dissenting.
I would reverse the district court’s judgment dismissing Sexton’s action. I therefore respectfully dissent.
Initially, I note that I have a concern regarding the district court’s use of Rule 41, rather than Rule 37, to dismiss Sexton’s claim. While Rule 41 permits a court to dismiss an action for failure to comply with the court’s orders, see Fed. R. Civ. P. 41(b), portions of Rule 37 were specifically designed to address the failure of parties to submit expert reports, requiring the exclusion of such expert testimony and permitting additional sanctions. See Fed. R. Civ. P. 37(c)(1). The Supreme Court has stated that whether a court may dismiss an action based on noncompliance with a production order “depends exclusively upon Rule 37, which addresses itself with particularity to the consequences of a failure to make discovery by listing a variety of remedies which a court may employ as well as by authorizing any order which is ‘just.’” Societe Internationale Pour Participations Industrielles et Commercials v. Rogers, 357 U.S. 197, 207, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). The Court went on to state. “There is no need to resort to Rule 41(b), which appears in that part of the Rules concerned with trials and *622which lacks such specific references to discovery.” Id.
However, I base my disagreement with the majority primarily on the fact that I differ in my assessment of the four Regional Refuse factors as they apply in this case. I agree that the first two prongs of the Regional Refuse test, failure to cooperate as a result of fault and prejudice to the adversary, militate in favor of affirming dismissal.
As to the third prong, however, I do not read the record to indicate that Sexton was given sufficient notice of the possibility of dismissal. Indeed, the hearing that resulted in the dismissal of this case was held to determine whether Sexton’s expert witnesses would be permitted to present testimony, not whether the lawsuit would be dismissed. It does appear that exclusion of the expert testimony would eventually lead to dismissal of the case, but I do not think that it can be said that the two are one in the same. The scheduling order issued by the district court warned that witnesses not disclosed in conformity with Rule 26 “may not be used at trial,” but did not indicate that such a failure to comply would be cause for dismissal. While the failure of the court to give notice of the possibility of dismissal does not automatically render such a dismissal void, we have emphasized the importance of providing notice to the parties, stating that prior notice is a key consideration when applying the Regional Refuse test. Stough v. Mayville Cmty. Schs., 138 F.3d 612, 615 (6th Cir.1998). Indeed, we consider such a dismissal an abuse of discretion “unless the derelict party has engaged in bad faith or contumacious conduct.” Harmon v. CSX Transportation, Inc., 110 F.3d 364, 367 (6th Cir.1997) (citation omitted). I do believe that Sexton’s counsel is at fault, and that the advocacy here has been inadequate. However, in my view, there has been no showing of bad faith or contumacious conduct.
Lastly, we must consider whether less drastic sanctions were imposed or considered prior to dismissal. “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.” Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980). The record does not indicate that any less drastic sanctions were imposed or considered at any point during the proceedings. While failure to expressly consider such lesser sanctions does not, in and of itself, require this Court to find an abuse of discretion, “in the absence of such consideration, and ‘in the absence of contumacious conduct, an alternate sanction that would protect the integrity of pretrial procedures should be utilized rather than dismissal with prejudice.’ ” Harmon, 110 F.3d at 367-68 (quoting Freeland v. Amigo, 103 F.3d 1271, 1280 (6th Cir.1997)). Thus, I believe that properly weighing the four Regional Refuse factors requires reversal of the district court.
The appropriate balance becomes even more clear here when considered in light of other relevant factors. First, it is important to recognize that the district court dismissed this case sua sponte. The defendants never moved for the district court to dismiss this case pursuant to Rule 37 or Rule 41. We have warned that “[a] district court should proceed with great caution when dismissing a claim sua sponte.” Boddie v. Am. Broad. Cos., 731 F.2d 333, 336 n. 2 (6th Cir.1984). We have also been “reluctant to uphold the dismissal of a case ... merely to discipline an errant attorney because such a sanction deprives the client of his day in court.” Buck v. U.S. Dep’t of Agric. Farmers Home Admin., 960 F.2d 603, 608 (6th Cir.1992). Thus, “[dismissal *623is usually inappropriate where the neglect is solely the fault of the attorney.” Carter, 636 F.2d at 159. As a result of this Court’s heightening recognition of this principle, it has “increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. Am. Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994)
Thus, given: (1) the appropriate balance of the Regional Refuse factors; (2) that these factors are viewed in a manner more favorable to the plaintiff when the dismissal was caused by the conduct of the plaintiffs counsel, Harmon, 110 F.3d at 367; (3) the caution with which a district court should proceed when dismissing a case sua sponte, Boddie, 731 F.2d at 336 n. 2; (4) the established precedent that this type of dismissal is only appropriate where the derelict party has engaged in bad faith or contumacious conduct, Harmon, 110 F.3d at 367; (5) the lack of bad faith and contumacious conduct present in this case: and (6) this Court’s extreme hesitance to deprive innocent parties of their day in court due to the mistakes of their counsel. Buck, 960 F.2d at 608. Sexton’s right to sue outweighs any harm demonstrated by the defendants, see Coleman, 23 F.3d at 1096.
I respectfully dissent.