Blackwell v. J C Penney

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-20707
_____________________
ANGELA BLACKWELL,
Plaintiff-Appellant
v.
J C PENNEY; KEVIN GEBHARDT,
Defendants-Appellees
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(CA-H-93-2669)
_________________________________________________________________
July 11, 1996
Before KING, JONES, and DEMOSS, Circuit Judges.
PER CURIAM:*
Angela Blackwell appeals the district court’s dismissal of
her retaliation claim for lack of prosecution and failure to
cooperate in discovery. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Angela Blackwell (“Blackwell”) brought this action against
her former employer J.C. Penney Company, Inc. and her former
supervisor Kevin Gebhardt (collectively, the “Defendants”),
*
Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
alleging discrimination on the basis of her sex, race, and
age, negligent supervision, breach of contract, intentional
infliction of emotional distress, and retaliation. The district
court granted summary judgment to the Defendants on all claims
except the retaliation claim.1
Before the trial on the retaliation claim, the Defendants
made an oral motion to dismiss for want of prosecution and for
failure to cooperate in discovery. In support of this motion,
the Defendants informed the court that:(1) as of the date of
trial, Blackwell had not presented Defendants with complete
answers to their discovery requests, despite a court ordered
sanction of $482.50 and two court orders compelling conformance
with these discovery requests;(2) Blackwell failed to forward
Defendants copies of her response to their motion for summary
judgment and the affidavits attached thereto; and (3) Blackwell
failed to provide Defendants with a copy of her exhibit and
witness lists although both are required pursuant to local rules.
The district court orally granted the Defendants’ motion. In
a subsequent Memorandum Order, the court held that, by
prosecuting the case in bad faith and engaging in contumacious
conduct, Blackwell had impeded Defendants’ ability to prepare for
trial. The court also stated that lesser sanctions would be
futile because Blackwell disregarded court orders even after the
court had awarded sanctions against her. Blackwell timely
appealed.
1
Blackwell does not appeal the summary judgment.
2
II. DISCUSSION
On appeal, Blackwell contends that the district court has
limited authority to dismiss an action with prejudice and that
the court abused its discretion when it dismissed the case for
want of prosecution and for failure to respond to discovery. She
claims that neither the requisite elements nor the aggravating
factors for a dismissal with prejudice have been met. In
addition, she argues that even if the requisite elements have
been met, the case should not have been dismissed because the
disobedient conduct that resulted in the dismissal was that of
her former counsel and not her own.
The district court’s authority to dismiss under Federal Rules
of Civil Procedure 37 and 41(b) has been well established. See
Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); see also Truck
Treads, Inc. v. Armstrong Rubber Co., 818 F.2d 427, 428 (5th Cir.
1987)(dismissal affirmed on basis of district court’s finding of
bad faith failure to comply with previous discovery order);
Bluitt v. Arco Chemical Co., 777 F.2d 188, 189 (5th Cir.
1985)(dismissal affirmed for failure to comply with discovery
orders). This court will uphold a district court’s involuntary
dismissal with prejudice absent an abuse of discretion. Price v.
McGlathery, 792 F.2d 472, 474 (5th Cir. 1986); Morris v. Ocean
Systems, Inc., 730 F.2d 248, 251 (5th Cir. 1984).
Because dismissal is a harsh sanction, an involuntary
dismissal is affirmed only if a clear record of delay or
contumacious conduct by the plaintiff exists and lesser sanctions
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would not serve the best interests of justice. Price, 792 F.2d
at 474; Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159
(5th Cir. 1985); Callip v. Harris County Child Welfare Dep’t, 757
F.2d 1513, 1519 (5th Cir. 1985). Further, this court has stated
that most of the cases in which dismissals have been affirmed
involved the presence of one or more of the three following
“aggravating factors”: (1) delay attributable directly to the
plaintiff, rather than the attorney; (2) actual prejudice to the
defendant; and (3) delay caused by intentional conduct. Price
792 F.2d at 475; Sturgeon, 778 F.2d at 159; Callip, 757 F.2d at
1519. These aggravating factors, however, are not prerequisites
to dismissal. See Rogers v. Kroger Co., 669 F.2d 317, 320 n.5
(5th Cir. 1982)(“The terms ‘requisite’ and ‘aggravating’ are used
because we assume that the presence of the former can alone
justify dismissal.”); cf. Price 792 F.2d at 475 (the existence of
one aggravating factor, coupled with the record of delay or
contumacious conduct and consideration of lesser sanctions,
supported a dismissal with prejudice).
Under this standard, we find no abuse of discretion. The
district court determined that Blackwell willfully ignored
Defendants’ appropriate requests for information, violated two
orders of the court, and failed to provide Defendants with
witness and trial exhibit lists before trial. In addition,
because Blackwell failed to cooperate in discovery even after the
court awarded monetary sanctions against her, the court concluded
that lesser sanctions would be ineffective. Cf. Damiani v. Rhode
4
Island Hosp., 704 F.2d 12, 15 (1st Cir. 1983)(“There is nothing
in [Rule 37(b)(2)] that states or suggests that the sanction of
dismissal can be used only after all of the other sanctions have
been considered or tried.”) Finally, the court found two of the
aggravating factors present: actual prejudice to the defendant
and delay caused by intentional conduct. Therefore, the district
court did not abuse its discretion in dismising Blackwell’s
claim.
Blackwell also argues that the dismissal unjustly punishes
her for the misconduct of her former counsel. The Supreme Court
has held, however, that a plaintiff is responsible for the
actions of his attorney. Accordingly, the district court did not
abuse its discretion when it attributed the misconduct of
Blackwell’s attorney to Blackwell. See Link, 370 U.S. at 633-34;
see also Pryor v. United States Postal Serv., 769 F.2d 281, 288
(5th Cir. 1985)(holding that mistakes of counsel are chargeable
to the client, particularly in civil litigation).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
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