Campbell v. Wilkinson, 021921 FED5, 20-11002

Docket Nº:20-11002
Opinion Judge:JAMES C. HO, CIRCUIT JUDGE:
Party Name:Casey Campbell, Plaintiff-Appellant, v. Robert M. Wilkinson, Acting U.S. Attorney General; William Onuh, Defendants-Appellees.
Judge Panel:Before Haynes, Willett, and Ho, Circuit Judges.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Casey Campbell, Plaintiff-Appellant,

v.

Robert M. Wilkinson, Acting U.S. Attorney General; William Onuh, Defendants-Appellees.

No. 20-11002

United States Court of Appeals, Fifth Circuit

February 19, 2021

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:20-CV-00638

Before Haynes, Willett, and Ho, Circuit Judges.

JAMES C. HO, CIRCUIT JUDGE:

Plaintiff brought claims of discrimination and retaliation under Title VII of the Civil Rights Act. The district court dismissed the suit under Federal Rule of Civil Procedure 41(b) on the ground that Plaintiff's counsel failed to retain local counsel as required by local rules. We hold that dismissal was unwarranted and therefore reverse and remand for further proceedings.

I.

Casey Campbell filed this lawsuit in the Northern District of Texas, alleging discrimination and retaliation by his employer, the Federal Bureau of Prisons, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

A few days later, the district court's Electronic Case Filing (ECF) system reminded Campbell's counsel that, "if necessary, [attorneys] must comply with Local Rule 83.10(a) within 14 days or risk the possible dismissal of this case without prejudice or without further notice." Local Rule 83.10(a) of the Northern District of Texas states that, absent leave of court or an applicable exemption, "local counsel is required in all cases where an attorney appearing in a case does not reside or maintain the attorney's principal office in this district."

Campbell's counsel neither resides nor maintains his office in the Northern District of Texas. Yet counsel did not obtain local counsel. Nor did he ask the court to waive the rule. Nor did he inform his client of the ECF notice or the local rule, or of his intention not to comply with either. He simply made a unilateral determination that the local rule did not apply to him, because he has practiced for decades in the Northern District of Texas, and because he currently lives and offices less than ten miles away in the neighboring Eastern District of Texas.

Approximately six weeks after issuing the ECF notice, the district court reviewed the record, determined that counsel was not in compliance with the local rule, and dismissed the case without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.

In response, counsel filed a motion to reconsider the dismissal and a motion to proceed without local counsel. The district court denied both motions. In doing so, the court noted that 45 days had elapsed between the ECF notification and the court's order of dismissal, without counsel either obtaining local counsel or requesting leave to proceed without local counsel.

II.

Dismissal of Plaintiff's Title VII claim under Rule 41(b) of the Federal Rules of Civil Procedure was not warranted. To understand why, however, we must examine both the text of Rule 41(b) and various past decisions of our court.

Under Rule 41(b), "a defendant may move to dismiss the action or any claim against it" "[i]f the plaintiff fails to prosecute or to comply with these rules or a court order." Fed.R.Civ.P. 41(b). It is well established that Rule 41(b) permits dismissal not only on motion of the defendant, but also on the court's own motion. See, e.g., Morris v. Ocean Sys., Inc., 730 F.2d 248, 251 (5th Cir. 1984) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 631 (1962)). The question nevertheless remains whether this particular dismissal on the district court's own motion was warranted under Rule 41(b).

This case does not involve a violation of either "these rules"-that is, the Federal Rules of Civil Procedure-or "a court order." Fed.R.Civ.P. 41(b). It involves the violation of a local rule. But Rule 41(b) does not mention local rules. This absence of any express reference to "local rules" in Rule 41(b) thus raises the question whether it is ever appropriate to invoke Rule 41(b) based on nothing more than the violation of a local rule.

Outside the Rule 41(b) context, we have observed that "[a] local rule must be adopted by a majority of the district judges and followed by all, in effect serving as a standing order within the district," and that a local rule is accordingly equivalent to "a court order." Jones v. Central Bank, 161 F.3d 311, 313 (5th Cir. 1998). But see id. at 313-14 (Smith, J., dissenting) (noting that various provisions of the Federal Rules of Civil Procedure, including Rules 6, 26, 30, 73, and 77, expressly apply to both court orders and local rules, and thus "indicate, with precision, that court orders are not the same things as local rules").

We have not taken that approach within the Rule 41(b) context, however. In Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992), we reaffirmed that a "dismissal of plaintiff's suit for failure to file a motion for default judgment, as required by local rule, [is] treated as dismissal for failure to prosecute" under Rule 41(b). Id. at 1190 (citing...

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