Fischer, Donna v. Cingular Wireless

In the
United States Court of Appeals
For the Seventh Circuit
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No. 05-3391
DONNA B. FISCHER,
Plaintiff-Appellant,
v.
CINGULAR WIRELESS, LLC,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 04 C 7629—Charles P. Kocoras, Chief Judge.
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SUBMITTED APRIL 6, 2006—DECIDED MAY 1, 2006
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Before BAUER, POSNER, and WOOD, Circuit Judges.
POSNER, Circuit Judge. This appeal from the dismissal
of a lawsuit because of the plaintiff’s failure to prosecute
it requires us to consider whether an explicit warning to the
plaintiff must always precede such a dismissal.
On November 23, 2004, Donna Fischer filed a suit pro se
against her former employer, Cingular, charging age and
sex discrimination. The district judge dismissed the case
without prejudice after Fischer failed to appear at the
first two status hearings that he had scheduled. She
moved to reinstate the case, claiming that she hadn’t
2 No. 05-3391
received notice of the hearings; and on April 21, 2005, the
district court vacated the dismissal and directed that
discovery be completed by August 22. The parties agreed to
exchange their Rule 26(a)(1) disclosures by May 20.
Cingular complied with the deadline. Fischer did not but
instead requested an extension of time to June 17, to which
Cingular agreed. Cingular also served Fischer with a
document request under Rule 34 and interrogatories
under Rules 26 and 33—all with a deadline of June 27 for
her responses—and a notice scheduling her deposition
under Rule 30(a)(1) for July 15. On June 25, Fischer told
Cingular that she would be unable to comply with the
June 27 deadline (she had still not complied with the June 17
deadline for the Rule 26(a)(1) exchange) but would comply
by July 1. When by July 11 Fischer still had not produced
either her Rule 26(a)(1) disclosures or her responses to the
discovery demands, Cingular moved the district court for
an order to compel her responses to its discovery requests
and command her “to agree to present herself for her
deposition on one of the following dates: July 20th, July
26th, August 1st, August 2nd, or August 3rd, or face dismissal
of this case for failure to prosecute” (emphasis added).
At an oral hearing on Cingular’s motion, Fischer tried
to excuse her failure to comply with the company’s dis-
covery requests. But she entangled herself in contradictions,
first volunteering that her written responses were “partially
done” and that she “was putting [them] in the mail today,”
then acknowledging that she hadn’t been able to comply
“because I work six days a week” and later still “because I
had a [real estate] trial,” then returning to her first point: “I
was ready for my—ready to put it in the mail today.” She
told the court that she was prepared to be deposed on July
15 as agreed, but then she backtracked, saying that “we had
No. 05-3391 3
agreed on a Thursday for all of my depositions, and
[Cingular] did not give me Thursdays.”
The district judge rejected Fischer’s excuses and told
her “it is not a question of preparedness, it is a question of
doing.” Noting the inconsistencies in her explanations
and the fact that the case had been dismissed once before for
failure to prosecute, the judge now dismissed the case with
prejudice, precipitating this appeal. He did so without
warning Fischer that dismissal loomed, though Ball v. City
of Chicago, 2 F.3d 752, 760 (7th Cir. 1993), says there “must”
be such a warning, and Ball’s “must” was quoted in Aura
Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d
903, 907-08 (7th Cir. 2003); see also Williams v. Chicago Board
of Education, 155 F.3d 853 (7th Cir. 1998), while In re Bluestein
& Co., 68 F.3d 1022, 1025 (7th Cir. 1995) (per curiam), says
that the court “should” warn attorneys but “must” warn pro
se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.
2000), that the court generally “should” warn but “must”
warn if the plaintiff’s failure to prosecute is due only to
ordinary misconduct. Most of our cases, however, soften
“must” to “should,” Harrington v. City of Chicago, 433 F.3d
542, 549 (7th Cir. 2006); Moffitt v. Illinois State Board of
Education, 236 F.3d 868, 873 (7th Cir. 2001); Kruger v. Apfel,
214 F.3d 784, 787 (7th Cir. 2000) (per curiam); Dunphy v.
McKee, 134 F.3d 1297, 1301 (7th Cir. 1998), or treat the terms
as interchangeable (as in Ball, Bluestein, and Williams), or
term the requirement of a warning merely the “general”
rule. Federal Election Comm’n v. Al Salvi for Senate Committee,
205 F.3d 1015, 1018 (7th Cir. 2000). Several of our cases (two
discussed in the next paragraph—plus Ball itself, the
original of the “must” requirement) are explicit that a
warning is not always required, as are a number of cases in
other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d
Cir. 2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th
4 No. 05-3391
Cir. 2000); Rodgers v. Curators of the University of Missouri,
135 F.3d 1216, 1221 (8th Cir. 1998); Ehrenhaus v. Reynolds, 965
F.2d 916, 919, 921-22 (10th Cir. 1992).
Ball’s use of “must” was not intended to lay down a
rigid rule, as is clear from discussion elsewhere in the
opinion. 2 F.3d at 756. It was intended rather as a useful
guideline to district judges—a safe harbor to minimize the
likelihood of appeal and reversal. Ball differs only in tone
and nuance from the earlier discussion of the warning issue
in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir. 1994),
where we said that “although district courts are encouraged
to warn litigants before dismissing a case for failure to
prosecute, whether they in fact do so is clearly within their
discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.
1991). Leaving the decision to the district courts ensures that
dilatory tactics are sanctioned appropriately. The prejudice
incurred by a delay in one case may far outweigh that
caused in another. Were district courts required to warn
litigants before dismissing a case, we would in effect be
granting each litigant one opportunity to disregard the
court’s schedule without fear of penalty regardless of the
harm done to other litigants. Such a rule would
impermissibly burden the district courts in their efforts to
manage their dockets. Using this standard, we held in
Lockhart that inconsistencies in the plaintiff’s excuse for not
attending a discovery-related status hearing combined with
the plaintiff’s record of dilatory conduct supported the trial
judge’s decision to dismiss the case with prejudice even
though he did not provide a warning beforehand.” Granted,
the facts in Johnson were more extreme than in this case, and
Kruger v. Apfel, supra, 214 F.3d at 787, sought to confine
Johnson; but it did not purport to overrule it.
Cingular’s request that the suit be dismissed if Fischer
continued to disregard discovery deadlines, the fact that the
No. 05-3391 5
judge had already dismissed the suit once for failure
to prosecute, and Fischer’s lame excuses at the hearing were
circumstances in light of which, given her dilatoriness, we
cannot say that the district judge abused his discretion in
dismissing the suit with prejudice the second time, even
though he had given no warning. See Williams v. Chicago
Board of Education, supra, 155 F.3d at 858-59. The first
point—Cingular’s request, communicated in a motion
served on Fischer, that the judge dismiss the case if she
continued to ignore discovery deadlines— deserves particu-
lar emphasis. The purpose of requiring a warning is not to
entrap district judges but to make sure that the plaintiff is
warned. The warning need not (despite a contrary sugges-
tion in Kruger v. Apfel, supra, 214 F.3d at 788) always come
from the judge. This is a general principle of law, not
anything special to dismissals for want of prosecution. See,
e.g., United States v. Williams, 298 F.3d 688, 692-93 (7th Cir.
2002); Damerville v. United States, 197 F.3d 287, 289-90 (7th
Cir. 1999).
AFFIRMED.
6 No. 05-3391
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-1-06