NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 29, 2012*
Decided December 18, 2012
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 12‐2539 Appeal from the
United States District Court for the
DANIELLE HOLT, Northern District of Illinois,
Plaintiff‐Appellant, Eastern Division.
v. No. 10 C 7917
LOYOLA UNIVERSITY OF CHICAGO, Blanche M. Manning,
Defendant‐Appellee. Judge.
O R D E R
Danielle Holt appeals the dismissal of her employment‐discrimination suit against
Loyola University of Chicago, her former employer, based on her failure to appear at
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
No. 12‐2539 Page 2
numerous scheduled hearings (including her deposition) and other violations of court
orders. We affirm.
Holt, an African‐American, was employed by Loyola as an Assessment Coordinator,
responsible for training staff on evaluating student and employee performances. Loyola
fired her in 2009, citing plagiarism and other unsatisfactory work performance. Holt then
sued Loyola for racial discrimination under Title VII of the Civil Rights Act of 1964 and
42 U.S.C. § 1981.
Pretrial proceedings did not go smoothly. Eleven months into the case, Loyola
attempted to depose Holt, but she got into an argument with her attorney and the
deposition did not take place. Holt’s attorney eventually withdrew, and Holt continued to
litigate her case pro se. After she missed several appearances at scheduled hearings, the
district judge warned her that another absence “will result in an order dismissing this case
for want of prosecution.” During this time, Holt called the clerk’s office repeatedly to
discuss personal matters, request counsel, and attempt to explain her prior absences. The
court denied her request for counsel and instructed her not to call the court about personal
matters. Soon thereafter, Holt failed to appear at her rescheduled deposition, despite
previously confirming the date with Loyola’s attorney. Loyola then moved for sanctions
under Rule 37(d) of the Federal Rules of Civil Procedure based on Holt’s persistent failure
to cooperate with her deposition. The district court set a hearing date on that motion, but
Holt again failed to appear.
The court then dismissed the case for want of prosecution, explaining that Holt’s
repeated missed court and deposition dates, and her failure to comply with the court’s
order to refrain from unnecessarily calling the clerk’s office, had abused the litigation
process and imposed undue costs on the court and Loyola. The apparent basis for the
dismissal was Rule 41(b) of the Federal Rules of Civil Procedure; the court stated that it
need not rule on Loyola’s Rule 37 motion for sanctions because Holt had engaged in a “clear
pattern of delay and contumacious conduct” and had previously been warned about her
absences.
On appeal Holt generally asserts that the district court abused its discretion by
dismissing her case, and should not have held her responsible for missing court and
deposition dates and repeatedly calling the clerk’s office. She blames her first missed
deposition on her attorney and maintains that she unsuccessfully tried to reschedule the
second date. She also reargues the merits of her case at length, but those arguments are not
properly before us.
No. 12‐2539 Page 3
Dismissal for want of prosecution under Rule 41(b) is a harsh sanction that should
only be used “when there is a clear record of delay or contumacious conduct, or where other
less drastic sanctions have proven unavailing.” Kasalo v. Harris & Harris, Ltd., 656 F.3d 557,
561 (7th Cir. 2011) (quotation marks omitted). We will find an abuse of discretion where a
district court “fails to consider an essential factor.” Kruger v. Apfel, 214 F.3d 784, 786 (2000).
Factors that district courts should consider before dismissing a case include the frequency
and egregiousness of the plaintiff’s failure to comply with deadlines, the effect of delay on
the court’s calendar, and the prejudice resulting to the defendants. Kasalo, 656 F.3d at 561;
Kruger, 214 F.3d at 787.
The district court considered all of these factors in its order dismissing the case, and
we conclude that it properly exercised its discretion in doing so. Holt was repeatedly
warned about her conduct and had many opportunities to comply with deadlines and court
orders. The court found that “Ms. Holt knew about the [rescheduled] deposition and the
[hearing on the motion for sanctions] and chose not to appear”; she also “appeared to
believe that she could litigate this case however she wished.” As the court pointed out,
however, the failed depositions and missed court dates wasted Loyola’s time and money,
and the numerous unauthorized phone calls to the clerk’s office taxed the court’s resources.
A lesser sanction was not necessary, because Holt had been explicitly warned about the
prospect of dismissal if she continued to ignore court orders. Holt’s attempt to blame her
attorney for the first failed deposition misses the point; her own pattern of inattention and
abuse of the court’s staff amply justifies the dismissal. See Bakery Mach. & Fabrication, Inc. v.
Traditional Baking, Inc., 570 F.3d 845, 848–49 (7th Cir. 2009) (citing Link v. Wabash R.R. Co.,
370 U.S. 626, 633–34 (1962)); Stanciel v. Gramley, 267 F.3d 575, 581 (7th Cir. 2001).
Although the district court did not rule on Loyola’s Rule 37(d) motion, that rule
would also have provided an adequate basis for dismissing this case. Sanctions under
Rule 37 require a finding that the offending party acted with willfulness, bad faith, or fault;
dismissal should be imposed only if “proportionate to the circumstances.” See Collins v.
Illinois, 554 F.3d 693, 696 (7th Cir. 2009). Here, the district court found that Holt acted
willfully based on her knowledge of scheduled dates and the court’s warnings about her
dilatory behavior. Under the circumstances, dismissal under Rule 37(d) would have been an
appropriate and proportionate sanction.
AFFIRMED.