Rogers v. Kroger Co.

• Decision Date: 05 March 1982
• Docket Number: No. 80-2090,80-2090
• Citation: 669 F.2d 317
• Parties: 28 Fair Empl.Prac.Cas. 404, 28 Empl. Prac. Dec. P 32,510 Sam ROGERS, Plaintiff-Appellant, v. KROGER COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 317

669 F.2d 317

28 Fair Empl.Prac.Cas. 404,

28 Empl. Prac. Dec. P 32,510

Sam ROGERS, Plaintiff-Appellant, v. KROGER COMPANY, Defendant-Appellee.

No. 80-2090.

United States Court of Appeals Fifth Circuit.

March 5, 1982.

Clementine Hannah, Houston, Tex., for plaintiff-appellant.

Bracewell & Patterson, Kelly Frels, Victoria Corcoran, Houston, Tex., for defendant-appellee.

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

Before CLARK, Chief Judge, GOLDBERG and WILLIAMS, Circuit Judges.

CLARK, Chief Judge:

Sam Rogers appeals the district court's decision to dismiss with prejudice his employment discrimination lawsuit against Kroger Company for failure to prosecute. We hold that the district court abused its discretion in dismissing the action and remand for further proceedings consistent with this opinion.

I

Rogers, represented by William J. Rice, Jr., filed an employment discrimination action against Kroger on May 8, 1978, in the United States District Court for the Southern District of Texas. The complaint, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981, alleged racially discriminatory treatment, purporting to speak for a class of similarly situated blacks. On May 30, 1978, Rogers joined Kroger in a stipulation for an extension of time in which to answer Rogers' complaint. Kroger answered on June 9, 1978, asserting seven defenses and denying most of the factual allegations in the complaint. On October 13, 1978, Kroger filed a notice announcing an oral deposition of Rogers set for October 24, 1978, and requesting the production of certain documents by Rogers. That deposition and production of the requested documents took place as scheduled. The case was then dormant for over a year until the fall of 1979.

On November 5, 1979, the district court issued a docket control order. The order required that various class action allegations and motions be presented by year's end and announced that the case would be subject to a short notice call for trial during January-February 1980. Rogers failed to file a motion for class certification by the court's November 9, 1979, due date. On November 26, 1979, the district court granted Kroger's motion to strike Rogers' class action allegations on the ground of inadequacy of representation, Fed.R.Civ.P. 23(a)(4).

Rogers and Kroger filed an agreed motion for continuance on December 21, 1979. The significant event prompting that motion was Rogers' termination from employment by Kroger sometime after his institution of the lawsuit, which gave rise to a need to amend the complaint and gather evidence regarding the discharge. The district court granted the continuance motion on December 27, 1979. Allegedly unopposed by Kroger, Rogers filed a motion to amend his complaint and filed his First Amended Complaint on January 21, 1980. On that same date, the district court issued its second docket control order. The order called for the filing of a joint pretrial order by February 25, 1980, and set the case for docket call on February 29, 1980, subject to short notice call for trial during March-April 1980.

Rogers' attorney, Mr. Rice, moved for continuance on February 1, 1980, citing his need for more time to complete discovery since the First Amended Complaint was filed so recently. Mr. Rice noted his inexperience in the field and reported that he had secured the assistance of another attorney, Ms. Clementine Hannah. The district court denied the motion for continuance on February 6, 1980. Shortly thereafter, on February 14, 1980, Kroger filed a motion for continuance on the ground that it had no adequate notice of the proposed First Amended Complaint and required additional time to determine whether to oppose the motion to amend or to conduct additional discovery. On February 22, 1980, the district court (1) granted Kroger's unopposed motion for continuance, (2) extended the time for discovery to March 24, and the time for filing the joint pretrial order to March 28, 1980, and (3) instructed that counsel be ready to proceed to trial in April 1980.

Rogers submitted his first interrogatories on February 29, 1980. Kroger filed its answer to Rogers' First Amended Complaint on March 3, 1980. On March 12, 1980, with the discovery deadline twelve days away, Rogers requested leave under a local rule to file more than thirty interrogatories. The district court granted Rogers' motion on April 3, 1980, nearly ten days after the discovery deadline, and removed the case from the March-April docket. On May 16, 1980, Rogers filed his modified interrogatories. Anticipating a need to analyze Kroger's interrogatory responses and complete discovery, Rogers filed a motion for an extension of time to complete discovery. The district court granted that motion on June 9, 1980, and, in a superseding docket control order the next day, placed the case on the court's September-October docket and set a September 8, 1980, docket call date.

Kroger, on July 23, 1980, filed an unopposed motion for an extension of time in which to answer or object to Rogers' modified interrogatories of May 16. The district court granted the extension to August 15, 1980, and noted that there would be no trial delay. Kroger's thirty-one page (exclusive of exhibits such as computer printouts) response to Rogers' modified interrogatories was filed on August 21, 1980. On September 8, 1980, Rogers, in a motion submitted by his counsel Ms. Hannah, requested an extension of time on the ground that the late date on which the lengthy interrogatory responses were received (ten days after they were due to be filed) did not allow counsel adequate time to analyze those responses and prepare for trial. The district court that day denied Rogers' motion for an extension of time. On September 9, 1980, the parties were notified that the case was set for trial the following day.

On September 10, 1980, the district court called the case for trial. Ms. Hannah, appearing for Rogers, requested that she be substituted as counsel in place of Mr. Rice and declared herself unprepared to proceed to trial. The district court permitted Ms. Hannah to be substituted for Mr. Rice and requested an explanation for her unpreparedness. Ms. Hannah cited discovery difficulties primarily associated with assimilating Kroger's interrogatory responses and requested a two-week continuance. Counsel for Kroger objected to the motion for continuance and declared herself ready to go to trial. The district court judge then reviewed the lawsuit's history in detail and denied the continuance. The judge noted that Ms. Hannah had been unprepared without cause in a prior case before him and stated that "if it occurs again ... I'm going to take steps to see that you try no cases in this courtroom." ¹

The district court then sua sponte raised the issue of whether to dismiss the case for failure to prosecute under Rule 41(b), Fed.R.Civ.P. After affording both sides an opportunity to argue the merits of such a dismissal, and after Kroger orally moved for dismissal, the district court dismissed the case with prejudice under Rule 41(b). Rogers appeals the district court's order.

II

Rule 41(b) ² authorizes a district court to dismiss an action for failure to prosecute. A district court may dismiss sua sponte, with or without notice to the parties incident to its inherent powers. Link v. Wabash Railroad, 370 U.S. 626, 630-33, 82 S.Ct. 1386, 1389-90, 8 L.Ed.2d 734, 738-39 (1962). In reviewing a district court's decision to dismiss under Rule 41(b), we may reverse only if we find an abuse of discretion. Id. at 633, 82 S.Ct. at 1390, 8 L.Ed.2d at 739; Martin-Trigona v. Morris, 627 F.2d 680, 682 (5th Cir. 1980). Before evaluating whether the district court acted within the bounds of its discretion, we will review the appropriate legal standard for Rule 41(b) dismissals with prejudice.

This circuit has consistently held that Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of " 'a clear record of delay or contumacious conduct by the plaintiff,' ..., and where lesser sanctions would not serve the best interests of justice." Pond v. Braniff Airways, Inc., 453 F.2d 347, 349 (5th Cir. 1972) (citation omitted); see also McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. 1981); Gray v. Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981); Luna v. International Association of Machinists & Aerospace Workers, 614 F.2d 529, 531 (5th Cir. 1980); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976); Brown v. Thompson, 430 F.2d 1214, 1216-17 (5th Cir. 1970). Although the above factors, clear record of delay and futile lesser sanctions, have been articulated the most consistently, several of our decisions have also inquired into the extent to which the plaintiff, as distinguished from his counsel, was personally responsible for the delay, the degree of actual prejudice to the defendant, and whether the delay was the result of intentional conduct. ³ See, e.g., McGowan, 659 F.2d at 557-58 (intentional conduct); Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981) (intentional conduct); Veazey v. Young's Yacht Sale & Service, 644 F.2d 475, 477-78 (5th Cir. 1981) (responsibility of plaintiff, intentional conduct, and prejudice to defendant); Blois v. Friday, 612 F.2d 938, 940 (5th Cir. 1980) (responsibility of plaintiff, intentional conduct, and prejudice to defendant); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d at 248 (responsibility of plaintiff, intentional conduct, and prejudice to defendant); Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385-86 (5th Cir. 1978) (responsibility of plaintiff and prejudice to defendant); Ramsay v. Bailey, 531 F.2d 706, 709 n.2 (5th Cir. 1976) (responsibility of plaintiff), cert. denied, ...