Long v. Steepro

• Decision Date: 30 May 2000
• Docket Number: No. 99-2094,99-2094
• Parties: (7th Cir. 2000) BOBBY R. LONG, JR., Plaintiff-Appellant, v. TOM STEEPRO, in his individual capacity, WILLIAM HARTLEY, in his individual capacity, and DANIEL BODLOVICH, Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 983

213 F.3d 983 (7th Cir. 2000)

BOBBY R. LONG, JR., Plaintiff-Appellant, v. TOM STEEPRO, in his individual capacity, WILLIAM HARTLEY, in his individual capacity, and DANIEL BODLOVICH, Defendants-Appellees.

No. 99-2094

In the United States Court of Appeals For the Seventh Circuit

ARGUED MARCH 29, 2000

DECIDED MAY 30, 2000

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 97 C 696--Allen Sharp, Judge.

Before FLAUM, RIPPLE and KANNE, Circuit Judges.

RIPPLE, Circuit Judge.

The district court dismissed with prejudice Bobby Ray Long, Jr.'s civil action for failure to timely file his witness and exhibit list. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for further proceedings.

I BACKGROUND

Mr. Long filed his pro se complaint in the Northern District of Indiana on October 28, 1997. In that complaint, Mr. Long alleged that employees of the Indiana State Prison at Michigan City had violated his civil rights by failing to protect him from another inmate. The Attorney General of Indiana entered his appearance for the defendant prison officials, Tom Steepro, William Hartley, and Daniel Bodlovich.

After two enlargements of time, the defendants filed their answer to Mr. Long's amended complaint on June 12, 1998. Shortly thereafter, on June 17, 1998, the district court issued an order that required all discovery to be completed by September 30, 1998 and dispositive motions to be filed by October 9, 1998. During this phase of the proceedings, the defendants moved for several enlargements of time to answer discovery and to file their motions for summary judgment. The district court granted all of the requested extensions.

On January 11, 1999, after a telephonic conference with the magistrate judge, the district court issued a "Scheduling Order and Memorandum" ("Scheduling Order") to govern pre-trial deadlines. The order required the defendants to serve Mr. Long with a final written settlement proposal by February 5, 1999. The order also instructed Mr. Long to file his list of witnesses, exhibits, and contentions no later than April 2, 1999. According to the order, "[f]ailure to file and serve such list within the time allowed will result in the dismissal of plaintiff's action." R.67 at 3. In the same order, the district court stated that the Scheduling Order would be modified only by leave of court and for good cause shown.

Shortly after the scheduling conference, on February 1, 1999, the defendants filed their motion for summary judgment. The defendants failed, however, to serve Mr. Long with "a written final settlement proposal" by February 5, 1999, as required by the Scheduling Order. Id. at 1. Instead, on February 3, 1999, the defendants filed a "Position Regarding Settlement," which stated: "Defendants are currently not in a position to offer Plaintiff a settlement proposal and will be in a position to discuss settlement with Plaintiff after the Court has ruled on Defendants' Motion for Summary Judgment, submitted on January 29, 1999." R.76.

Mr. Long timely filed his response to the motion for summary judgment. However, Mr. Long did not meet the April 2, 1999, deadline for filing his list of witnesses, exhibits, and contentions. This was the first deadline that Mr. Long missed.

On April 9, 1999, the magistrate judge sua sponte issued a report and recommendation (the "April 9 Report") that Mr. Long's action be dismissed pursuant to Federal Rule of Civil Procedure 16(f) for failure to comply with the Scheduling Order. The April 9 Report referenced the district court's prior warning to Mr. Long that failure to timely file his witness and exhibit list would result in dismissal; it did not address the adequacy of lesser sanctions.

Mr. Long filed his objections to the April 9 Report on April 16, 1999. Specifically, Mr. Long explained that it was his belief that the summary judgment motion was still pending and, during the pendency of the motion, all other court actions were suspended. He stated: Because Plaintiff believed that the Court's decision on the defendants' summary judgement motion was still pending Plaintiff neglected to comply with this Court's Scheduling Order of January 11, 1999 inadvertenly [sic] in that he interpreted summary judgment proceedings to suspend all other proceedings pending the Court's decision whether to grant or deny summary judgment requests, thus Plaintiff believed that submitting other matters to the court would be futile or moot. R.84 at 1-2. Mr. Long also asked the district court to consider his diligence "in complying with all of the court's orders through the course of the proceedings" and argued that his "inadvertent neglect . . . was excusable." Id. at 2.

On April 22, 1999, the district court approved the April 9 Report. It did not address the merits of Mr. Long's objections, nor did it consider alternative sanctions.¹ Mr. Long now appeals the dismissal of his action.

II DISCUSSION

We review a district court's dismissal of an action pursuant to Federal Rule of Civil Procedure 16(f)² for an abuse of discretion. See Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir. 1993) (reviewing a dismissal of an action pursuant to Rules 16, 37 and 41 for an abuse of discretion). In determining whether the sanction of dismissal constituted an abuse of discretion, we look to the entire procedural history of the case. See Patterson v. Coca-Cola Bottling Co., 852 F.2d 280, 284 (7th Cir. 1988); Schilling v. Walworth County Park & Planning Comm'n, 805 F.2d 272, 275 (7th Cir. 1986). "The choice of appropriate sanctions is primarily the responsibility of the district court," Patterson, 852 F.2d at 283; however, "the sanction selected must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction." Salgado v. General Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998).

We are particularly vigilant in requiring proportionality "where the draconian sanction of dismissal is imposed." Marrocco v. General Motors Corp., 966 F.2d 220, 223-24 (7th Cir. 1992).³ We often have noted that the interests of justice are best served by resolving cases on their merits; consequently, "[t]he sanction of dismissal with prejudice must be infrequently resorted to by district courts in attempting to control their dockets and extirpate nuisance suits." Schilling, 805 F.2d at 275. This ultimate sanction is reserved for cases in which the offending party has demonstrated wil fulness, bad faith, or fault. See Downs v. Westphal, 78 F.3d 1252, 1256 (7th Cir. 1996) (citing Patterson, 852 F.2d at 283). "Absent [these] circumstances, the careful exercise of judicial discretion requires that a district court consider less severe sanctions and explain, where not obvious, their inadequacy for promoting the interests of justice." Schilling, 805 F.2d at 275. With these standards in mind, we turn to Mr. Long's actions to determine if they warranted such a penalty.

Mr. Long, proceeding pro se, prosecuted his complaint without incident for over one year. He timely answered discovery requests served on him, responded in a timely fashion to the defendants' motion for summary judgment, and properly requested leave of court when he sought to amend his complaint. Mr. Long's only misstep was his failure to file his evidentiary lists by the deadline set in the Scheduling Order.

The defendants do not claim that Mr. Long's failure was wilful, deliberate, or in bad faith. Instead, the defendants argue that the penalty was appropriate because Mr. Long was warned that his action would be dismissed if he failed to comply with the Scheduling Order.⁴ Given the warning, continue the defendants, Mr. Long's actions were unreasonable, constituted "fault" as that term has been used in our case law, and consequently merited the harsh sanction imposed by the district court.

As stated above, dismissal as a sanction is only appropriate when "the noncomplying party acted with wilfulness, bad faith or fault." Marrocco, 966 F.2d at 224. Although wilfulness and bad faith are associated with conduct that is intentional or reckless, the same is not true for "fault." Fault "does [not] speak to the noncomplying party's disposition at all, but rather only describes the reasonableness of the conduct--or lack thereof--which eventually culminated in the violation." Id.

Fault, however, is not a catch-all for any minor blunder that a litigant or his counsel might make. Fault, in this context, suggests objectively unreasonable behavior; it does not include conduct that we would classify as a mere mistake or slight error in judgment. For instance, in Marrocco, we determined that the Goodyear Tire and Rubber Co., the defendant in the consolidated appeal, was at fault because it had packaged carelessly evidence that was lost in transit; it had stood idly by for months before it attempted to investigate the loss; and it delayed even longer before informing the plaintiffs that the evidence was missing. "These omissions," we stated, "cannot be characterized merely as mistake or carelessness. Rather, they reflect gross negligence on the part of Goodyear--a flagrant disregard of its assumed duty, under the protective order, to preserve and monitor the condition of evidence which could be pivotal in the lawsuit." 966 F.2d at 224.

We believe that the missed deadline in the present case was, unlike the actions of the defendant in Marrocco, a "mere mistake." Although Mr. Long was warned that dismissal was possible, it was reasonable for him to believe that all proceedings were stayed pending a ruling from the district court on the summary judgment motion. The reasonableness of Mr. Long's actions are confirmed by the actions of the defendants during the same time period. Although ordered by the court to submit a final settlement offer to Mr. Long by February 5, 1999, they did not...