[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 10, 2008
No. 07-13238 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-80334-CV-WJZ
RENEE BETTIS,
Plaintiff-Appellant,
versus
TOYS "R" US - DELAWARE, INC.,
a Delaware Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 10, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Renee Bettis appeals the district court’s dismissal without prejudice of her
employment discrimination action, brought pursuant to Title VII, 42 U.S.C.
§ 2000e, the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), the
Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, and the Florida Civil
Rights Act (“FCRA”), Fla. Stat. § 760.11. For the following reasons, we vacate
and remand.
I.
Bettis filed a six count complaint against Toys “R” Us, alleging gender
discrimination under Title VII and the FCRA and violations of the PDA in
connection with changes to the terms of her employment and her ultimate
discharge. The court later granted Bettis’s motion to amend her complaint to add
one count under the FMLA.
On July 16, 2006, the court issued its order setting the pre-trial conference
date for June 29, 2007, and advising the parties, inter alia, to be ready for trial any
time after that date and that pre-trial stipulations were due by June 15, 2007.
Dispositive motions were due April 30, 2007.
Toys “R” Us began its deposition of Bettis on February 6, 2007. Because
Bettis had not submitted all the documents requested, the parties agreed to continue
the deposition at a later date. When Bettis amended her complaint to include the
FMLA claim, the parties agreed that this issue would be addressed at a subsequent
2
deposition in March 2007. Bettis, however, canceled the deposition a week before
it was scheduled to occur.
During discovery, Toys “R” Us filed a motion to compel discovery requests,
asserting that Bettis’s responses to discovery requests had been inadequate,
evasive, incomplete, and unresponsive.1 Prior to filing the motion to compel,
defense counsel attempted to resolve the discovery disputes with Bettis’s counsel,
and Bettis’s counsel expressed an intent to supplement the responses. However,
counsel failed to follow through. The district court ordered Bettis to respond to the
motion to compel within ten days or the court would grant the motion. After
receiving Bettis’s response, the court then granted the motion to compel in part,
ordering Bettis to file proper responses to two interrogatories by April 4, 2007. Per
the court’s order, Bettis submitted “plaintiff’s better answers to defendant’s first
set of interrogatories.” Toys “R” Us did not consider the answers acceptable and
filed a motion for sanctions for the failure to comply with the court’s order. The
court granted the motion for sanctions because Bettis failed to comply with the
court’s order to answer the interrogatories, and instructed Bettis to answer by May
1
We note that the record reflects that throughout the litigation, Bettis’s counsel was
uncooperative, failed to correspond with defense counsel or to respond to defense counsel’s
communications, and failed to comply with the court’s orders. In addition, during depositions,
Bettis’s attorney repeatedly instructed Bettis not to answer questions, interrupted defense counsel,
and coached the witness.
3
1 or face contempt or dismissal.
Toys “R” Us moved (1) to compel Bettis’s deposition, (2) for sanctions due
to discovery violations, and (3) for an extension of time to file dispositive motions.
The court granted the motion to compel the deposition, but denied the motion for
sanctions and for an extension of time. The deposition was rescheduled for April
11, 2007.
Toys “R” Us then filed a motion for a protective order with respect to
Bettis’s fourth set of requests to admit, which included 399 requests, and the
subsequent corrected version, which listed 375 requests. Toys “R” Us noted that
the case was a single issue, “garden variety” employment action, and that the
requests were duplicative, overbroad, repetitive, and irrelevant. On April 30,
2007, the court granted a protective order with respect to the fourth corrected set of
requests to admit, but otherwise denied the motion. That same day, Bettis filed her
opposition to the protective order.
Toys “R” Us moved for summary judgment on April 30, 2007, and later
amended the motion after it learned that Bettis had not disclosed her bankruptcy
filing during her depositions. On May 2, 2007, the day after Bettis’s responses
were due, Toys “R” Us moved for relief due to Bettis’s failure to respond to the
court’s order to answer the interrogatories, asserting that the response, which was
4
received a day late, was still deficient. Bettis requested an extension to respond to
the summary judgment motion, and the court granted the request, ordering Bettis to
respond to the amended summary judgment motion by noon on June 11, 2007. On
June 11, at 12:53 pm, Bettis filed her response.
Per the court’s order at the beginning of the case, the pre-trial stipulations
were due June 15, 2007. On June 14, Bettis filed a motion for extension of time.2
Toys “R” Us responded that it had made several attempts to coordinate the pre-trial
statement with Bettis’s counsel, but that counsel had refused to respond and had
waited until the day before the statement was due to seek the extension. The court
denied Bettis motion for an extension of time. The court then sua sponte issued a
“final order of dismissal,” dismissing the complaint without prejudice for failure to
comply with the court’s order to set a pre-trial conference and to comply with
Local Rule 16.1.3 The court denied all pending motions as moot.
Bettis now appeals, challenging the court’s dismissal without prejudice, the
decision granting a protective order on discovery requests, and arguing that the
district court judge should have recused himself due to bias. She further asserts
that, on remand, the case should be reassigned to a different judge. Toys “R” Us
2
Bettis filed the motion after 5 p.m. on June 14.
3
Rule 16.1 governs pre-trial procedure in civil actions. S.D. Fla. L. R. 16.1. This rule also
requires the parties to file pre-trial stipulations. Rule 16.1(E). The penalty for failure to comply
includes dismissal. Rule 16.1(M).
5
also challenges whether we have jurisdiction over the appeal.
II.
A. Jurisdiction
Toys “R” Us argues that there is no final order disposing of all claims
because the FCRA and FMLA claims can be refiled within the limitations period.
According to Toys “R” Us, where a party seeks to appeal fewer than all claims, the
district court must certify the appeal under Fed. R. Civ. P. 54(b).4
We review de novo questions concerning jurisdiction. Williams v. Chatman,
510 F.3d 1290, 1293 (11th Cir. 2007). Where there is a question as to the court’s
appellate jurisdiction, we must address it before turning to the merits of the appeal.
Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1229 (11th Cir.
2007).
Section 1291 provides the general rule that this court has “jurisdiction of
appeals from all final decisions of the district courts of the United States.” 28
U.S.C. § 1291. Because the district court’s order in the instant case disposed of all
claims, we have jurisdiction. Robinson v. Federal Nat. Mortg. Ass’n, 673 F.2d
4
Rule 54(b) is inapplicable here. Under Fed. R. Civ. P. 54(b), “[w]hen an action presents
more than one claim for relief . . . the court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than
all the claims . . . does not end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims . . . .” Fed. R. Civ. P. 54(b). Here,
the court adjudicated all the claims by dismissing the amended complaint without prejudice.
6
1247, 1249 (11th Cir 1982).
B. Dismissal without prejudice
Bettis argues that although the court dismissed without prejudice, the fact
that the limitations period has run on some of her claims makes the dismissal the
equivalent of a dismissal with prejudice. She contends that the court failed to
determine if lesser sanctions would suffice, and failed to consider whether there
was a clear record of willful conduct.
We review dismissals under Fed.R.Civ.P. 41 for abuse of discretion.5
Gratton v. Great American Communications,178 F.3d 1373, 1374 (11th Cir. 1999);
Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). “Discretion means the
district court has a ‘range of choice, and that its decision will not be disturbed as
long as it stays within that range and is not influenced by any mistake of law.’”
Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005)
(quoting Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d
1317, 1324 (11th Cir. 2005)).
The district court possesses the inherent power to police its docket. Link v.
5
The district court also has broad authority under Rule 37 to control discovery, including
dismissal as the most severe sanction. See Fed.R.Civ.P. 37(b)(2)(C); Phipps v. Blakeney, 8 F.3d
788, 790 (11th Cir. 1993) (reviewing dismissal under Rule 37 for abuse of discretion). Rule 37
sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the
discovery process. See Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982).
7
Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734
(1962). Rule 41(b) authorizes a district court to dismiss a complaint for failure to
comply with a court order or the federal rules. Fed.R.Civ.P. 41(b); Goforth, 766
F.2d at 1535. As this court has explained,
[A] dismissal with prejudice, whether on motion or sua sponte, is an
extreme sanction that may be properly imposed only when: (1) a party
engages in a clear pattern of delay or willful contempt (contumacious
conduct); and (2) the district court specifically finds that lesser
sanctions would not suffice.... Moreover, the harsh sanction of
dismissal with prejudice is thought to be more appropriate in a case
where a party, as distinct from counsel, is culpable.
Betty K. Agencies Ltd., 432 F.3d at 1339; Gratton, 178 F.3d at 1374; Goforth, 766
F.2d at 1535.
Thus, dismissal under Rule 41(b) is appropriate where there is a clear record
of “willful” contempt and an implicit or explicit finding that lesser sanctions would
not suffice. Gratton, 178 F.3d at 1374; see also Zocaras v. Castro, 465 F.3d 479,
484 (11th Cir. 2006); Goforth, 766 F.2d at 1535. Mere negligence or confusion is
not sufficient to justify a finding of delay or willful misconduct. McKelvey v. AT
& T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986). In general, where the
plaintiff has been forewarned, dismissal following the plaintiff’s disregard of an
order is not an abuse of discretion. Moon v. Newsome, 863 F.2d 835, 837 (11th
Cir. 1989).
8
Here, although the court dismissed the complaint without prejudice, some of
Bettis’s claims would now be time barred;6 thus the dismissal was in effect a
dismissal with prejudice. When an order “has the effect of precluding [plaintiff]
from refiling [her] claim due to the running of the statute of limitations ... [t]he
dismissal [is] tantamount to a dismissal with prejudice.” Burden v. Yates, 644
F.2d 503, 505 (5th Cir. Unit B 1981).7
After a thorough review of the record, we conclude that the district court
abused its discretion by dismissing the complaint. Although the record is replete
with instances in which Bettis’s counsel failed to comply with court orders, and the
court warned Bettis that the failure to comply could result in dismissal, there is no
explicit finding that the conduct was willful and not mere negligence. And, based
on the record before us, we cannot infer such a finding. Moreover, although the
court imposed other sanctions, those sanctions were to compel discovery and did
not include fines, contempt, or disciplinary actions against the attorney. Because
6
As the parties concede, the Title VII and PDA claims are time-barred. The FMLA claims
either expired in 2007 or are still viable until August of 2008, depending on whether the two or
three-year limitations period applies. 29 U.S.C. § 2917(c). The only remaining claims are the
FCRA issues, which enjoy a four-year limitations period. Fla. Stat. § 760.11(1).
7
The decisions of the former Fifth Circuit rendered before October 1, 1981 are binding on
this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). After that
date, however, only the decisions of the continuing Fifth Circuit’s Administrative Unit B are binding
on this circuit, while Unit A decisions are merely persuasive. Dresdner Bank AG v. M/V
OLYMPIA VOYAGER, 446 F.3d 1377, 1381 n.1 (11th Cir. 2006); Stein v. Reynolds Sec., Inc., 667
F.2d 33, 34 (11th Cir. 1982).
9
the dismissal is, in effect, with prejudice, the district court abused its discretion,
and we vacate and remand with instructions for the court to consider other
sanctions.
C. Protective Order
Bettis next argues that the court abused its discretion by granting the motion
for a protective order without waiting for her to file her response.
We review the district court’s efforts to manage discovery for abuse of
discretion. Adkins v. Christie, 488 F.3d 1324, 1330 (11th Cir. 2007), cert. denied,
128 S.Ct. 903 (2008); Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th
Cir. 1999). This court will reverse if it concludes that in limiting discovery, the
district court “made a clear error of judgment ... or ... applied an incorrect legal
standard.” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1159 (11th Cir.
2004) (citing Alexander v. Fulton County, 207 F.3d 1303, 1326 (11th Cir. 2000)).
Federal Rule of Civil Procedure 26(c) specifically provides that a party may
file a motion for a protective order to:
protect a party or person from annoyance, embarrassment, oppression,
or undue burden or expense, including ... including one or more of
the following: (A) forbidding the disclosure or discovery; (B)
specifying terms, including time and place, for the disclosure or
discovery; (C) prescribing a discovery method other than the one
selected by the party seeking discovery; (D) forbidding inquiry into
certain matters, or limiting the scope of disclosure or discovery to
certain matters.
10
Fed.R.Civ.P. 26(c)(1(A)-(D).
Considering the court’s inherent power to manage its docket, Link, 370 U.S.
at 629-630, we conclude that the court did not abuse its discretion. Bettis
submitted her fourth request for admissions, which contained 399 requests. She
then submitted a corrected version, which contained 375 requests. The case
involved a single issue employment claim and the requests were repetitive and
sought irrelevant information.
With respect to whether there was an abuse stemming from the court’s
granting of the motion prior to receiving Bettis’s response, there was no error.
Neither the Federal Rules of Civil Procedure nor the Local Rules require the court
to obtain a response from the non-moving party before ruling on a motion for a
protective order. See Fed. R. Civ. P. 26; S.D. Fla. L.R. 26.1(H)(3).
D. Recusal and Reassignment
Finally, Bettis argues that this court should assign the case to a different
judge on remand because the district judge should have recused himself due on
bias or the mere appearance of bias against working mothers in light of his
connections to a conservative, Christian law school and other conservative
organizations.8
8
Specifically, Bettis argues that the judge’s hiring of several law clerks from Ava Maria
Law School, his financial support of that school, and his participation in organizations such as the
11
1. Recusal
Because Bettis failed to seek recusal of the district court judge in the
proceedings below by filing an affidavit pursuant to 28 U.S.C. § 144, we review
the judge’s decision not to recuse himself sua sponte under 28 U.S.C. § 455 for
plain error. Hamm v. Members of Bd. of Regents of State of Fla., 708 F.2d 647,
651 (11th Cir. 1983). “To disqualify a judge under § 455(a), the bias ‘must stem
from extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias
and prejudice that it unfairly prejudices one of the parties.’”9 United States v.
Bailey, 175 F.3d 966, 968 (11th Cir. 1999). An adverse ruling does “‘not provide
a party with a basis for holding that the court’s impartiality is in doubt.’” Byrne v.
Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001)).
Here, there was no plain error in the judge’s failure to sua sponte recuse.
Bettis has established no bias – or even an appearance of bias. Moreover, a review
of the record establishes that the court was even-handed in resolving the motions
before it.
2. Reassignment on remand
Federalist Society establish bias.
9
The federal code provides: “Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned . . . He shall also disqualify himself in the following circumstances: (1) Where he has
a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).
12
This court has authority to reassign a case on remand. See 28 U.S.C. § 2106
(1994); United States v. Remillong, 55 F.3d 572, 577-78 n.12 (11th Cir. 1995).
Three factors inform the decision to reassign a case on remand: “(1) whether the
original judge would have difficulty putting his previous views and findings aside;
(2) whether reassignment is appropriate to preserve the appearance of justice; (3)
whether reassignment would entail waste and duplication out of proportion to the
gains realized from reassignment.” Chudasama v. Mazda Motor Corp.,123 F.3d
1353, 1373 (11th Cir. 1997) (citation omitted); see also CSX Transp., Inc. v. State
Bd. of Equalization, manuscript op. at 2-3 (No. 05-16000) (11th Cir. Mar. 25,
2008).
Considering these factors, we conclude reassignment is unnecessary.
Notably, the facts Bettis relies upon to argue an appearance of impropriety were
not before the district court. Rather, it seems that she is attempting to create an
appearance of impropriety to further her request for recusal and reassignment.
There is no appearance of impropriety. Moreover, this case has been pending for a
significant length of time, and although the case is not complex, it would be a
waste of judicial resources to reassign the case. Accordingly, we decline to order
the case reassigned on remand.
VACATED and REMANDED.
13