IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 98-40274
_____________________
RICHARD GAYDEN,
Plaintiff-Appellant,
v.
GALVESTON COUNTY TEXAS; GALVESTON COUNTY JUVENILE PROBATION
DEPARTMENT,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(G-97-CV-132)
_________________________________________________________________
March 24, 1999
Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE,
District Judge.*
KING, Chief Judge:**
Plaintiff-appellant Richard Gayden appeals from the district
court’s dismissal of his employment discrimination lawsuit, which
was dismissed because of the conduct of his attorney. Marlene
Dancer Adams, plaintiff-appellant’s attorney, appeals from an
*
District Judge of the Western District of Louisiana,
sitting by designation.
**
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
order of the district court that (1) assessed a $5000 fine
against her payable to the district court, and (2) required her
to reimburse defendants-appellees’ counsel in the amount of
$2500.
I. FACTUAL AND PROCEDURAL BACKGROUND
What follows is the saga of the dilatory performance of
Marlene Dancer Adams, plaintiff-appellant Richard Gayden’s
(plaintiff) counsel in this lawsuit. Adams filed suit on behalf
of plaintiff on October 24, 1996 in the Southern District of
Texas. Defendants-appellees Galveston County, Texas and
Galveston County Juvenile Probation Department (collectively,
defendants) were not served, however, until January 1997,
necessitating the postponement of the initial pretrial and
scheduling conference from February 3, 1997 to March 10, 1997.
On February 21, 1997, defendants filed their answer and moved for
a change of venue to the Galveston Division of the Southern
District of Texas. On February 26, 1997, the district court
granted the unopposed motion.
District Judge Samuel Kent of the Galveston Division of the
Southern District of Texas thereafter ordered an initial pretrial
and scheduling conference for August 6, 1997. On September 3,
1997, Judge Kent held a scheduling conference wherein, inter
alia, he set December 30, 1997 as the discovery deadline and
scheduled a pretrial conference for the week of January 12, 1998
before Magistrate Judge John Froeschner.
2
Defendants sent interrogatories to plaintiff on October 21,
1997. On November 24, 1997, Adams’s secretary called defendants’
counsel to request a few extra days to respond to the
interrogatories. According to defendants, the secretary advised
defendants’ counsel that the interrogatory answers were finished
but that Adams was away and would be back in a few days to review
them. Defendants agreed to the requested extension. Thereafter,
on December 15, 1997, defendants’ counsel wrote a letter that
advised Adams that the interrogatory answers were long overdue.
The letter also noticed plaintiff’s deposition for December 30,
1997 and advised Adams that a hearing had been scheduled for
January 8, 1998. Adams faxed the interrogatory answers to
defendants on December 19, 1997.1
Eleven days before the close of discovery, on December 19,
1997, Adams issued plaintiff’s first discovery requests.
Plaintiff noticed the depositions of the custodians of records of
the Galveston County Legal Department, the Galveston County
Juvenile Probation Department, and the Galveston County Human
Resources Department. The depositions were scheduled for
December 29, 1997. The notices included requests for a total of
twenty-one categories of items. That same day, defendants filed
motions to quash the deposition notices. Dissatisfied with
1
The certificate of service states that the answers were
delivered on December 16, 1997. However, the path statement at
the top of the document indicates that it was faxed on December
19, 1997. Plaintiff swore to the answers on December 15, 1997.
3
plaintiff’s interrogatory answers received that day, defendants
also filed a motion to compel.
On December 30, 1997, Magistrate Froeschner conducted a
hearing on defendants’ motions. That morning, plaintiff had
filed a motion to quash the subpoena duces tecum attached to the
notice of his deposition scheduled for later that day.
Magistrate Froeschner denied plaintiff’s motion to quash and
denied defendants’ motion to compel regarding plaintiff’s
interrogatory answers, but prohibited plaintiff from offering
expert testimony at trial. He also quashed plaintiff’s subpoenas
in regard to many of the documents requested from the custodians
of records. Finally, Magistrate Froeschner moved the deadline
for the pretrial order to noon on January 14, 1998. The pretrial
conference was scheduled for January 15, 1998.
On January 6, 1998, plaintiff attempted to file an amended
complaint.
On January 8, 1998, Judge Kent conducted a docket call,
notice of which had been sent to all counsel of record on
December 10, 1997. Plaintiff and Adams did not appear at the
docket call, and did not notify the district court that they
would not be appearing. As a result, Judge Kent dismissed the
case for want of prosecution in an order dated January 8, 1998.
On January 9, 1998, Judge Kent filed an order striking
plaintiff’s first amended complaint, filed January 6, 1998, for
failure to request leave of the court.
4
On January 22, 1998, plaintiff filed a Rule 59(e) motion,
seeking to have the case reinstated. In this motion, Adams
argued that she missed the January 8, 1998 docket call because,
during the December 30, 1997 hearing, she recalled Magistrate
Froeschner stating, after he moved the deadline for the joint
pretrial order to January 14, 1998, “that docket call would be
the day after the joint pre-trial order was due, or January 15,
1998, since the joint pre-trial order guides the Court at docket
call as to issues and settlement possibilities.” According to
Adams, she therefore changed the date of the docket call in her
calendar system from January 8, 1998 to January 15, 1998. Her
motion also informed the district court that she had never before
missed a docket call in over seventeen years of practicing law,
and then set forth arguments as to why the district court’s
ruling was legally inappropriate under Federal Rules of Civil
Procedure 16(f), 41(b), and the court’s inherent power to manage
attorneys practicing before it.
Defendants responded to plaintiff’s Rule 59(e) motion by
bringing to Judge Kent’s attention that Magistrate Froeschner had
never stated that he was moving the date of the docket call.
Instead, the transcript of the December 30, 1997 hearing reflects
that the only date that Magistrate Froeschner changed was the
date of the deadline for the pretrial order. Magistrate
5
Froeschner explicitly stated that all other dates would remain
the same.2
Thereafter, on February 13, 1998, the district court entered
an order conditionally granting plaintiff’s Rule 59(e) motion.
In his order, Judge Kent expressed irritation with the tenor of
plaintiff’s motion. In Judge Kent’s view, the motion did not
accept responsibility for the failure to appear at the January 8,
1998 docket call, instead blaming Magistrate Froeschner, and was
condescending in its explanation of the court’s power to dismiss
the case. Nevertheless, concluding that lesser sanctions would
be effective, Judge Kent agreed to grant plaintiff’s Rule 59(e)
motion and vacate his order dismissing plaintiff’s case provided
that, by February 27, 1998, Adams personally paid a $5000 fine to
the district court and reimbursed defendants’ counsel $2500 for
the costs and attorneys’ fees incurred due to plaintiff’s failure
to appear at the docket call.3 The district court’s order
explicitly stated that failure to pay the fine or reimburse the
2
According to the transcript, Magistrate Froeschner
stated:
I’ll move the pretrial order deadline ‘til the 14th at noon
because the next day at 11 is when we’re going to have the
pretrial conference and I don’t want to get it at 9:30 in
the morning. So by noon I want the pretrial order here. So
that ought to give you plenty of time to plug in anything
new. Other than that, everything else will remain as is.
3
Judge Kent noted that he typically fined attorneys $250
for failing to appear. He stated, however, that he believed that
the facts of this case warranted a harsher sanction. He also
instructed Adams to make the payments exclusively from her own
funds and not to seek reimbursement from plaintiff or from any
settlement proceeds.
6
defendants would result in the denial of plaintiff’s Rule 59(e)
motion and a dismissal of plaintiff’s claims pursuant to Federal
Rules of Civil Procedure 16(f) and 37(b)(2)(C).
Adams did not make the payments ordered by the district
court and did not contact the court prior to the February 27,
1998 deadline. The district court therefore issued a final
judgment, filed March 6, 1998, that reinstated the dismissal of
plaintiff’s claims without prejudice.4 Plaintiff and Adams
filed a joint notice of appeal on March 13, 1998.
On appeal, Adams argues that she mistakenly believed that,
because Magistrate Froeschner moved the deadline for the pretrial
order to the day before the pretrial conference, the docket call
was therefore scheduled to take place during the pretrial
conference. She argues that her Rule 59(e) motion did not
attempt to place blame on Magistrate Froeschner for the
misunderstanding, that she admitted that she was confused in her
motion, and that at no point in the motion did she argue that the
district court held docket call on the wrong date, that
Magistrate Froeschner had set the docket call for a different
date, or that Magistrate Froeschner had attempted to mislead her.
Instead, according to Adams, she mistakenly believed that the
4
Because the statute of limitations for plaintiff’s claims
had expired, the dismissal was a de facto dismissal with
prejudice. “‘Where further litigation of [a] claim will be time-
barred, a dismissal without prejudice is no less severe a
sanction than a dismissal with prejudice, and the same standard
of review is used.’” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188,
1191 (5th Cir. 1992) (alterations in original) (quoting McGowan
v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. Unit A
Oct. 1981)).
7
docket call would take place during the pretrial conference, and
her Rule 59(e) motion was merely an attempt to communicate the
basis for her mistaken belief to the district court. She urges
this court to find that the district court abused its discretion
by dismissing plaintiff’s case. She also urges us to find that
the order requiring her to make payments totaling $7500 was an
abuse of the district court’s discretion because the amount to be
paid was higher than the amount normally assessed by the district
court in similar situations.
II. STANDARD OF REVIEW
We review sanctions imposed by the district court, including
the involuntarily dismissal of a case, to determine whether the
district court abused its discretion. See Maguire Oil Co. v.
City of Houston, 143 F.3d 205, 208 (5th Cir. 1998) (reviewing
imposition of sanctions for abuse of discretion); Woodson v.
Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995) (reviewing
involuntary dismissal for abuse of discretion); Topalian v.
Ehrman, 3 F.3d 931, 934 (5th Cir. 1993) (reviewing imposition of
sanctions for abuse of discretion). It is an abuse of discretion
to impose sanctions if the factual findings on which the
sanctions are based are clearly erroneous or if the district
court is operating under an erroneous view of the law. See
Maguire, 143 F.3d at 208.
III. DISCUSSION
The district court dismissed plaintiff’s case under Federal
Rules of Civil Procedure 16(f) and 37(b)(2)(C). Seeing no need
8
to restate legal principles with which both the district court
and the parties are intimately familiar, we first consider the
district court’s February 13, 1998 order requiring Adams to make
payments totaling $7500. Adams challenges this order on the
ground that the district court incorrectly justified its order by
finding bad faith on her part, and on the ground that the amount
of the required payments is too high. She argues that because
she did not miss the docket call in bad faith, and because the
district court normally imposes $250 fines for missed docket
calls, the fine against her should be limited to $250.
Her arguments lack merit. The district court stated that it
was imposing a higher fine in this case because, in her Rule
59(e) motion, Adams misrepresented what happened at the
conference in front of Magistrate Froeschner in a manner that the
district court interpreted as an attempt to shift the blame away
from herself. In her Rule 59(e) motion, Adams did misattribute
to Magistrate Froeschner the statement “that docket call would be
the day after the joint pre-trial order was due, or January 15,
1998.” The transcript reveals that Magistrate Froeschner made no
such statement, as defendants pointed out to Judge Kent in their
response to the Rule 59(e) motion. The district court further
justified its sanction because of “the facts and the troubling
nature of Plaintiff’s conduct and attitude in this case,”
including the numerous instances of delay recounted above. Based
on the misrepresentation found in Adams’s Rule 59(e) motion and
based on the pattern of delay apparent from the record, the
9
district court did not abuse its discretion by imposing a higher
fine than it normally imposes.
As to the exact amount of the fine, at no time between the
February 13, 1998 order and the March 6, 1998 order dismissing
the case did Adams argue before the district court that the
amount the district court ordered her to pay was unreasonable or
excessive. We thus have no record before us from which to assess
whether the amount the district court ordered Adams to pay was
unduly burdensome. We decline to consider the amount of the fine
because it was not challenged below.5 See United States ex rel.
Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th Cir. 1998);
Abbott v. Equity Group, Inc., 2 F.3d 613, 627 n.50 (5th Cir.
1993). However, because Adams’s behavior has caused the
defendants to incur additional expenses on this appeal, in the
exercise of our discretion, we modify the $5000 award owed to the
district court so that Adams is ordered to pay $1500 of that
amount to the defendants’ counsel as compensation for their
expenses associated with this appeal and $3500 directly to the
district court. We affirm the order as modified.
5
We note, however, that the $2500 the district court
ordered Adams to pay to defendants’ counsel was proper because,
as a sanction for failing to appear at a scheduling or pretrial
conference, the district court is authorized by Rule 16(f) to
require an attorney to pay the reasonable expenses, including
attorneys’ fees, that her opponent incurred because of the
attorney’s failure to appear. See FED. R. CIV. P. 16(f). There
is no indication from the record that $2500 is not commensurate
with the expenses defendants’ counsel incurred in conjunction
with the missed docket call.
10
As to the district court’s March 6, 1998 judgment of
dismissal, we confess we are reluctant to punish plaintiff for
the failings of his attorney. See Clofer v. Perego, 106 F.3d
678, 680 (5th Cir. 1997); Callip v. Harris County Child Welfare
Dep’t, 757 F.2d 1513, 1522 (5th Cir. 1985); Morris v. Ocean Sys.,
Inc., 730 F.2d 248, 253 (5th Cir. 1984). While the frustration
of the district court with the performance of plaintiff’s counsel
is understandable, to say the least, after reviewing the record,
we conclude that the district court abused its discretion in
dismissing plaintiff’s case.
Adams is ordered to make the payments required by the
district court’s February 13, 1998 order as modified within
thirty days of the issuance of our mandate. If she fails to do
so, then the district court will be justified in dismissing
plaintiff’s case. Moreover, if any further dilatory conduct
occurs, then the district court will certainly have a predicate
for severe sanctions, up to and including dismissal.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the February 13, 1998
order of the district court as modified, VACATE the district
court’s March 6, 1998 judgment of dismissal, and REMAND for
further proceedings consistent with this opinion.
11