Sam L. CARTER, Plaintiff-Appellant, v. CITY OF MEMPHIS, TENNESSEE, Defendant-Appellee, 636 F.2d 159

PER CURIAM. This case illustrates the dilemma confronting a district court when a plaintiff fails to comply with a court’s pre-trial orders. The court is faced with a Hobson’s choice: either it penalizes the plaintiff for the neglect or incompetence of his counsel, or it must overlook the non-compliance thereby rendering its order a nullity. Sam L. Carter appeals the dismissal of his civil rights action because his attorney failed to comply with the district court’s order. Carter contends that the district court dismissal was an abuse of discretion.

For the reasons set forth below, we reverse the judgment of the district court and remand the case for appropriate pre-trial proceedings. I. On September 14, 1977, Carter filed his complaint alleging that the City of Memphis had not hired him as a painter because of his race. The complaint alleged jurisdiction under 28 U.S.C. § 1331 and stated a claim directly under the Fourteenth Amendment. On October 15, 1976, Carter received a right-to-sue letter from the EEOC, which found reasonable cause to believe the charge of discrimination was true.

The district court entered an order on May 5, 1978, denying defendant’s motion to dismiss for lack of subject matter jurisdiction. On May 28, 1978, defendant filed its answer and affirmative defenses. An order of the district court was entered on July 28, 1978, which directed the parties to: 1) file their proposed pre-trial orders and briefs no later than November 29, 1978; 2) prepare for trial on December 20, 1978; 3) appear for a pre-trial conference on December 6, 1978; 4) complete all discovery before the pretrial conference; and 5) discuss settlement.

The order stated that the parties’ proposed pre-trial orders and briefs should discuss jurisdiction, pending motions, damages, stipulations of facts and admissibility of exhibits, contested issues of fact and law, exhibits, and witness lists. The order warned the parties that failure to appear at the pre-trial conference or to comply with the order could result in dismissal. Neither party filed the proposed pre-trial orders by November 29, 1978. On December 1, 1978, defendant filed a memorandum on its statute of limitations defense.

On December 5, 1978, Carter filed a motion to amend his complaint to state a Title VII claim. The next day the pre-trial conference was held. Defendant filed that day a motion to dismiss on the ground of statute of limitations and also filed a two-page proposed pre-trial order. On the same day Carter filed a supplemental brief which addressed the statute of limitations, the statement of the claim, the standard of proof and damages. Neither party had undertaken any discovery. On December 7, 1978, the district court dismissed the action with prejudice because of Carter’s noncompliance with its July 28, 1978 order.

The order of dismissal stated: Counsel for the plaintiff brought to the pre-trial conference the original of a document called a Supplemental Brief, most of which is totally irrelevant to the issues in the lawsuit. The court inquired at the commencement of the conference whether any discovery had been obtained, to which counsel for the plaintiff replied that they had been trying to resolve the question of law. Not only have the attorneys not met prior to the conference, but also the attorney for the plaintiff has not even attempted to prepare a Pre-trial Order or Proposed Pre-trial Order.

This court is of the opinion that a dismissal with prejudice is warranted in the total circumstances. App. 33. II. The sole issue on appeal is whether the district court abused its discretion in dismissing the action. It is clear that the district court does have the power under Rule 41(b), Fed.R.Civ.P., to enter a sua sponte order of dismissal. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

The dismissal of an action for an attorney’s failure to comply is a harsh sanction which the court should order only in extreme situations showing “a clear record of delay or contumacious conduct by the plaintiff.” Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978). See Edsall v. Penn Central Transp. Co., 479 F.2d 33 (6th Cir. 1973) (per curiam). Absent this showing, an order of dismissal is an abuse of discretion; the court is limited to lesser sanctions designed to achieve compliance, 586 F.2d at 385.

The sanction of dismissal is appropriate only if the attorney’s dilatory actions amounted to failure to prosecute and no alternative sanction would protect the integrity of pre-trial procedures. J. F. Edwards Const. Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir. 1976) (per curiam). As the Seventh Circuit has stated, “the key is a failure to prosecute, whether styled as a failure to appear at a pre-trial conference, failure to file a pre-trial statement, failure to prepare for conference, or failure to comply with the pre-trial order.” Id. at 1323.

Dismissal is usually inappropriate where the neglect is solely the fault of the attorney. Strict compliance with orders of a district court is an important duty of counsel. The attorney’s efforts here were wholly insufficient. He failed to engage in discovery, to discuss settlement, and to file appropriate pre-trial orders in a timely fashion as ordered by the court. He did not move for a continuance. His disregard for the

schedule established by the court could only have left him unprepared for trial. He did not file a Rule 60(b)(1) motion for post-judgment relief on the grounds of excusable neglect. Notwithstanding plaintiff’s attorney’s conduct, in our view, the district court abused its discretion in dismissing the complaint. The plaintiff is blameless. Plaintiff’s attorney did file some papers indicating his prosecution of the case and his view of the case. There is no finding or evidence that defendant was prejudiced by plaintiff’s dereliction or that the plaintiff could not make the case ready for trial on December 20.

Defendant did not move for dismissal on the ground of plaintiff’s noncompliance with the pre-trial order. Both attorneys seem equally dilatory. Accordingly, the judgment of the district court is REVERSED and the case REMANDED to permit plaintiff a short and reasonable period within which to comply with the district court’s orders. . Defendant argues that the dismissal should be affirmed on the ground of lack of subject matter jurisdiction. The district court correctly concluded that it had subject matter jurisdiction under 28 USC § 1331.