In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2755
M ARIANA K ASALO ,
Plaintiff-Appellant,
v.
H ARRIS & H ARRIS, L TD.,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 6581—Ronald A. Guzmán, Judge.
A RGUED F EBRUARY 15, 2011—D ECIDED A UGUST 26, 2011
Before R OVNER, W OOD , and E VANS , Circuit Judges.
W OOD , Circuit Judge. Mariana Kasalo sued Harris &
Harris, Ltd., a collection agency, for violations of the
Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq.
The parties agree that Harris attempted to collect an
Circuit Judge Evans died on August 10, 2011, and did not
participate in the decision of this case, which is being
resolved by a quorum of the panel under 28 U.S.C. § 46(d).
2 No. 10-2755
overdue hospital bill from Kasalo in a way that violated
the Act and that Kasalo is entitled at least to statutory
damages of $1,000. See 15 U.S.C. § 1692k(a)(2)(A). A
modest sum, to be sure, but one that Congress has
deemed necessary to deter abusive collection practices
and to compensate victims. Given the parties’ agree-
ment, one might expect that the case would have been
resolved long ago; and, indeed, the parties made clear
to the district court at the very start of the litigation
that they intended to settle Kasalo’s individual claim.
Yet here we are with an appeal from the district court’s
decision to dismiss the case for want of prosecution.
We have reached this point because Kasalo’s lawyer
endeavored to transform the case into a class action,
and the district court, frustrated by this effort, grew
impatient and dismissed the whole action. The district
court chose this course without considering its other
options for whittling down claims or resolving the case
outright. We are sympathetic to its view of the pro-
posed class action, but we conclude that its decision
to dismiss for want of prosecution was an abuse of dis-
cretion.
I
Kasalo’s lawyer, J. Nicolas Albukerk, saw the potential
for a class action in Kasalo’s assertion that Harris had
engaged in unlawful debt collection. He included in
Kasalo’s complaint two class counts, which charged
that various materials used by Harris to collect debts—
specifically the company’s envelopes and payment re-
No. 10-2755 3
minders—violated the harassment, false representation,
and unfair practices provisions of the Act. See 15 U.S.C.
§§ 1692d, 1692e, and 1692f. We have no way of knowing
whether Albukerk included these class counts based
on a genuine belief that they had merit or because
he hoped for a more substantial settlement from Har-
ris. What we do know is that the district court
and Albukerk disagreed from the start about the possi-
bility of moving the class claims forward.
After granting Harris an extension to answer the com-
plaint, the district court held an initial status hearing.
At that hearing the parties announced that they
intended to settle Kasalo’s individual claim; the district
judge expressed doubt that it would ever certify a
class; and Albukerk was granted a month to take dep-
ositions to explore whether either proposed class allega-
tion was worth pursuing. After the hearing, Harris
decided that rather than submit to depositions, it
would provide Albukerk with affidavits and exhibits
that it hoped would convince him that the unlawful
effort to collect money from Kasalo was an aberration
and that Harris’s usual practices conformed to the Act.
At a second status hearing, the parties agreed that the
first of the two class counts in the complaint was not
going anywhere. Albukerk told the judge that he still
thought that the second class count had promise, and he
said that he had discovered a third class theory that
he hoped to explore. Again the district court expressed
deep skepticism that it could certify a class, and it
said it was concerned that the class claims were so amor-
4 No. 10-2755
phous that class discovery would be unduly burden-
some for Harris. But again the court gave Albukerk
additional time. It ordered briefing on the class claims,
so that it could see what shape they might take and
what discovery Albukerk would need to assess their
potential merit. “It’s a preliminary class certification
issue,” the district judge said, “I want to know where
you’re going before we get to doing discovery and
then determining if you’ve discovered a class or not.”
The court set a deadline of March 31, 2010, for
Albukerk’s brief, with Harris’s response due two
weeks after that.
On the due date for his brief, Albukerk filed a motion
to amend the complaint to add a third class theory
and a separate motion for an extension of time to file
what he called a motion for class certification. The latter
request apparently referred to the brief that the dis-
trict court had ordered on the scope of class discovery.
Importantly, the court had never said that this brief
should also include a motion for class certification
or even address that topic more comprehensively.
The district court granted the motion to amend and the
extension, setting a new due date of April 7, 2010, for
Albukerk’s brief.
Once again, Albukerk failed to meet the court’s dead-
line. He explains to us now that he had become convinced
by April 7 that both of the class claims included in the
original complaint were dead in the water, presumably
because the evidence Harris had provided convinced
him that its effort to collect from Kasalo was a mistake
No. 10-2755 5
and not a normal business practice. We cannot
understand why Albukerk did not at least file a brief
statement with the district court on April 7 explaining
this, but he did not. Instead he decided unilaterally to
focus on the new class claim from that point forward.
He said nothing about this to the district court. Nothing
happened in the case for nearly two months—no
party filed any motion, and the district court did not
enter any orders.
On May 21, 2010, the district court set a third status
hearing for May 28. Five days later, the court reset
the hearing for June 18 at 9:30 a.m. Two days before
the hearing, the time was changed from 9:30 a.m. to
8:30 a.m. On the appointed day, Albukerk arrived in
the courtroom 16 minutes late. Just before he got there,
his case was called. Harris’s attorney informed the
judge that nothing had happened in the case, that
Kasalo’s individual claim had merit, and that Harris
thought that none of the class claims should move for-
ward. The court asked, “What do you suggest I do?”
To which Harris’s attorney answered, “Whatever you’d
like to do.” Then the district court said:
That’s the best suggestion I’ve had in a month,
maybe even longer.
Well, I think what I’d like to do is dismiss this
case for want of prosecution. We have given this
plaintiff multiple opportunities to file his petition
for class certification. As you say, he’s quite adamant
that this is a class action. He’s filed it as such. He’s
failed to proceed. He’s failed to advance the case,
6 No. 10-2755
and he’s not even here today, with no excuse or ex-
planation given. The case is dismissed for want of
prosecution.
When Albukerk showed up minutes later, the district
court informed him that his case had just been dis-
missed. The court asked why a motion for class certifica-
tion had not been filed, and Albukerk responded that
he no longer thought the class counts in the original
complaint had merit. He explained that he wished to
pursue the third class theory that he had mentioned
in connection with his motion to amend the com-
plaint, though he admitted that he had yet to file the
new complaint with the court. The district court
decided that the dismissal would stand, and it told
Albukerk to file a motion for reconsideration explaining
why he had been dragging his feet if he wanted the case
to continue. Albukerk did so promptly, but the district
court denied the motion, saying, “Plaintiff failed to
appear at the status hearing. Because the Court’s dis-
missal of this case for want of prosecution was based
on the entire history of this case, the Court denies plain-
tiff’s motion to reconsider.”
II
Albukerk is guilty of poor lawyering, and the district
court’s exasperation with his dogged determination to
invent a class action was justified. Nonetheless, we
must conclude that the court dismissed the case as a
whole too hastily. Albukerk’s conduct, which related
entirely to the class allegations, was not so inexcusable
No. 10-2755 7
that dismissal for want of prosecution without any
advance warning was appropriate. The district judge
had more reasonable options before it for addressing
Albukerk’s unprofessional behavior. Contrary to the
flippant suggestion made by Harris’s attorney, the
district courts do not have the power to do “whatever
they’d like to do.”
Dismissal for want of prosecution “is an extra-
ordinarily harsh sanction that should be used only in
extreme situations, when there is a clear record of delay
or contumacious conduct, or where other less drastic
sanctions have proven unavailing.” Gabriel v. Hamlin,
514 F.3d 734, 736 (7th Cir. 2008) (internal quotation
marks and citations omitted). The appropriateness of
this measure depends on all the circumstances of the
case. See National Hockey League v. Metropolitan Hockey
Club, 427 U.S. 639, 641-42 (1976); Link v. Wabash R. Co., 370
U.S. 626, 633 (1962). We have suggested a number of
factors that are relevant to the district court’s decision:
the frequency of the plaintiff’s failure to comply with
deadlines; whether the responsibility for mistakes is
attributable to the plaintiff herself or to the plaintiff’s
lawyer; the effect of the mistakes on the judge’s
calendar; the prejudice that the delay caused to the de-
fendant; the merit of the suit; and the consequences
of dismissal for the social objectives that the litigation
represents. Aura Lamp & Lighting Inc. v. International
Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003); Ball v.
City of Chicago, 2 F.3d 752, 755 (7th Cir. 1993).
Most of these factors weighed against dismissing
Kasalo’s individual case. Most strikingly, all of the
8 No. 10-2755
errors appear to be the fault of Albukerk and none
seems to have anything to do with Kasalo’s complaint
against Harris. In addition, while the class claims were
dubious, Kasalo’s claim had merit, and the dismissal
of that claim (about which more shortly) frustrates Con-
gress’s desire to provide a remedy for those wronged
by abusive debt-collection tactics. The defendants have
not explained any way in which they were prejudiced
by the delay. This is partly because the most significant
delay was that between the April 7 deadline for
Albukerk’s brief and the third status hearing in June;
but although the district court twice reset the status
hearing, there is no evidence that this was at Albukerk’s
prompting. No one involved in the case did anything
between April 7 and June 18. When we asked Harris’s
lawyer at oral argument what harm his client had
suffered, he could say only that attorney’s fees had
accrued along the way. But Harris presented no evi-
dence of any such expenses, and two months’ attorney’s
fees in a case like this would not be grounds for dis-
missal. Similarly, the detrimental effect on the
court’s calendar is not clear. Part of the problem in this
regard is that the district court issued just two terse
statements explaining the dismissal, and neither gives
us much insight about the court’s reasoning. The
district court said that the plaintiff failed to proceed
and that it was basing its decision on the whole history
of the case, but neither of those statements gives any
helpful detail.
The district judge also said that the decision was
based on the fact that it had given Albukerk many
No. 10-2755 9
chances to file a motion for class certification. By that
the court must have meant that Albukerk had been
ordered to file a brief discussing class discovery and had
received one extension of time in connection with that
filing. We agree with the district judge to the extent that
Albukerk’s worst offense was probably missing the
court’s April 7 deadline to file papers explaining the
feasibility of the class counts and how class discovery
might move forward. But as we have mentioned, the
district court never explicitly ordered Albukerk to file
a motion for class certification; and it certainly never
warned Albukerk that he would not be given a
chance, apart from that April 7 deadline, to do so.
While Albukerk certainly should have informed the
district court on April 7 that he intended to abandon
two of his class claims, we cannot say that this omission
justifies dismissal of the entire case. That leaves
Albukerk’s late arrival at the third status hearing as the
remaining reason for dismissal. (The district court said
Albukerk “failed to appear at the status hearing,” but
this is not the full story.). Perhaps if this truancy was
one in a line of examples of disrespect for the district
court’s timetable, it would have been a sufficient straw
to break the camel’s back. But that is not this case.
Albukerk’s failure to make it to the 8:30 a.m. status
on time does not justify the extreme measure of dis-
missal with prejudice.
We have said that courts should consider other sanc-
tions before dismissal, see Oliver v. Gramely, 200 F.3d
465, 466 (7th Cir. 1999), and we have required courts to
warn a plaintiff that she is on thin ice before the case is
10 No. 10-2755
thrown out, e.g., Gabriel, 514 F.3d at 737; Sharif v. Wellness
Int’l Network, Ltd., 376 F.3d 720, 725 (7th Cir. 2004); Aura
Lamp, 325 F.3d at 908. It is true that the warning require-
ment is not “a rigid rule . . . . It was intended rather as
a useful guideline to district judges—a safe harbor to
minimize the likelihood of appeal and reversal,” Fisher
v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir.
2006); see Link, 370 U.S. at 633 (“when circumstances
make such action appropriate, a District Court may
dismiss a complaint for failure to prosecute even with-
out affording notice of its intention to do so”). Often,
however, as here, a warning would help. The court’s
frustration with Albukerk’s attempt to turn this case
into a class action is evident in the transcripts of all
three status hearings, but thinly veiled hostility toward
a purported class action is not a substitute for an
explicit warning that an individual plaintiff must
develop her case or risk dismissal for failure to prose-
cute. There was no indication at any point that the case
might be dismissed. In fact, the district judge’s rulings
give the opposite impression: Albukerk was twice
granted extra time to develop his class claims, and the
district judge granted his motion to add another
class count to the complaint. Given the nature of
Albukerk’s mistakes, the court’s ongoing approach
to the case, and the lack of any explicit warning, we
think dismissal here was an abuse of discretion.
There were other options available to the district
court, but it never discussed them. The district court
dismissed the case without considering what claims
still were in the lawsuit. Most troublesome was the sum-
No. 10-2755 11
mary disposition of Kasalo’s individual claim for
statutory damages, despite Harris’s confession seconds
before dismissal that it intended to settle that claim. We
see no justification for dismissing Kasalo’s individual
claim. Federal Rule of Civil Procedure 41(b) provides,
“If a plaintiff fails to prosecute or to comply with . . . a
court order, a defendant may move to dismiss the action
or any claim against it.” (Emphasis added.) Even if the
district court had reason to dismiss all three class
counts for want of prosecution, the rules gave it leeway
to do so without terminating Kasalo’s meritorious
claim. Any delay in the case was attributable to class
issues, and it was those claims that were candidates
for dismissal. It is also worth noting that the low dollar
value of Kasalo’s individual claim is not a reason to
dismiss it. Congress has provided a remedy for victims
like Kasalo, and it is up to the plaintiff to decide
whether to pursue her individual claim. Harris admits
that it harmed Kasalo within the meaning of the Act,
and it should compensate her for that wrong. Whether
the rest of the case was appropriately dismissed or not
(and we have concluded that it was not), it was an
abuse of discretion to neglect Kasalo’s individual claim.
Finally, if it was the court’s serious doubt about the
class counts that motivated the dismissal for want of
prosecution, dismissal was still the wrong procedure
to choose. All the court needed to do was to enter-
tain the subject of class certification and make a proper
ruling. Federal Rule of Civil Procedure 23, and not
Rule 41, is the governing rule. The timing of class-certif-
ication decisions is regulated by Rule 23(c)(1)(A), which
12 No. 10-2755
says, “At an early practicable time after a person sues or
is sued as a class representative, the court must deter-
mine by order whether to certify the action as a class
action.” Consistent with this language, a court may
deny class certification even before the plaintiff files a
motion requesting certification. See, e.g., Cook County
College Teachers Union, Local 1600 v. Byrd, 456 F.2d 882, 884-
85 (7th Cir. 1972); see also Vinole v. Countrywide Home
Loans, Inc., 571 F.3d 935, 939-41 (9th Cir. 2009); Parker
v. Time Warner Entm’t Co., 331 F.3d 13, 21-22 (2d Cir.
2003). This is because a court has “an independent ob-
ligation to decide whether an action brought on a class
basis is to be so maintained even if neither of the
parties moves for a ruling under subdivision (c)(1),” 7AA
C HARLES A LAN W RIGHT, ET AL., F EDERAL P RACTICE &
P ROCEDURE § 1785, at 360-61 (3d ed. 2005). It need not
delay a ruling on certification if it thinks that additional
discovery would not be useful in resolving the class
determination, id. § 1785.3, at 470. Albukerk has
effectively conceded that the class claims in the original
complaint cannot proceed. On this record, we have
no way of knowing if his newly added third class theory
is any better. Accordingly, after permitting sufficient
discovery into the propriety of this third class count, the
district court will be in a position to make an appropri-
ate ruling. If it denies certification, Kasalo and her
attorney will have the option of petitioning for review
of that denial according to the procedures set out in
Rule 23(f).
Further proceedings are necessary to ensure that
Kasalo’s individual claim is resolved properly. Albukerk
No. 10-2755 13
is now on notice that he must prosecute the remaining
class theory expeditiously or risk a ruling on the
court’s own motion on class certification. We R EVERSE
and R EMAND for further proceedings consistent with
this opinion.
8-26-11