United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 11, 2011 Decided April 15, 2011
No. 10-7012
ANDREA PETERSON,
APPELLANT
v.
ARCHSTONE COMMUNITIES LLC, FORMERLY KNOWN AS
ARCHSTONE-SMITH TRUST,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:08-cv-01326)
Andrea Peterson, appearing pro se, argued the cause and
filed the briefs for appellant.
Nancy N. Delogu argued the cause for appellee. With her
on the brief was S. Libby Henninger.
Before: GARLAND, GRIFFITH, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GARLAND.
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GARLAND, Circuit Judge: The district court dismissed
Andrea Peterson’s pro se complaint against Archstone
Properties because she was absent from a single motions
hearing. The court had not previously found Peterson
disobedient or dilatory, did not attempt lesser sanctions, and
failed to explain why the case-ending sanction of dismissal was
necessary. Because such a disposition is inconsistent with our
precedent, we vacate the dismissal order and remand for further
proceedings.
I
Peterson applied for positions with Archstone in November
2006 and October 2007. After Archstone declined to hire her,
Peterson, acting pro se, sued Archstone for alleged violations of
the Age Discrimination in Employment Act of 1967, 29 U.S.C.
§ 621 et seq., and the District of Columbia Human Rights Act,
D.C. Code § 2-1401.01 et seq. In October 2009, the case was
referred to a magistrate judge to resolve a number of discovery
disputes. The magistrate scheduled a hearing for “arguments on
Archstone’s emergency motion to quash deposition notices and
for a protective order, its motion to compel plaintiff’s deposition
and for sanctions, and on plaintiff’s motion for a protective
order.” Peterson v. Archstone, 677 F. Supp. 2d 167, 167
(D.D.C. 2010) (citations omitted). At Peterson’s request, the
magistrate judge rescheduled the hearing and, on November 2,
2009, entered a minute order confirming that it would proceed
the next day as rescheduled. Peterson notified the courtroom
deputy by telephone that she would not attend. Archstone’s
counsel appeared at the hearing; Peterson did not.
Thereafter, the magistrate judge advised the district court of
Peterson’s failure to appear, and the court issued an Order to
Show Cause why the suit should not be dismissed for lack of
prosecution. Peterson responded -- as she had in her message to
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the courtroom deputy -- that she believed that motions she had
previously filed for a change of venue and for the magistrate
judge’s recusal remained pending and operated to suspend all
proceedings and cancel the discovery hearing. The district court
found this contention unpersuasive. Peterson, 677 F. Supp. 2d
at 168. The court pointed out that it had denied both motions,
and that although Peterson had filed a notice of intent to seek
reconsideration, she had not actually filed for reconsideration by
the time of the hearing. Moreover, the court noted, she “cite[d]
to no rule, statute, case or order that filing a motion to change
venue or for recusal or filing a notice of intent to seek
reconsideration operates to suspend or cancel a hearing ordered
by the court.” Id. Declaring that Peterson’s “failure to appear
inconvenienced the Court and caused the opposing party to incur
costs associated with its appearance,” the district court
dismissed the suit for lack of prosecution. Id.
II
District courts have inherent power to dismiss a case sua
sponte for a plaintiff’s failure to prosecute or otherwise comply
with a court order. See Link v. Wabash R.R. Co., 370 U.S. 626,
629 (1962); see also FED. R. CIV. P. 41(b); D.D.C. LOCAL RULE
83.23. This court reviews such dismissals for abuse of
discretion. Gardner v. United States, 211 F.3d 1305, 1308 (D.C.
Cir. 2000). Although we are “hesitant to type the exercise of a
district court’s dismissal authority as an abuse of discretion,”
Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 167 (D.C. Cir.
1990), the court must “explain why the harsh sanction of
dismissal was necessary under the circumstances of th[e] case,”
English-Speaking Union v. Johnson, 353 F.3d 1013, 1016 (D.C.
Cir. 2004). Moreover, “[b]ecause disposition of claims on the
merits is favored[,] . . . the harsh sanction of dismissal for failure
to prosecute is ordinarily limited to cases involving egregious
conduct by particularly dilatory plaintiffs, after ‘less dire
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alternatives’ have been tried without success.” Noble v. U.S.
Postal Serv., 71 Fed. App’x 69, 69 (D.C. Cir. 2003) (quoting
Trakas v. Quality Brands, Inc., 759 F.2d 185, 187 (D.C. Cir.
1985)); see Gardner, 211 F.3d at 1308-09; Shea v. Donohoe
Constr. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986); Camps v. C
& P Tel. Co., 692 F.2d 120, 123 (D.C. Cir. 1981).
Peterson’s failure to appear at a single motions hearing
cannot fairly be described as “egregious conduct.” See Noble,
71 Fed. App’x at 69. Here, as in other cases in which we have
vacated dismissals, “there is no evidence in the record of ‘bad
faith, deliberate misconduct, or tactical delay.’” Gardner, 211
F.3d at 1309 (quoting Trakas, 759 F.2d at 188). The fact that
“the district court did not identify any prior instance of
misconduct on [the plaintiff’s] part . . . argues in favor of
reversal.” Id.
Archstone contends that Peterson’s failure to appear
“resulted in significant prejudice to Archstone as it was unable
to move forward with the litigation” and because it had
“expended resources preparing for and attending the discovery
hearing.” Appellee Br. 14-15. But to warrant dismissal, the
prejudice to the opposing party “must be ‘so severe[] as to make
it unfair to require the other party to proceed with the case.’”
Gardner, 211 F.3d at 1309 (quoting Shea, 795 F.2d at 1074).
The district court did not find -- and Archstone does not even
contend -- that Archstone’s costs in connection with that single
discovery hearing, or any delay arising from Peterson’s failure
to appear, met that standard.
Archstone does maintain that Peterson was a dilatory
plaintiff who “refused to follow the Federal Rules of Civil
Procedure in the conduct of her discovery,” Appellee Br. 16, and
who submitted baseless motions “largely in disregard for the
Court’s rules or procedures,” id. at 1. But if that was true, the
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district court did not say so -- either in its dismissal order or at
any other place in the record that has been cited to us. Indeed,
as Peterson herself aptly pointed out during the appellate
argument, there is record evidence to the contrary. In a pleading
opposing Peterson’s motion for appointment of counsel to
represent her in the district court, Archstone advised the court as
follows: “[C]ounsel for Archstone has observed that Ms.
Peterson has, to date, ably drafted and responded to motions,
participated in discovery conferences, and otherwise capably
represented herself in this matter.” Mem. in Opp. to Plaintiff’s
Mot. for Counsel at 2 (June 25, 2009). And the district court, in
denying Peterson’s motion for appointment of counsel, found
that her “motions display not only a workable familiarity with
the Federal Rules of Civil Procedure and the local rules of this
Court, but also her ability to represent herself adequately.”
Mem. Op. at 2 (Sept. 8, 2009).
Nor did the court try “less dire alternatives” before resorting
to dismissal. Noble, 71 Fed. App’x at 69; see Gardner, 211 F.3d
at 1309 (“[T]he sua sponte dismissal of a lawsuit on the merits
is a drastic step, normally to be taken only after unfruitful resort
to lesser sanctions.” (citations omitted)); see also Bristol
Petroleum, 901 F.2d at 167 (“As a rule[,] . . . dismissal is in
order only when lesser sanctions would not serve the interest of
justice.”). Archstone contends that “[t]he District Court was
limited in the types of sanctions it could impose, as Ms. Peterson
is proceeding in forma pauperis and, thus, cannot be held
financially responsible for her abuse of the discovery process.”
Appellee Br. 11-12. But even if financial sanctions were
unavailable, the court had other intermediate alternatives at its
disposal. It could, for example, have treated Peterson’s failure
to appear as conceding the discovery disputes that were the
subject of the hearing she missed. Such a sanction would have
eliminated any prejudice that Archstone suffered: its prejudice
did not arise from expending money to prepare for the hearing,
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but from losing the opportunity to benefit from that preparation.
Such a sanction would also have eliminated any inconvenience
Archstone (or the court) suffered from the delay attendant to
Peterson’s failure to appear: defaulting Peterson with respect to
the discovery motions would have permitted accelerated
progress toward final disposition of the case. Of course, the
court could also have considered the still lesser alternative of
simply warning Peterson that any future failure to appear would
result in dismissal.
Finally, Archstone insists that dismissal was appropriate
because this court found that “[s]imilar conduct . . . justif[ied] an
involuntary dismissal” in Wooten v. Premier Yachts, Inc.,
No.00-7127, 2000 WL 1683500 (D.C. Cir., Oct. 18, 2000).
Appellee Br. 17. But the conduct in Wooten was not similar.
There, we upheld a dismissal order based not only on
“appellant’s failure to appear at [a] status conference,” but also
on “her refusal to participate in discovery, and the filing of
baseless motions even after the district court warned of the
consequences.” 2000 WL 1683500, at *1 (emphasis added).
Here, the district court did not find that Peterson had refused to
participate in discovery or had filed baseless motions.
Moreover, it is undisputed that the district court did not warn the
pro se plaintiff of the consequence of failing to appear. See
Camps, 692 F.2d at 123 (“[A] pro se litigant, who may not fully
understand the importance of precise compliance with court
directives[,] . . . should not be treated more harshly than litigants
who have the funds to retain lawyers to advise and represent
them.”). “[D]eterrence . . . justifies dismissals when there is
some indication that the client or attorney consciously fails to
comply with a court order cognizant of the drastic
ramifications.” Gardner, 211 F.3d at 1309. But “[a]bsent such
advance warning,” dismissal is unwarranted. Id. at 1309
(quoting Camps, 692 F.2d at 125).
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III
For the forgoing reasons, we vacate the district court’s
January 4, 2010 order dismissing Peterson’s civil action and
remand the case for further proceedings. Peterson’s pleadings
suggest that, if remanded, this case should go to different district
and magistrate judges, on the ground that both are prejudiced
against her. But while we have found error, we have found
absolutely no evidence of prejudice, or even the appearance of
prejudice, on the part of either the district or magistrate judge.
No “reasonable and informed observer would question [either]
judge’s impartiality,” District of Columbia v. Doe, 611 F.3d 888,
899 (D.C. Cir. 2010) (quoting SEC v. Loving Spirit Found. Inc.,
392 F.3d 486, 493 (D.C. Cir. 2004)), and we therefore deny the
appellant’s suggestion.
So ordered.