Mingo v. Sugar Cane Growers Co-op. of Florida, CO-OP

• Decision Date: 23 January 1989
• Docket Number: CO-OP,No. 87-5710,87-5710
• Parties: Hugh D. MINGO, Individually and on Behalf of all others similarly situated, Plaintiff-Appellant, Cross-Appellee, v. SUGAR CANE GROWERSOF FLORIDA a/k/a "Sugar Cane Growers Cooperative of Florida," Defendant-Appellee, Cross-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 101

864 F.2d 101

Hugh D. MINGO, Individually and on Behalf of all others

similarly situated, Plaintiff-Appellant, Cross-Appellee, v. SUGAR CANE GROWERS CO-OP OF FLORIDA a/k/a "Sugar Cane

Growers Cooperative of Florida,"

Defendant-Appellee, Cross-Appellant.

No. 87-5710

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Jan. 23, 1989.

Ann Margaret Pointer, Fisher & Phillips, Atlanta, Ga., for defendant-appellee, cross-appellant.

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

Before VANCE, KRAVITCH and COX, Circuit Judges.

PER CURIAM:

Plaintiff appeals the district court's order dismissing his action, with prejudice, for want of prosecution. We vacate the order and remand the cause to the trial court.

The district court possesses the inherent power to police its docket. Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962). Incident to this power, the judge may impose formal sanctions upon dilatory litigants. The sanctions imposed can range from a simple reprimand to an order dismissing the action with or without prejudice.

Our cases announce the rule, however, that dismissal is warranted only upon 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) (emphasis supplied); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir.1983); Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir.1980). ¹ Although we occasionally have found implicit in an order the conclusion that "lesser sanctions would not suffice" (see Goforth, 766 F.2d at 1535), we have never suggested that the district court need not make that finding, which is essential before a party can be penalized for his attorney's misconduct. Hildebrand, 622 F.2d at 181. See Cohen v. Carnival Cruise Lines, Inc., 782 F.2d 923, 925 (11th Cir.1986) (trial court abused discretion by ordering dismissal without considering lesser sanctions); Carter v. United States, 780 F.2d 925, 928 (11th Cir.1986) (same; dicta ); also, Jones v. Bowen, 790 F.2d 1550, 1553 (11th Cir.1986) (cause remanded). In Goforth, any order other than dismissal would have "greatly prejudiced" the defendants. Id., 766 F.2d at 1535; compare Jones v. Graham, 709 F.2d at 1461-62 (district judge found that great prejudice to defendants could only be cured by dismissal).

In the instant case, the trial court did not make a finding concerning the efficacy of sanctions less severe than dismissal. The district court did mention that earlier in the litigation the cause had come close to dismissal; in fact, the court had warned plaintiff on at least two prior occasions that further delay might yield dismissal. In its order finally disposing of the action, the court concluded that dismissal was warranted because "it would be unfair to defendant to allow this unhappy litigation to drag on longer than it already has," and further, that "the circumstances of this case cry out for such a 'just, speedy, and inexpensive determination.' ...