Appeal from the United States District Court for the Eastern District of Wisconsin. No. 83 C 964 -- Terence T. Evans, Judge.
Before CUMMINGS and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
This is an appeal from the district court's sua sponte dismissal of plaintiff Andrew B. Schilling's suit against the defendants Walworth County Park and Planning Commission and other county governmental bodies. Our jurisdiction is under Section 1291 of Title 28. This case presents the not uncommon conflict between the district courts' need and ability to control their dockets, see Link v. Wabash Railroad, 370 U.S. 626, 630-631, 8 L. Ed. 2d 734, 82 S. Ct. 1386, and the fundamental tenet of justice favoring the resolution of cases on their merits, see Beshear v. Weinzapfel, 474 F.2d 127, 132 (7th Cir. 1973). We reverse the district court's dismissal of this case because of our conclusion that absent such matters as a clear record of delay, contumacious conduct, or ineffectiveness of prior sanctions, a district court abuses its discretion when it dismisses an action without consideration of the adequacy of lesser sanctions.
The plaintiff, a naturalized American citizen and an emigrant from Hungary, was discharged in March 1981 from his position of Administrator of the Planning, Zoning, and Sanitation Office of Walworth County, Wisconsin, a position which he had held since October 1980. he alleged in his suit, filed on a pro se complaint form on July 29, 1983, that he was fired on the basis of his Germanic ethnicity, age, and outspoken criticism of some aspects of the Walworth County government. The defendants' answer was filed on October 19, 1983, the defendants' motion for additional time to respond having been granted.
What followed was a succession of telephone status conferences with the district judge and opposing counsel leading to the missed telephone conference of November 20, 1984. Written notice of the initial telephone conference of December 14, 1983, was sent to the plaintiff on October 17, 1983.*fn1 At the December telephone conference plaintiff appeared pro se. In response to the district court's questions, the plaintiff stated that he could not afford a "considerable retainer" for an attorney due to his "lengthy unemployment."*fn2 That conference was followed by a written order, dated December 19, 1983, directing that discovery be completed by June 1, 1984. Sometime prior to the second telephone conference, the plaintiff, still pro se, answered interrogatories propounded by the defendants.
Discovery was not complete by June 1, and the second telephone conference of August 21, 1984, dealt with unresolved discovery matters. The defendants' attorney complained that the plaintiff was refusing to cooperate with efforts to take his deposition. The defendants' attorney had attempted to set a date for the deposition in July 1984, but she waited to do so at the request of attorney Keith Gorman who told her that he would be representing the plaintiff and intended to amend the complaint. On August 10, 1984, Gorman informed the defendants' counsel by phone, and shortly thereafter the district court by letter, that he would not be representing the plaintiff due to the plaintiff's inability to raise a retainer. The attorney told the district court that in his opinion the plaintiff had made a good faith effort to raise the funds and did not use the discussions as a tactic for delay. The defendants' counsel attempted on August 10 to schedule a deposition, but the plaintiff refused to come to Milwaukee -- he was residing in New York and claimed he could not afford the trip -- and, according to the defendants' counsel, he stated, "I do not have to talk to you." The defendants' counsel then attempted to file a motion to compel the plaintiff to submit to a deposition, but the motion was returned by the post office undelivered.
The district court resolved these matters at the August telephone conference. The court directed the defendants to file another set of interrogatories prior to taking the plaintiff's deposition and told the plaintiff to answer those interrogatories freely. The district court also told the plaintiff that he would not have to appear in Milwaukee for a deposition until the time of the unscheduled pretrial conference. Finally, the district court instructed the plaintiff, who was still proceeding pro se, to talk to an attorney. As with the first telephone conference, written notice of the August telephone conference had been sent by the district court on June 14, 1984.
At the August telephone conference, a third telephone conference was scheduled for November 20, 1984, at 9:00 a.m. According to the plaintiff, this date was merely "tentative;" defendants contend differently. n.3 [footnote omitted] The minutes the district court took during the August telephone conference show that a telephone conference would be held on November 20, 1984, at 9:00 a.m., and do not include that the date was only tentative.
On November 20, 1984, the district court attempted unsuccessfully to reach the plaintiff. The plaintiff alleged in his affidavit prepared for this appeal that he was at probationary employment some ninety miles away from his previous New York address, but that he still collected mail from there. He claimed that he would have been available for the call if he thought it was scheduled; however, he believed that it was not because of his understanding that the date was "tentative" and the fact that, unlike the first two telephone conferences, he had received no notice regarding the call.*fn4 The call apparently was received by a friend of the plaintiff who only had a limited command of the English language and did not understand the import of the call; thus the plaintiff did not learn of the call until after he had received notice of the dismissal. Nine days after the aborted third telephone conference, upon receiving no explanation from the plaintiff for missing the call, the district court sua sponte dismissed the case on November 29, 1984. Plaintiff timely filed this appeal pro se ; he has since then obtained an attorney who prepared the brief and argued the appeal.
A district court's ability to dismiss a case sua sponte is predicated on the "'inherent power' . . . vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad, 370 U.S. 626, 630-631, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (footnote omitted); see also Fed. R. Civ. P. 41(b). This Court's review of appeals from orders to dismiss is limited to an abuse-of-discretion standard, Link, 370 U.S. at 633; however, we have often observed that a district court's discretion in these situations is not unfettered. This Court looks at the entire procedural history of the case to determine whether the sanction of dismissal constituted an abuse of discretion. Webber v. Eye Corp., 721 F.2d 1067, 1068 (7th Cir. 1983) (citing Sandee Mfg. Co. v. Rohm & Haas Co., 298 F.2d 41, 43 (7th Cir. 1962)).
The sanction of dismissal with prejudice must be infrequently resorted to by district courts in their attempts to control their dockets and extirpate nuisance suits. See Beshear v. Weinzapfel, 474 F.2d 127, 132 (7th Cir. 1973). In the normal course of events, justice is dispensed by the hearing of cases on their merits; only when the interests of justice are best served by dismissal can this harsh sanction be consonant with the role of courts. We have previously indicated the limited appropriateness of the sanction of dismissal: "A dismissal with prejudice is a harsh sanction which should usually be employed only in extreme situations, when there is a clear record of delay or contumacious conduct, or when other less drastic sanctions have proven unavailing." Webber v. Eye Corp., 721 F.2d 1067, 1069 (7th Cir. 1983) (citations omitted); accord Tolbert v. Leighton, 623 F.2d 585, 587 (9th Cir. 1980); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980). Absent those 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. See Cohen v. Carnival Cruise Lines, 782 F.2d 923, 925-926 (11th Cir. 1986) (per ...