decided: December 13, 1982; As Amended December 17, 1982.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY. (Civil Action No. 81-236).
Garth and Becker, Circuit Judges, and Fullam, District Judge.*fn* Fullam, J., concurring. Garth, Circuit Judge, dissenting.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
This appeal requires us to consider whether the district court abused its discretion in dismissing appellant's complaint with prejudice upon recommendation of the United States Magistrate, who reported that plaintiff's counsel had been unprepared at several pretrial conferences and had failed timely to submit a pretrial order. At the time of the dismissal, this court had not decided Donnelly v. Johns-Manville Sales Corporation, 677 F.2d 339 (3d Cir. 1982), which holds that, prior to dismissing an action with prejudice for failure to prosecute, the district court must first consider whether less severe sanctions would serve the ends of justice. Not having the benefit of Donnelly, the district court dismissed without considering the availability of such sanctions; at least the record does not reflect that consideration. Since Donnelly now represents the law of this circuit and must be applied in all cases subsequent to its filing,*fn1 we vacate and remand for further consideration in light of Donnelly.
After receiving a "right to sue" letter from the Equal Employment Opportunity Commission (EEOC), the appellant, Thomas F. Titus, instituted an action in the district court on January 26, 1981. Claiming violations of Title VII of the Civil Rights Act of 1964, as amended, the complaint alleged that Titus had been discharged from his employment with appellee, Mercedes Benz of North America, on November 16, 1979, as the result of racial discrimination.*fn2 Mercedes Benz filed its answer on March 10, 1981, whereupon the case was referred to a United States Magistrate for pretrial proceedings. On March 11, 1981, the clerk mailed a pretrial notice form to counsel.*fn3 The rest of the record is sparse -- its paucity illustrated by the fact that the next entry on the docket, except for the filing of a deposition transcript, is the magistrate's November 6, 1981, report and recommendation of dismissal.*fn4 That report and recommendation, filed sua sponte, is sufficiently brief that we set it forth in full:
This is a Title VII case for alleged racial discrimination in employment. A pretrial notice fixing a pretrial conference for June 8, 1981 was sent to counsel for the parties by the clerk of this court on March 11, 1981. On June 8, 1981, counsel appeared and plaintiff was unprepared and was without a pretrial order prepared pursuant to the pretrial notice. A pretrial conference was scheduled for September 10, 1981 and on that date counsel again appeared and the plaintiff was again unprepared. It was necessary to enter a discovery order fixing dates for the completion of discovery and a final pretrial conference was set for October 15, 1981. Counsel were directed that it was necessary that a pretrial order in accordance with this court's pretrial notice be presented for signature on that date. On October 15, 1981, counsel again appeared and again, plaintiff was unprepared and no pretrial order was presented. Counsel for plaintiff was directed to present a pretrial order prepared pursuant to the directions contained in the original pretrial notice no later than October 22, 1981. This date was selected by plaintiff's attorney.
To date, plaintiff has failed to comply with this court's order and has failed to prosecute this case. It is respectfully recommended that the matter be dismissed.
Both parties submitted letters to the district court in response to the report and recommendation. In his letter, Titus' attorney challenged the report's veracity. He stated:
In her report, [the magistrate] indicated, inter alia, that no Pre-trial order was presented. It should be noted that my staff has presented a Pre-trial Order, admittedly it was late, and same, as I understand it, would not be accepted unless it was also concurred to by my adversary. On said date, we delivered a copy to my adversary.
Subsequently thereto, telephone calls and communications were forthcoming. This week I received [a] letter from my adversary outlining their objections; all of which can be cured.
Appellee's letter, in contrast, was accompanied by an affidavit of counsel in which he stated that, to his knowledge, Titus had never submitted a pre-trial order to the magistrate and that, in addition to not having been prepared on October 22, Titus' counsel did not even appear for the pre-trial conference.*fn5 The affidavit further informed the district court that Titus had not responded to Requests for Admissions and Interrogatories except to supply the names of potential witnesses. Titus did not challenge the affidavit and concedes in his brief to this court that his counsel failed to appear at the October 22 conference.
On November 30, without hearing argument, the district court entered a brief order approving the magistrate's report and dismissing the case with prejudice less than eight months after it had been filed. Titus contends that the district court's action was an abuse of its discretion because (1) the "harsh sanction" of dismissal should be resorted to only in extreme cases, and only when there is a clear showing of willful violation of court rules or orders or of contumacious conduct or intentional delay; and (2) none of those factors are present on this record.
It is well established that a court has authority to order a dismissal sua sponte when the plaintiff has failed to prosecute his suit. In Link v. Wabash Railroad Co., 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962), Justice Harlan wrote:
The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts. The power is of ancient origin, having its roots in judgments of non suit and non prosequitur entered at common law. . . . the authority of the court to dismiss sua sponte for lack of prosecution has generally been considered an "inherent power," governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.
Id. at 629-31 (citations and footnote omitted).
This Court has recently emphasized, however, that district courts should be reluctant to deprive a plaintiff of the right to have his claim adjudicated on the merits. See, e.g., Donnelly v. Johns-Manville Sales Corporation, 677 F.2d 339 (3d Cir. 1982); Harris v. Cuyler, 664 F.2d 388 (3d Cir. 1981). Donnelly, our most recent pronouncement in this area, restated the governing principle in this Circuit: dismissal is a drastic sanction and should be reserved for those cases where there is "a clear record of delay or contumacious conduct by the plaintiff." 677 F.2d at 342. Donnelly further held that "it is necessary for the district court to consider whether lesser sanctions would better serve the interests of justice."*fn6 Id.; accord Asociacion de Empleados del Instituto de Cultura Puertorriquena v. Rodriguez Morales, 538 F.2d 915 (1st Cir. 1976); Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th Cir. 1976).
The opinion in Donnelly, of course, was filed after the dismissal in this case; since it was not available to either the magistrate or the district court, they can hardly be faulted for not having followed its precepts. Donnelly is nonetheless applicable here,*fn7 and the record does not show whether the magistrate or the district judge considered sanctions less severe than dismissal. Had they done so, they might have concluded that one of those sanctions would have better served the interests of justice. Under these circumstances, remand to the district court is required.
Without a doubt, appellant's counsel was seriously delinquent in his obligations to the court in October 1981: despite the magistrate's order, he failed to file a timely pretrial order or even to appear for a conference at a time he himself had selected.*fn8 On appellant's theory, the delinquency of his counsel amounted to only a matter of weeks; in the view of the appellee, the delinquency was egregious and long-standing.*fn9 See supra note 8. Regrettably, the magistrate's report is not particularly helpful in resolving this dispute, and the district court will doubtless wish to consider upon remand whether appellant's failures constitute a record of dilatory proceeding or contumacious conduct sufficient to justify a dismissal with prejudice under Donnelly. See supra p. 7.
We do not suggest that Donnelly prevents the district court from dismissing this case with prejudice. We recognize the heavy workload of the district courts, and we are mindful that broad discretion should be accorded district courts in the management of their calendars. Indeed the district court on remand may find that the conduct of appellant's counsel was such that no less severe sanction than dismissal will serve the ends of justice.*fn10 But because of the severity of that sanction, we require that the court should not take such drastic action without making the prerequisite finding (and without adequately recording its reasons for doing so).*fn11
Our remand in this case is no doubt fortuitous. But for the intervention of Donnelly we might have been obliged to affirm the dismissal, regardless of the underlying circumstances, because of the utter failure of appellant's counsel to demonstrate to the district court why the magistrate's report was in error. In general, the burden of establishing abuse of discretion is on the appellant. Fortunately for appellant, Donnelly works a reprieve. The naked record reveals no consideration of sanctions less severe than dismissal. The district court's order of dismissal will thus be vacated and the case remanded so that the district court may consider alternative sanctions, and, if appropriate, make findings that would support a dismissal with prejudice.
I agree with Judge Becker that Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339 (3d Cir. 1982), requires us to remand this case to the district court for reconsideration, and I concur in Judge Becker's Opinion except to the extent that it can be read as suggesting that dismissal might be an appropriate sanction in this case. I write separately to explain why I believe dismissal at this stage would be inappropriate, and to address certain of the concerns reflected in the dissenting opinion.
I agree with our dissenting colleague that a discretionary decision by a district court is reversible only for abuse of discretion, and that reversal is not warranted merely because the reviewing court would have exercised discretion differently. But dismissal of an eight-month-old case for failure to prosecute is, on its face, a sufficiently remarkable occurrence to justify appellate inquiry into the reasons for the dismissal.
In the present case, the district judge merely accepted the recommendation of the United States Magistrate. The reasons advanced by the magistrate in support of the recommendation are succinctly stated in her report: "To date, plaintiff has failed to comply with this court's order and has failed to prosecute this case." The report makes clear that the magistrate was referring to the repeated failures of plaintiff's counsel to comply with the magistrate's requirements respecting the preparation of a final pretrial order. It is necessary to view these failures in the context in which they occurred.
On January 26, 1981, plaintiff instituted this action, using a form of complaint supplied by the court for use in Title VII cases. The form complaint is a model of clarity and simplicity. Anyone reading that complaint learns immediately and unmistakably what the issues in this litigation are: Plaintiff claims simply that on a specified date he was discharged from his employment by the defendant because of racial considerations. The factual issues to be resolved at trial (or perhaps by summary judgment) are straightforward: Was plaintiff's race a factor in the discharge decision, or was plaintiff discharged for valid, non-discriminatory, reasons as claimed by the defendant?
In the normal course, it would seem that both sides could adequately prepare for an efficient trial with minimal effort. The defendant was entitled to know what support plaintiff might have for his assertion of racial discrimination, the plaintiff was entitled to know what proof the defendant would advance in justification of the discharge, and both sides were entitled to submit their dispute for resolution in accordance with the Federal Rules of Civil Procedure. And, of course, the court was entitled to manage the case in order to achieve a prompt and efficient resolution of all issues of fact and law which needed to be resolved.
The case was referred to the United States Magistrate for pretrial processing. On March 11, 1981, approximately six weeks after the complaint was filed, the magistrate issued a six-page pretrial notice, announcing a series of elaborate, burdensome, and largely wasteful steps that the parties would have to undertake in preparation for trial. The magistrate is not to be faulted for having sent the notice, because she was merely complying with a local rule of court mandating that procedure in all civil cases.
It should be noted that similar local rules have been struck down in other circuits, as violative of F.R.C.P. 16. J.F. Edwards Construction Co. v. Anderson Safeway, et al., 542 F.2d 1318 (7th Cir. 1976); Identiseal Corp. of Wisconsin v. Positive Identification Systems, Inc., 560 F.2d 298 (7th Cir. 1977); McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976). As stated by the McCargo court,
"The idea [of pretrial procedures] is to help the lawyers and the litigants -- not to exhaust them . . . (545 F.2d at p. 396).
"Rule 16 was never meant to make lawyers try a case on paper instead of in a courtroom. In fact, it contemplates that the district judge himself will dictate the pretrial order. Of course, the court may seek the aid of counsel in preparing the order, but Rule 16 should not be implemented in such a manner that the pretrial procedure itself is more difficult and time-consuming than the actual trial. . . ." (545 F.2d at p. 401).
It is the failure of plaintiff's counsel to render full and timely compliance with the requirement, set forth in the magistrate's notice, that plaintiff's counsel must bear the primary responsibility for preparing an elaborate final pretrial order that caused the dismissal of the action. In my view, dismissal for that reason can be justified only if the requirement was reasonable. While a district court must be accorded broad discretion in managing its calendar, that principle does not shield from appellate review utterly unreasonable and counter-productive "make-work" requirements which serve no valid case-management goal.
The notice employed in this case required plaintiff's counsel to prepare a final pretrial order ...