchur, James E. Rogers, Jr., and Delores L. Rozzi, Defendants-Appellees.

No. 92-3460.

United States Court of Appeals, Seventh Circuit

April 30, 1996

Submitted April 25, 1996. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA7 Rule 53 regarding use of unpublished opinions)

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. 88-C-1311; Larry J. McKinney, Judge.

S.D.Ind., 131 F.R.D. 679.

AFFIRMED.

Before POSNER, Chief Judge, and MANION and KANNE, Circuit Judges.

ORDER

Stephanie Patterson, a former employee of the Internal Revenue Service, filed suit against the Secretary of the Treasury and individual defendants for employment discrimination and other statutory violations. The district court dismissed the suit for failure to prosecute, Fed.R.Civ.P. 41(b), and Patterson appeals. We affirm.

Rule 41(b) states, "For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action...." We review a district court's dismissal under Rule 41(b) for abuse of discretion. Johnson v. Kamminga, 34 F.3d 466, 468 (7th Cir.1994),cert. denied, 115 S.Ct. 1373 (1995). We will reverse "only if it is plain either that the dismissal was a mistake or that the judge did not consider factors essential to the exercise of a sound discretion." Ball v. City of Chicago, 2 F.3d 752, 755 (7th Cir.1993). "Because district judges have a better understanding of their litigants and their docket, review of managerial decisions such as this one are appropriately deferential," Johnson, 34 F.3d at 468, but the "drastic nature of a dismissal with prejudice requires the action to be used 'only in extreme situations, when there is a clear record of delay or contumacious conduct....' " GCIU Employer Retirement Fund v. Chicago Tribune, 8 F.3d 1195, 1199 (7th Cir.1993) (quoting Pyramid Energy, Ltd. v. Heyl & Patterson, Inc., 869 F.2d 1058, 1061 (7th Cir.1989) (original emphasis)); see also In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir.1995) (per curiam).

Because this appeal involves lack of prosecution, we review the course of the litigation. Halas v. Consumer Services, Inc., 16 F.3d 161, 162 (7th Cir.1994); GCIU, 8 F.3d at 1199. Patterson filed her complaint in November, 1988 and the litigation proceeded, although Patterson had difficulty with court-appointed counsel and made numerous pro se filings during periods in which she was represented by counsel. 2 After the district court granted her third court-appointed counsel's petition to withdraw in June, 1991, Patterson proceeded pro se. She failed to appear for her deposition on September 12, 1991, never offering the district court an explanation for the delinquency. She also failed to appear at the scheduled final pre-trial conference on October 24, 1991, but she had submitted a "Notice of Nonappearance" on the previous afternoon. 3 Subsequently, on October 30 defendants filed their first motion to dismiss for failure to prosecute, citing Patterson's failure to attend the pre-trial conference, her failure to obey the court's orders regarding discovery, and her failure to attend her deposition. 4 The motion was denied, but the court specifically warned Patterson that her action could be subject to dismissal if she did not attend her rescheduled deposition.

At the rescheduled final pre-trial conference on January 6, 1992, Patterson departed early without permission of the court and failed to heed the court's request that she return. The conference was adjourned because the court was unable to proceed in the plaintiff's absence. A three-hour pre-trial conference was held February 7, but Patterson subsequently refused to sign the pre-trial entry the court requested defendants to prepare. Consequently, the court was unable to file an approved pre-trial order. See Local Rule 16.1. According to defendants, she also failed to attend scheduled document production and failed to make alternate arrangements to review the materials she had requested.

On April 16, Patterson obeyed the court's September 16 order to answer defendants' interrogatories, but she refused to answer at least one question and submitted it "to Chief Judge Gene E. Brooks for review and advisement." Later that month, Patterson attended her deposition on April 29, but, contrary to the court's instructions, left before the beginning of the deposition to speak to the district judge about the magistrate judge's resolution of a dispute about oath-taking procedures. 5 The magistrate judge recommended that the defendants move for dismissal for failure to comply with discovery, 6 but defendants declined to do so because Patterson returned later that day and gave her deposition.

At the final pre-trial conference on June 25, Patterson "initiated a protracted discussion of and objection to the actions of opposing counsel at the deposition." As counsel began to answer her accusations, Patterson stated that she had to go home and take her medication or she might faint, and that she did not know when or if she might return. The magistrate judge concluded, "The course of the plaintiff's participation at this Magistrate's conferences has been to participate only to the extent ordered to do so and to terminate the conferences as it suited her own whim. Under the circumstances, the Magistrate concludes that plaintiff declines to participate in this Court's pre-trial process and chooses to follow this Court's Rules and Orders as she...

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