Jones v. Graham

• Decision Date: 22 July 1983
• Docket Number: No. 82-5398,82-5398
• Citation: 709 F.2d 1457
• Parties: 32 Fair Empl.Prac.Cas. 660 Gwendola M. JONES, et al., Plaintiffs-Appellants, v. Bob GRAHAM, et al., Defendants-Appellees. Bennie SMALL, Jr., et al., Plaintiffs-Appellants, v. Bob GRAHAM, et al., Defendants-Appellees. Henry T. McMILLIAN, Jr., et al., Plaintiffs-Appellants, v. Bob GRAHAM, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1457

709 F.2d 1457

32 Fair Empl.Prac.Cas. 660

Gwendola M. JONES, et al., Plaintiffs-Appellants, v. Bob GRAHAM, et al., Defendants-Appellees.

Bennie SMALL, Jr., et al., Plaintiffs-Appellants, v. Bob GRAHAM, et al., Defendants-Appellees.

Henry T. McMILLIAN, Jr., et al., Plaintiffs-Appellants, v. Bob GRAHAM, et al., Defendants-Appellees.

No. 82-5398.

United States Court of Appeals Eleventh Circuit.

July 22, 1983.

Clyde E. Murphy, Napoleon B. Williams, Jr., New York City, for plaintiffs-appellants.

Charles T. Collette, Tallahassee, Fla., Jon W. Searcy, Dist. Counsel, Fla. Dept. of Health & Rehabilitative Serv., Dist. 1, Pensacola, Fla., Leo J. Stellwagon, Asst. Dist. Counsel, Fla. Dept. of Health & Rehabilitative Services--Dist. IV, Jacksonville, Fla., Mitchell D. Franks, Asst. Atty. Gen., Dept. of Legal Affairs, Linda Loomis Shelley, Asst. Gen. Counsel, Tallahassee, Fla., for defendants-appellees.

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

Before RONEY and KRAVITCH, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

The task facing the Court is to decide whether the record in this case supports the district court's dismissal for failure both to prosecute and to comply with court orders. Fed.R.Civ.P. 41(b) authorizes a district court, on defendant's motion, to dismiss an action for failure to prosecute or to obey a court order or federal rule. The court's power to dismiss is an inherent aspect of its authority to enforce its orders and ensure prompt disposition of lawsuits. Link v. Wabash Railroad Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1388-89, 8 L.Ed.2d 734 (1962); State Exchange Bank v. Hartline, 693 F.2d 1350, 1352 (11th Cir.1982). The legal standard to be applied under Rule 41(b) is whether there is a "clear record of delay or willful contempt and a finding that lesser sanctions would not suffice." Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980) (emphasis added). Although the standard of review on appeal is abuse of discretion, dismissal of an action with prejudice "is a sanction of last resort, applicable only in extreme circumstances." State Exchange Bank v. Hartline, 693 F.2d at 1352 (quoting EEOC v. First National Bank, 614 F.2d 1004, 1007 (5th Cir.1980), cert. denied, 450 U.S. 917, 101 S.Ct. 1361, 67 L.Ed.2d 342 (1981). This case presents such an extreme circumstance. After reviewing the record, we conclude the district court acted within the bounds of its discretion. We affirm.

These suits began as three separate class actions, although never certified as such, against the Governor of Florida, numerous officials of the state Department of Health and Rehabilitative Services (hereinafter the HRS defendants), and the state personnel director in the Florida Department of Administration (DOA). Each suit alleged employment discrimination under 42 U.S.C.A. Secs. 1981, 1983, and 2000e et seq.

Plaintiffs initiated two of theses cases in the Jacksonville and Tampa divisions of the Middle District of Florida and the third in the Pensacola division of the Northern District. ¹ The third case was transferred to the Middle District of Florida, and on November 27, 1978, the court consolidated the three cases. In detailing the history of the case, it seems easier to review the pre-consolidation history in each case separately, and the post-consolidation events of the case as a single unit.

Jones v. Graham

After defendants filed answers or motions, they initiated discovery on May 2 with a request for production of documents. Plaintiffs obtained an extension of time in which to respond to the motion to dismiss filed by defendants Askew ² and Kennison, which the court approved. ³ Plaintiffs, however, filed their opposition seven days late. Plaintiffs never responded to defendant Williams' motion to dismiss.

On June 15 plaintiffs began discovery by seeking leave to serve in excess of 50 interrogatories. The court granted the motion but limited the number to 100. Defendants subsequently moved to strike the interrogatories as served because with subparts they totaled 284 in number in violation of the court's order. Plaintiffs re-served the interrogatories in compliance with the court's order.

Plaintiffs' motion to strike certain defenses as insufficient, filed on September 8, constituted the only other activity of any consequence during 1978. Plaintiffs did not file similar motions in Small and McMillian during 1978.

Small v. Graham

This case was transferred to the Jacksonville Division on May 28. Unlike Jones, plaintiffs did not seek additional time to respond to the motion to dismiss but filed an untimely response on June 27. Plaintiffs undertook no discovery in Small during 1978. Defendants served their first request for production of documents on May 3, to which plaintiffs responded on June 16. Plaintiffs have never served one of the Small defendants, Richard Gordon.

McMillian v. Graham

Although plaintiffs filed this complaint on March 1, 1978, they did not supply copies for service of process until two months later, on May 5. They have never served a named defendant, Robert Taylor. Plaintiffs received an extension of time for responding to the Askew-Kennison motion to dismiss to June 20. They filed an untimely response on June 26. Plaintiffs served their first set of interrogatories on July 25 to which defendants filed objections and sought an order striking them on August 15. Apparently the court never entered an order on this issue in McMillian.

The docket sheet shows no other entries regarding discovery in this case until after it was transferred to the Jacksonville Division and consolidated with Jones and Small.

The Consolidated Case

On January 18, 1979, defendants served their first request for production of documents in McMillian and on January 22 noticed their first depositions in all three cases. Plaintiffs, on January 25, served their first request for production of documents in Jones and McMillian. The only other entries docketed during 1979 for all three cases included: defendants' motions to substitute party defendants, a stipulation to amend defendants' notices of depositions, plaintiffs' response to defendants' request for production of documents, orders transferring the cases to Judge Black and then to Judge Castagna, and a notice of substitution of defense counsel.

On January 22, 1980, Judge Castagna entered an order directing plaintiffs' counsel to initiate a status report conference with defendants' counsel and "to jointly submit a 'Status Report' within 20 days." (emphasis in original). When plaintiffs had not responded by March 26, the court ordered plaintiffs to show cause why the suits should not be dismissed for failure to comply with the order and set a hearing for April 3. The day after the hearing, the court entered an order deferring a ruling on its show cause order based on plaintiffs' representation that a joint status report would be filed by April 25. The parties filed the report on April 24.

At the time of the court's January 22, 1980 order, the last plaintiff-initiated activity in Jones and McMillian was the first request for production of documents filed a year before on January 25, 1979. In Small, plaintiffs had initiated no discovery, and all of their activity had been undertaken in response to various defense motions. On April 9, 1980, the Small defendants moved to dismiss that case for failure to prosecute. Plaintiffs did not respond until December 1, nearly eight months later.

Plaintiffs engaged in a flurry of activity around the time the status report was filed. On April 20 and 21, 1980, more than two years after they had instituted suit, plaintiffs served their first and second sets of interrogatories in Small, the first discovery they had undertaken in that suit. Plaintiffs filed an untimely response on April 24 to defendants' April 3 motions for partial summary judgment. On that same day, they filed a second response to the motions to dismiss in each case made by defendants Askew and Kennison nearly two years before.

On April 25 plaintiffs moved to strike certain defenses in all three cases. These motions were substantially the same as the one initially filed by the Jones plaintiffs in September 1978. The court denied the motions, noting they were untimely and were not the proper procedural method to deal with the issues raised.

The court entered an order on July 10 dealing with several pending motions which merits further examination. The order granted four defense motions, noting that as to each plaintiffs had filed no opposition. These included motions (1) by defendants Askew and Kennison filed May 27, 1980 to stay discovery until resolution of their pending motion to dismiss or for more definite statement, (2) by the HRS defendants filed May 7, 1980 for leave to reply to plaintiffs' untimely response in opposition to an HRS motion for partial summary judgment, (3) by defendant Williams for a protective order allowing him to not respond to interrogatories until the court ruled on his motion to dismiss, and (4) by the defendants in Small and McMillian to substitute party defendants.

In the period from May 1980 to December 1, 1980 very little occurred. Plaintiffs responded to a defense request for oral argument on their motions for partial summary judgment, asking the court to hear all pending motions. The court held a hearing on December 1. It entered an order on December 3 denying motions by defendant Williams and by defendants Askew and Kennison to dismiss as to the Sec. 1983 claim, and by the HRS defendants for partial summary judgment. It also denied the Small defendants' motion to dismiss for failure to prosecute, based on the judicial preference for adjudicating matters on their merits and the fact that "there has been progress in the case since the filing of the motion to dismiss." The court granted the motion by defendants Askew and Kennison to dismiss the Title VII ...