Callip v. Harris County Child Welfare Dept.

• Decision Date: 27 March 1985
• Docket Number: No. 84-2506,84-2506
• Citation: 757 F.2d 1513
• Parties: 37 Fair Empl.Prac.Cas. 966, 36 Empl. Prac. Dec. P 35,203, 1 Fed.R.Serv.3d 972 Bennie M. CALLIP, Plaintiff-Appellant, v. HARRIS COUNTY CHILD WELFARE DEPARTMENT, et al., Defendants, George Ford, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1513

757 F.2d 1513

37 Fair Empl.Prac.Cas. 966,

36 Empl. Prac. Dec. P 35,203, 1 Fed.R.Serv.3d 972

Bennie M. CALLIP, Plaintiff-Appellant, v. HARRIS COUNTY CHILD WELFARE DEPARTMENT, et al., Defendants George Ford, Defendant-Appellee.

No. 84-2506

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 27, 1985.

Jesse R. Funchess, Houston, Tex., for plaintiff-appellant.

Eric H. Nelson, Houston, Tex., for defendant-appellee.

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

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

The plaintiff-appellant appeals the dismissal for want of prosecution of her civil rights complaint. We conclude that, by dismissing the complaint, the district court did not abuse its discretion. Accordingly, the judgment of the district court is affirmed.

I.

On September 17, 1981, Bennie M. Callip (Callip), a black female, commenced this Title VII-42 U.S.C. Sec. 1981 suit against George Ford (Ford), the Texas Department of Human Resources (TDHR), the Harris County Child Welfare Department (HCCWD), Mary Ann Whitefield (Whitefield) and George Daniel (Daniel). ¹ The complaint, which was filed on Callip's behalf by retained counsel, alleges that, because of her race and sex, the defendants discriminated against Callip in the conditions of her employment with HCCWD. The complaint further alleges that discrimination against Callip caused her to become ill and culminated in the termination of her employment. The complaint seeks backpay, workers' compensation or other disability benefits, actual and punitive damages, and preliminary and permanent injunctive relief.

On December 11, 1981, Ford moved to dismiss the complaint on the ground that service of process was defective. Callip did not file a response to the motion. On February 10, 1982, the district court ordered that, if Callip did not respond within fifteen days, the motion would be automatically granted. ² Callip responded on February 24, 1982, and claimed that the original service was valid and, even if it was not, that she would cause Ford to be served anew. On March 8, 1982, the district court denied Ford's motion to dismiss for defective service and afforded Callip ten additional days in which to accomplish valid service of process upon Ford. Ford was served on February 24, 1982, the same day on which Callip responded to the motion to dismiss.

On August 5, 1982, the court dismissed Callip's claims against Whitefield, HCCWD, and TDHR because Callip did not comply with a local rule that requires parties to be served with process within ninety days of the date upon which a complaint is filed. Callip filed a one-sentence motion for a new trial in which she sought relief from the order dismissing the claims against Whitefield, HCCWD, and TDHR. The motion was not accompanied by a brief or supporting memorandum. On December 7, 1982, the district court ordered that, if Callip wanted the court to consider legal arguments in support of the motion, she should submit a brief or memorandum within ten days. Callip failed to do so, and the court thereafter denied relief from the order of dismissal. Callip then attempted to perfect an appeal from the denial of the motion. She filed a notice of appeal in the district court but failed to file an appellate brief in this court within the time prescribed by the rules of appellate procedure. Accordingly, we dismissed the appeal for want of prosecution. On June 7, 1983, Callip filed a Rule 60(b) motion in which she asked the district court to vacate the order dismissing the claims against Whitefield, TDHR, and HCCWD. In support of the motion, Callip argued that the failure to perfect service of process resulted, not from an intentional disregard of the local rules, but from the illness of her attorney, her attorney's mistaken belief that process had been served, and a reduction in her attorney's office staff pursuant to the reorganization of his law practice. The court denied the motion on July 19, 1983.

The case had originally been placed on the trial docket for the district court's March-April 1983 term. The court scheduled a pretrial conference for February 24, 1983, and ordered the parties to submit a joint pretrial order by February 21, 1983. Presumably, because of Callip's abortive appeal (which was noticed on February 2, 1983, and dismissed on April 11, 1983), the pretrial conference did not take place, and the parties did not submit a pretrial order. Obviously, the district court did not call the case for trial in March or April. A February 6, 1984, Superseding Docket Control Order reset the case for the court's May-June 1984 term. The court ordered the parties to submit a joint pretrial order by April 23, 1984, in preparation for a May 1, 1984, pretrial conference. The court assigned responsibility for the timely filing of the pretrial order to Callip. Despite Ford's written request, Callip did not provide Ford with a proposed pretrial order before the April 23, 1984, deadline. The parties did not file a pretrial order. Instead, relying on Callip's recalcitrant behavior with respect to the pretrial order, Ford immediately moved to dismiss the case for want of prosecution. On April 30, 1984--seven days after the deadline for filing the pretrial order--Callip responded with a motion to continue the trial setting on the ground that a recent reduction in her attorney's legal staff had left him severely overworked. At a pretrial conference on May 4, 1984, the district court denied the motion to dismiss for want of prosecution and continued the case, on the understanding that no further continuances would be granted, until the court's September-October 1984 term. A new Superseding Docket Control Order set August 27, 1984, as the deadline for filing the joint pretrial order.

At the same pretrial conference, Ford apparently discussed the possibility of filing a motion to dismiss or a motion for summary judgment with respect to certain of Callip's claims. The district court ordered Ford to file such a motion by May 18, 1984, and ordered Callip to file a response by June 1, 1984. On May 9, 1984, Ford filed a motion for partial summary judgment, but Callip did not respond until June 11, 1984, ten days after her response was due. On June 13, 1984, Ford filed a motion to strike Callip's untimely response to the motion for partial summary judgment. Callip did not file a timely response to Ford's motion to strike. On July 31, 1984, the court deferred consideration of the motion to afford Callip an additional ten days in which to respond. Callip filed a response on August 8, 1984, which avers that the initial response to the motion for partial summary judgment was filed late because (1) her attorney is a sole practitioner; (2) her attorney had been ill; and (3) her attorney had faced unexpected trial settings in other cases following reform of the Harris County state-court docket system. The court thereafter denied both the motion to strike and the motion for partial summary judgment.

On June 13, 1984, Ford also filed a motion to compel answers to interrogatories that had been propounded on May 10, 1984, and for sanctions for failure to respond to the interrogatories within the time prescribed by Rule 33, Fed.R.Civ.P. Again, Callip failed to file a response to this motion and, presumably pursuant to Local Rule 14 B(1), see note 2, supra, the court granted the motion without a hearing. The court deferred consideration of appropriate sanctions, however, until a hearing scheduled for August 27, 1984, the date upon which the joint pretrial order was due.

At the hearing on August 27, the court awarded Ford $300 in attorney's fees incurred in preparing and presenting the motion to compel. At the same hearing, Ford informed the court that, although the pretrial order was due on that day, Callip had not yet provided Ford with a draft of the order. Ford stated that he intended to file a second motion to dismiss for want of prosecution. Although Callip's counsel did not attend the hearing, an attorney appearing on his behalf told the court that, at that time, the pretrial order was in the process of being typed. Late in the day on August 27, Callip filed what purports to be a joint pretrial order. The order was not circulated to Ford before filing, however, and does not include Ford's inserts. On the following day, Ford moved to dismiss the case for want of prosecution. The motion recites Callip's failure to comply with the docket control order and further alleges that, to that point in the litigation, Callip had conducted absolutely no discovery. ³ The district court granted Ford's motion and, without making specific findings or conclusions, dismissed the case for want of prosecution on September 17, 1984. This appeal followed.

II.

Callip argues on appeal that the district court abused its discretion in dismissing this case for want of prosecution. She asserts that the delays experienced in the district court, which at any rate are not "outrageous" or "egregious," flowed from the conduct of her attorney and are not directly attributable to misfeasance on her part. Moreover, Callip claims, the record demonstrates that her attorney was not deliberately dilatory; at most, he was "injudicious in his litigation practices." Finally, according to Callip, the district court erred by not considering the propriety of controlling her attorney's "injudicious" conduct with alternatives less drastic than dismissal.

Ford argues, on the other hand, that the district court acted well within its discretion in dismissing this case. Contrary to Callip's assertions, Ford claims that Callip's conduct was indeed outrageous and egregious: Callip directly disobeyed orders of the court on several occasions. Callip's counsel sought to avoid the consequences of each of these transgressions, according to Ford, with the same tired excuses that he was in poor health and had...