Cohen v. Carnival Cruise Lines, Inc., 85-5086

• Decision Date: 18 February 1986
• Docket Number: No. 85-5086,85-5086
• Citation: 782 F.2d 923
• Parties: , 4 Fed.R.Serv.3d 424 Dianne Sue COHEN, Plaintiff-Appellant, v. CARNIVAL CRUISE LINES, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 923

782 F.2d 923

1988 A.M.C. 302, 4 Fed.R.Serv.3d 424

Dianne Sue COHEN, Plaintiff-Appellant, v. CARNIVAL CRUISE LINES, INC., Defendant-Appellee.

No. 85-5086.

United States Court of Appeals Eleventh Circuit.

Feb. 18, 1986.

Brady D. Green, Atlanta, Ga., for plaintiff-appellant.

Smathers & Thompson, Rodney Earl Walton, Miami, Fla., for defendant-appellee.

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

Before HATCHETT and CLARK, Circuit Judges, and ALLGOOD ^*, Senior District Judge.

PER CURIAM:

Appellant Dianne Sue Cohen brings this appeal from the district court's dismissal of her case for failure to obtain local counsel in accordance with the district court's local rules. Appellant contends that the district court abused its discretion in granting appellee Carnival Cruise Lines' motion to dismiss. While we concede the importance of prompt compliance with the local counsel rule, we find nonetheless that the sanction of dismissal with prejudice was not warranted in this case. Therefore, we vacate the decision below.

The sole issue in this appeal is whether the district court abused its discretion in ordering dismissal. The district court has authority under Rule 41(b) to dismiss for failure to comply with court orders or federal rules. See Fed.R.Civ.P. 41(b). Since dismissal with prejudice ¹ has such drastic consequences for the plaintiff, such dismissal is proper only where there is "a clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir.1985). Thus, even though local rules are valid and binding on the parties, ² their enforcement must be tempered with due consideration of the circumstances.

Appellant Cohen, a passenger aboard one of appellee's ships, was injured during a cruise and filed suit in a New Jersey state court on March 14, 1984. The case was removed on diversity jurisdiction to federal court in April. On September 17, the parties agreed ³ to transfer the case to the Southern District of Florida, and transfer was completed on September 24, 1984. One week later, appellee demanded appearance of local counsel but appellant had not yet obtained representation. Three weeks thereafter, appellee filed a motion to dismiss for failure to obtain local counsel. ⁴ Although appellant did not respond to the motion, she moved on November 13 to admit her New Jersey counsel pro haec vice. The motion for pro haec vice was denied and appellee's motion for dismissal was granted on December 26, 1984. A timely appeal followed.

This recital of the proceedings below shows that the case was dismissed only three months and two days after it was transferred to the proper court. We have not found a similar case in this circuit of dismissal within such a short time after commencement of the action. In Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir.1980), this court reversed dismissal of a case for counsel's failure to attend a pretrial conference where the case had been pending almost ten months. Plaintiff's counsel in Gonzalez had not only failed to attend the conference, he had failed to promptly comply with a court order to gain admission to the court's bar. See id. at 248. Yet this court refused to find a clear pattern of delay or willful contempt on these facts. Similarly, in McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554 (5th Cir.1981), this court reversed a dismissal with prejudice where, in the two years since filing suit, plaintiffs had taken no depositions, made no discovery, filed a pre-trial order six days late and filed proposed conclusions of law and fact on the first day of trial, some 43 days after the court-ordered deadline. See id. at 556. Very recently this court affirmed dismissal for counsel's failure to submit a preliminary statement after twice being ordered to do so. See Goforth v. Owens, 766 F.2d 1533 (11th Cir.1985). That case had been pending a full six months, however, before the trial court took the drastic step of dismissal. See id. at 1534. Thus, it appears that the three month delay in this case may not be sufficient cause to dismiss with prejudice.

Furthermore, we find no clear record of delay or willful contempt despite appellant's failure to timely retain local counsel. Appellant did attempt to retain counsel. Appellant's New Jersey counsel filed an affidavit soon after the motion to dismiss stating that he had contacted a number of Florida attorneys without success and therefore moved to appear pro haec vice. See Record at 15. Appellant petitioned pro se, after dismissal, for a rehearing, advising the court that as of January 15, 1985, she had finally obtained local counsel. ⁵ Equally important, appellant's efforts took place while she prosecuted her claim with some diligence, propounding and replying to interrogatories and responding to some of appellee's discovery requests. Cases sanctioning dismissal in this circuit have involved dereliction far greater than that shown here. See, e.g., Jones v. Graham, 709 F.2d 1457 (11th Cir.1983) (failure to timely comply with 5 court orders; motion to dismiss unopposed for 8 months); Martin-Trigona v. Morris, 627 F.2d 680 (5th Cir.1980) (failure to comply with 3 court orders; motion to dismiss unopposed for 10 months).

The trial court's dismissal of this case is improper not only in the absence of clear delay or willful contempt, but also in view of the court's failure to consider less drastic sanctions for non-compliance. Dismissal with prejudice is proper only where a lesser sanction would not serve the interest of justice. See Goforth, 766 F.2d at 1535. The district court did not indicate in its order of dismissal that it had even considered lesser sanctions, much less found that justice dictated dismissal. Such a deficiency was sufficient in McGowan v. Faulkner Concrete, supra, to vacate an order of dismissal. The McGowan court noted that the trial court should have considered a fine or other penalty before dismissal. See 659 F.2d at 558. Similarly, this court in Gonzalez v. Firestone,...