Adrianna Brown v. Columbia Sussex C

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-3849

A DRIANNA B ROWN, et al.,

Plaintiffs-Appellants,

v.

C OLUMBIA S USSEX C ORPORATION, et al.

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond Division.

No. 2:08-cv-00107—Philip P. Simon, Chief Judge.

A RGUED S EPTEMBER 22, 2011 —D ECIDED D ECEMBER 15, 2011

Before P OSNER, F LAUM, and SYKES, Circuit Judges.

F LAUM , Circuit Judge. The underlying litigation in

this case concerns a host of plaintiffs-appellants’ civil

rights and breach of contract claims against defendants-

appellees—the owners of Baton Rouge Marriott and an

individual employee of the Marriott (collectively,

“Marriott”) . Throughout the pre-trial discovery of this

litigation, 224 of the 268 plaintiffs continually missed both

2 No. 10-3849

formal and informal deadlines.1 As a result, all but 44 of

the plaintiffs had their claims dismissed by the district

court as a discovery sanction pursuant to Fed.R.Civ.P. Rule

37(b). Appellants constitute 53 of the 224 unattentive plain-

tiffs.2 For the reasons set forth below, we affirm the district

court’s dismissal of appellants’ claims.

I. Background

For 20 years, appellant James Piggee and his organization

Giving Education Meaningful Substance (“G.E.M.S.”) has

been taking groups of African American high school

students on tours of historically black universities to

make them more aware of their academic opportunities.

In April 2008, Piggee planned a trip to Louisiana and Texas

for a group of somewhere between 149 and 268 students.

In preparation for that trip, Piggee reserved 41 rooms at

the Marriott in Baton Rouge. A day or two later, Marriott

canceled the reservation. Appellants allege that Marriott’s

decision to cancel was racially motivated. As a result of

the cancellation, appellants did not have a place to stay

in Baton Rouge and had to drive through the night to

their next destination in Texas.

1

Despite the numerosity of the plaintiffs, no claims were

brought as a class action.

2

Originally, all 224 of the dismissed plaintiffs were part of the

appeal currently before this court. While the appeal was

pending, however, appellants’ counsel filed a motion to volun-

tarily dismiss 171 of the appellants after discovering that

they should not have been a part of the case to begin with.

No. 10-3849 3

Based on these allegations, Piggee filed suit in the

Northern District of Indiana for himself, the students, and

the chaperones that attended the April 2008 trip. In

December 2009, Marriott served extensive discovery

requests on all 268 plaintiffs, including requests for

the production of documents, responses to interrogatories,

and responses to Fed.R.Civ.P. Rule 36 requests for admis-

sion. In January 2010, appellants asked for their

first extension. They initially asked Marriott for a 45-day

extension, but before receiving a response, they requested

a 60-day extension from the court, which was granted

without objection. The new deadline of March 29, 2010

came and went without any production or response

from appellants. On April 6th, Marriott wrote a letter

to appellants’ counsel asking when to expect a response

to the discovery requests, but received no answer. Appellee

sent another letter requesting production on April 13th,

and in response to this second letter, appellants emailed

Marriott requesting an extension until May 31, 2010.

The third deadline once again passed with no response

from appellant.

On June 16, 2010, five months after the original discovery

deadline, Marriott filed a motion to compel a response to

discovery. The district court granted the motion with

respect to the interrogatories and document requests, but

noted that requests for admission cannot be compelled

as these requests are deemed admitted after 30 days of

no response. The court ordered that appellants respond

to discovery requests by July 16, 2010. On the date of

the fourth deadline, appellants filed a Motion for Extension

of Time, seeking an extension to July 23, 2010. The

4 No. 10-3849

court did not grant the motion because of technical prob-

lems with appellants’ motion. Thus, for a fourth time,

appellants did not meet their deadline. As a result,

Marriott filed a motion for sanctions and contempt, seek-

ing dismissal and payment for Marriott’s expenses,

including attorney’s fees.3 The court declined to dismiss,

but granted Marriott’s request for expenses as a

sanction against appellants. The court also granted appel-

lants’ second Motion for Extension of Time, giving

them until August 17th to comply with the court’s or-

der. This extension was granted in part because of plaintiff-

counsel’s representations that he was a sole practitioner,

that he only had one administrative assistant, that he

had been working round-the-clock to comply with the

court’s orders, and that he had interviewed a law firm

to help with the discovery requests. In granting appel-

lants’ motion, the district court made clear that this was the

“final extension” that would be granted, and that further

requests would be “viewed with disfavor.” In addition, a

magistrate judge’s Findings, Report, and Recommendation

regarding Marriott’s motion for sanctions listed the court’s

3

Shortly after filing their motion for sanctions, Marriott also

filed a motion for summary judgment based on the requests for

admission, which were deemed admitted due to appellants’ lack

of a response. When the district court dismissed the claims of the

appellants before this court, it also granted a motion to with-

draw default admissions by the plaintiffs whose claims were not

dismissed by the court (and are therefore not before this court

on appeal). Due to the withdrawal of the default admissions, the

summary judgment motion was rendered moot.

No. 10-3849 5

sanctioning options if appellant failed to respond to

discovery. These options included the possibility of

dismissal.

For the fifth and final time, appellants failed to meet their

discovery deadline. On August 20, 2010, Marriott filed

another motion for contempt and sanctions, naming over

200 plaintiffs that had not yet responded to the appellees’

discovery requests. In plaintiff-counsel’s September 27th

response to this motion, he indicated that 60 plaintiffs

had responded to the discovery requests and that he

had not received a response from the others. He also

sought class certification due to the unmanageability of

the discovery requests. During oral arguments for that

motion, plaintiff-counsel acknowledged that he had only

communicated with roughly 75 to 100 of the plaintiffs,

which led the district court to concluded that the majority

of the plaintiffs may not have even been aware that the

suit had been filed on their behalf.

On November 10, 2010, in its ruling on Marriott’s motion

for sanctions, the district court concluded that the

Fed.R.Civ.P. 37(b) sanction of dismissal was necessary in

the face of appellants’ willful delay and avoidance

of Marriott’s requests for discovery. The district court

based this decision on appellants’ pattern of delay and

non-compliance, which included the following actions

or omissions: 1) appellants’ disregard of two of the court’s

orders to compel discovery; 2) appellant’s lack of response

when faced with the less severe sanction of payment

of defendants’ expenses; 3) appellants’ lack of a

showing that additional sanctions would be effective

6 No. 10-3849

in forcing them to comply with the court’s orders;

4) plaintiff-counsel’s lack of communication with the

majority of the plaintiffs; and 5) plaintiff-counsel’s lack

of secured co-counsel, which, the court noted, would be

a difficult task given the posture of the case at the time

of dismissal.

On December 10, 2010, appellants filed their notice of

appeal from the district court’s decision to dismiss their

claims. Our preliminary review of appellants’ appeal

indicated that the district court’s order may not have

been a final judgment under 28 U.S.C. § 1291 4 (“§ 1291”),

and on December 21, 2010, we ordered appellants to file

a Jurisdictional Memorandum, due on January 4, 2011.

One day before the deadline, appellants returned to

the district court and filed a motion requesting an entry

of final judgment pursuant to Fed.R.Civ.P. Rule 54(b)

and 58(d).5 The next day —the due date for the Jurisdic-

tional Memorandum —appellants filed a motion entitled

“Routine Motion For An Extension of Time to File Jurisdic-

4

Section 1291 states, “The courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the district

courts of the United States.”

5

Rule 54(b) states that if an action contains more than one claim

for relief—through either multiple claims from one party,

multiple parties to a claim, or both —"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.” Fed. R. Civ. P. 54(b). Rule 58(d) allows a

party to request that a Rule 54(b) judgment be set out in a

separate document. Fed. R. Civ. P. 58(d).

No. 10-3849 7

tional Memorandum,” which was granted. On January 7,

2011, the district court granted appellants’ Rule 54(b)

motion, finding that appellants’ claims are separate from

the claims of the remaining plaintiffs, the decision dismiss-

ing appellants’ claims is final, and there is no just reason

for delay. A final judgment was therefore entered.

Appellants subsequently filed their Jurisdictional

Memorandum with this court, which advised the court

of the case’s procedural history and concluded that the

district court’s Rule 54(b) motion rendered the jurisdic-

tional question moot. The next day, this court issued

an order stating, “On consideration of the ‘JURISDIC-

TIONAL STATEMENT’ filed by plaintiffs-appellants

on January 11, 2011, IT IS ORDERED that briefing will

proceed.”

II. Discussion

A. Jurisdiction

Before we turn to the relatively straight forward

matter of the propriety of appellants’ dismissal, we must

address Marriott’s assertion that we lack jurisdiction

to decide this appeal in the first place. Whether we

have jurisdiction depends on the interaction between

three statutory rules: Congress’ conferral of jurisdiction

on this court under § 1291, Rule 54(b) of the Federal Rules

of Civil Procedure (“Rule 54(b)”), and Rule 4(a) of the

Federal Rules of Appellate Procedure (“Rule 4(a)”).

To start, § 1291 generally limits our jurisdiction to

the review of only “final decisions” of the federal district

8 No. 10-3849

courts. See Lac Courte Oreilles Band of Lake Superior

Chippewa Indians v. Wisconsin, 760 F.2d 177, 180 (7th

cir. 1985); 28 U.S.C. § 1291. Decisions are final when

they “end[] the litigation and leave[] nothing to be decided

in the district court.” United States v. Ettrick Wood

Prods., Inc. 916 F.2d 1211, 1216 (7th Cir. 1990). Generally,

if an action involves either multiple parties or one

party with multiple claims, the dismissal of some but

not all of the parties or claims is not immediately

appealable; the parties or claims that still exist prevent

the order from being “final.” Id. at 1216-17; Fed.R.Civ.P.

Rule 54(b). Rule 54(b), however, empowers a district

court to “direct entry of a final judgment as to one or

more, but fewer than all, claims or parties,” but only if

the court “expressly determines that there is no just

reason for delay,” Fed.R.Civ.P. 54(b), a process commonly

referred to as “certification.” See, e.g., Parish v. City of

Elkhart, 614 F.3d 677, 679 n. 2 (7th Cir. 2010). The

Supreme Court has established that in addition to

the absence of any reason for delay, a certifiable claim must

be separable from the remaining claims in the litigation

and the decision entered as to those claims must meet the

definition of finality under § 1291—meaning there is

nothing left to be decided by the district court as to the

certified claims —in order for a Rule 54(b) ruling to be

proper. See ODC Communications Corp. v. Wenruth Invest-

ments, 826 F.2d 509, 511-12 (7th Cir. 1987) (citing Curtiss-

Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8 (1980)).

Marriott argues that § 1291 and Rule 54(b), in concert

with the requirements of Fed.R.App.P. Rule 4(a)(1)

(“Rule 4(a)(1)”), clearly prevent this court from exercis-

No. 10-3849 9

ing jurisdiction over this appeal. Rule 4(a)(1) requires

that an appellant file a notice of appeal within 30 days

of the judgment from which that party is appealing.

Marriott correctly asserts that when the district court

dismissed appellants’ claims on November 10, 2009,

the entire case was not terminated, since there were

remaining plaintiffs litigating their claims. Those plain-

tiffs continue to litigate to this day. Thus, the district

court’s November 10th decision, which was not accompa-

nied by a Rule 54(b) judgment, was not a final judg-

ment under § 1291 and was not immediately appealable.

See Ettrick Wood Prods., 916 F.2d at 1217 (“Absent proper

entry of judgment under Rule 54(b), an order

that determines one claim in a multi-claim case, or

disposes of all claims against one or more parties in

a multi-party case, is not final and appealable.”). Appel-

lants’ December 10th notice of appeal was therefore

premature, since it was filed as a challenge to the Novem-

ber 10th nonfinal order. The district court eventually

granted appellants’ motion requesting a Rule 54(b) judg-

ment on January 7, 2011, making the appellants’ dis-

missal both final and appealable under § 1291, but appel-

lants did not file a new notice of appeal from the January

7th order. Instead, they rested on their December 10th

notice of appeal from the November 10th nonfinal or-

der. The question, then, is whether appellants’ original

notice of appeal satisfies the federal appellate

notice requirements under Rule 4(a)(1) despite the fact

that appellants technically appealed from a nonfinal

decision rather than the Rule 54(b) final judgment entered

on January 7th.

10 No. 10-3849

Appellants argue that this court’s jurisdiction is

saved under Fed.R.App.P. Rule 4(a)(2). Rule 4(a)(2) pro-

vides, “A notice of appeal filed after the court an-

nounces a decision or order—but before the entry of

the judgment or order —is treated as filed on the date of

and after the entry.” Appellant argues that, for the pur-

poses of Rule 4(a)(2), the district court announced

its decision to dismiss appellants’ claims on November

10, 2010 —the date the court ruled on Marriott’s second

motion for sanctions —but that its judgment was not

entered until January 7, 2011 —the date the court ruled on

appellants’ Rule 54(b) motion for entry of final judg-

ment. The appellants’ notice of appeal should therefore

be considered as having been constructively filed

on January 7, 2011 pursuant to Rule 4(a)(2), or so they

argue. Marriott argues that Rule 4(a)(2) does not resurrect

notices of appeal that were made prematurely in the

context of a belated Rule 54(b) motion. This is made clear,

they argue, by the Supreme Court’s decision in FirsTier

Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269

(1991).

In FirsTier, the plaintiff brought claims against

an insurance company for refusing to pay claims submitted

by the plaintiff. Id. at 270. The defendant filed a motion

for summary judgment, and after orally granting

the defendant’s motion, the court asked the defendant

to submit proposed findings of fact and conclusions of

law, to which the plaintiff had a right to object. Id. at

271. Before the court accepted the defendant’s proposed

findings and conclusions —and thus before a final judgment

was technically entered —the plaintiff filed its notice

No. 10-3849 11

of appeal. Id. at 272. Relying on Rule 4(a)(2), the Supreme

Court held that the defendant’s notice of appeal

was timely, despite the fact that it was technically prema-

ture. Id. at 277. The Court interpreted Rule 4(a)(2)

as “permit[ing] a notice of appeal from a nonfinal deci-

sion to operate as a notice of appeal from the final judg-

ment only when a district court announces a decision

that would be appealable if immediately followed by

the entry of judgment.” 498 U.S. at 276 (emphasis in

original). The reasoning underlying this interpretation

is that “Rule 4(a)(2) was intended to protect the unskilled

litigant who files a notice of appeal from a decision that

he reasonably but mistakenly believes to be a final judg-

ment.” Id. Rule 4(a)(2) does not, however, permit “a

notice of appeal from a clearly interlocutory decision —such

as a discovery ruling or a sanction order under Rule 11

of the Federal Rules of Civil Procedure —to serve as a

notice of appeal from the final judgment.” Id. In

FirsTier, Rule 4(a)(2) saved the plaintiff’s premature appeal,

since the bench ruling announced a decision “purporting

to dispose of all of FirsTier’s claims,” and thus the

notice of appeal was deemed filed on the date that the

final judgment was actually entered. Id. at 277.

Marriott argues that in this case, unlike in FirsTier,

the entry of judgment was not all that stood in the way

of appellants’ dismissal becoming appealable. Rather,

the district court would have had to conduct a Rule

54(b) analysis or dispose of the remaining parties in

order for the dismissal to become final and appealable.

Thus, under Marriott’s suggested framework, the

order dismissing appellants’ claims was a clearly interlocu-

12 No. 10-3849

tory order, and under FirsTier, an appeal from an interlocu-

tory order cannot be saved by Rule 4(a)(2). Given that

it has been more than 30 days since the district court’s

January 7, 2011 order granting appellants’ motion to

enter final judgment, Marriott claims that any notice

of appeal now filed by appellant would be time-barred.

In light of FirsTier, we agree with those Circuits that

have held that, generally speaking,6 premature notices

of appeal in civil cases can only ripen when under the

auspices of Rule 4(a)(2), as defined by the Supreme

Court in FirsTier. See, e.g., Outlaw v. Airtech Air

Conditioning and Heating, Inc., 412 F.3d 156, 160 (D.C.

Cir. 2005); United States v. Cooper, 135 F.3d 960, 963 (5th

Cir. 1998) (interpreting Fed.R.App.P. Rule 4(b), which

is the equivalent of Rule 4(a)(2) for criminal cases, and

is interpreted as such); Serine v. Peterson, 989 F.2d 371, 372-

73 (9th Cir. 1993). But see Lazy Oil Co. v. Witco Corp.,

166 F.3d 581, 587 (3rd Cir. 1999) (“[FirsTier] did not

hold that the rule 4(a)(2) situation —announcement of a

final decision followed by notice of appeal and then

entry of the judgment —is the only situation in which a

premature notice of appeal will ripen at a later date.”).7

6

The exception to this rule can be found in Fed.R.App.P.

4(a)(4)(B), which tolls an appeal during the pendency of certain

post-judgment motions if a litigant’s notice of appeal is filed

after a final judgment has been rendered but before at least one

qualifying post-judgment motion has been granted or denied.

7

While we recognize that our interpretation is in conflict with

the Third Circuit’s precedent, see Lazy Oil, 166 F.3d at 587, we

(continued...)

No. 10-3849 13

Thus, we must determine whether Rule 4(a)(2) and FirsTier

permit a premature notice of appeal to ripen upon a

belated Rule 54(b) certification.

In the context of a case with multiple, separable

claims, the holding of FirsTier could take on two meanings.

The Supreme Court’s warning that Rule 4(a)(2) should

only apply when a decision would be appealable if imme-

diately followed by the entry of judgment, id. at 276,

could be interpreted to mean that nothing can stand

between the decision rendered and the appealability of

that decision but the ministerial task of actually entering

judgment on the docket. This is the interpretation

that Marriott advances. If we were to accept this

strict reading, a premature appeal from the dismissal

of one claim in a multi-claim suit, or one party in a multi-

party suit, could not be saved by Rule 4(a)(2), since there

is more for the court to do beyond the mere ministerial task

of entering judgment. Specifically, the court would

either have to dispose of the remaining claims or conduct

a Rule 54(b) examination, in which the court would have

to make specific findings of finality, separability, and a lack

of just cause for delay. Alternatively, FirsTier can be read

to hold that Rule 4(a)(2) will save a premature notice if,

regarding the claim being appealed, the entry of judgment

is all that is left for the court to do. Under this more lenient

reading, the dismissal of a single claim or party in a multi-

7

(...continued)

believe that the Third Circuit’s reading of FirsTier renders its

holding a virtual nullity, and thus we decline to follow it.

14 No. 10-3849

claim case would be an immediately appealable decision

had the entry of judgment directly followed the dismissal.

The situation would require a Rule 54(b) motion to enter

that judgment, but the entry of judgment would nonethe-

less be all that was required for the decision to become

appealable.

We have not directly confronted the question of whether

a belated Rule 54(b) judgment can save a premature

notice of appeal after FirsTier, but we have had the chance

to interpret FirsTier, and it is clear that we have decided

that the more lenient interpretation is the correct one.

In Garwood Packaging, Inc. v. Allen & Co., Inc, we found

that Rule 4(a)(2) gave us jurisdiction over an appeal

from a granted summary judgment despite the fact

that one of the defendants still had claims pending against

it, given that all of the claims were finalized

before we decided the appeal. 378 F.3d 698, 700-01 (7th

Cir. 2004). Citing FirsTier, we reasoned that “once [a]

decision is announced, a premature notice of appeal

lingers until the final decision is entered.” Id. at 701

(citing FirsTier, 498 U.S. 269). Thus, if finality is subse-

quently achieved through the disposal of all other

claims, Rule 4(a)(2) can save a premature appeal from a

judgment that did not dispose of all the parties in

a suit. See Garwood Packaging, Inc., 378 F.3d at 700-01.

In the case before us, we see no reason why we should

not reach the same conclusion where finality is reached

through a Rule 54(b) certification rather than the disposal

of all claims. Accord In re Bryson, 406 F.3d 284, 288

(4th Cir. 2005); Swope v. Columbian Chemicals Co., 281

F.3d 185, 191-92 (5th Cir. 2002); Clausen v. Sea-3, Inc.,

No. 10-3849 15

21 F.3d 1181, 1187 (1st Cir. 1994). In either case, the

district court’s decision represented the end of the litiga-

tion for a certain claim or certain claims, and all that

was needed for those claims to be appealable was

for judgment to be formally entered, thus providing true

finality. We therefore hold that, in the context of a multi-

party or multi-claim suit, a premature notice of

appeal from the dismissal of a party or claim will ripen

upon the entry of a belated Rule 54(b) judgment under

Rule 4(a)(2) and FirsTier. 498 U.S. at 275.

We conclude that this holding comports with the teach-

ing of FirsTier. It is reasonable, we think, for an unsophisti-

cated litigant to believe that he could appeal a court’s

decision to throw out his only claim despite the exis-

tence of other claims still pending. As was the

case in FirsTier, the district court in this case “purport[ed]

to dispose of all of [appellants’] claims.” 498 U.S. at

277. Also similar to FirsTier is the lack of any preju-

dice to Marriott. At no point since appellants’ original

notice of appeal was it unclear that they were appeal-

ing the district court’s dismissal of their claims. Moreover,

the Rule 54(b) judgment entered by the district court

in no way changed the nature of appellants’ dismissal;

it merely made that dismissal appealable. Not only

was Marriott satisfactorily able to brief the issues

of this case, but as is clear below, their defense of the dis-

trict court’s dismissal was successful.

This is not to say that all decisions made by a court can

be prematurely appealed and subsequently revived by

Rule 4(a)(2). As FirsTier cautions, an appeal from a

16 No. 10-3849

clearly interlocutory decision will not be saved by

Rule 4(a)(2). FirsTier, 498 U.S. at 276. But a decision that

functionally ends the litigation for a party can hardly

be considered “clearly interlocutory.” In this context,

the FirsTier line ought to be drawn at whether a

decision ends the litigation for a particular party or

for a separable claim, and thus is the potential subject of

a Rule 54(b) judgment, whether or not that Rule

54(b) judgment is ever actually entered. Accord Outlaw,

412 F.3d at 161-62 (basing its jurisdiction on the fact

that the district court could have entered judgment

on the appealed from claims using Rule 54(b)).

Before moving to the merits, it is worth noting that

the district court could have entered its Rule 54(b) judg-

ment nunc pro tunc, making the November 10, 2010

dismissal constructively appealable as of November

10th, 2010, thus avoiding the need for Rule 4(a)(2). See

Local-171, Amalgamated Meat Cutters and Butcher Workmen

of North America v. Thompson Farms Co., 642 F.2d 1065,

1073 (7th Cir. 1981). The fact that a failure by

the district court to add a Latin addendum to its

Rule 54(b) judgment could have been fatal to appel-

lants’ appeal illustrates the illogical and overly technical

results that would flow from too strict a reading of

Rule 4(a)(2).

B. Dismissal of Suits

Appellants argue that the district court abused its

discretion in dismissing appellants’ claims as a discovery

No. 10-3849 17

sanction for two reasons. First, appellants claim that

their discovery violations were not willful, were not

in bad faith, and did not involve fault, and thus dismiss-

al was too severe a sanction under our precedent.

Second, appellants argue that they were not adequately

warned that their claims would be dismissed, which,

they assert, is also required by our precedent. A district

court’s entry of sanctions is reviewed for abuse of discre-

tion, while factual findings are reviewed for clear error.

In re: Thomas Consolidated Industries, 456 F.3d 719, 724

(7th Cir. 2006).

The dismissal of a case as a Fed.R.Civ.P. Rule 37 discov-

ery sanction should be upheld as long as a reasonable

jurist could have concluded that the sanction was appro-

priate. Long v. Steepro, 213 F.3d 983, 986 (7th Cir.

2000). Given the severity of the sanction, this

court has warned that it will be vigilant in its review of

Rule 37 dismissals. Maynard v. Nygren, 332 F.3d 462,

467 (7th Cir. 2003). Despite the fact that the district

court dismissed appellants’ claims as a discovery sanction

under Rule 37, both parties cite cases discussing dismiss-

als under Fed.R.Civ.P. Rule 41(b)’s failure to prosecute

provision. The standards for dismissal under Rules

41(b) and 37(b) overlap, but there are differences

between the two. Under Rule 41(b), a case should only

be dismissed when “there is a clear record of delay or

contumacious conduct, or when other less drastic san-

ctions have proven unavailing.” Maynard, 332 F.3d at

467 (quoting Williams v. Chicago Bd. of Educ., 155 F.3d

853, 857 (7th Cir. 1998)). Rule 37, on the other hand,

requires a finding of willfulness, bad faith or fault on

18 No. 10-3849

the part of the defaulting party. Id; see also Bolanowski

v. GMRI, Inc, 178 Fed.Appx. 579, 581 (7th Cir. 2006)

(“Rule 37(b)(2)’s standard is willfulness, bad faith or fault,

while Rule 41(b)’s requires a clear record of delay or

contumacious conduct.”). The difference between these

two standards has caused some confusion, but we

have made clear that the Rule 41(b) standard is actually

a stricter standard than the Rule 37(b) standard, In re

Pansier, 417 Fed.Appx. 565, 569 (7th Cir. 2011), and we

have intimated that a finding of willfulness, bad faith or

fault is only necessary if Rule 41(b)’s “clear record”

of delay is not present. See Maynard, 332 F.3d at 468

(“[E]ven without a clear record of delay, contumacious

conduct or prior failed sanctions, a court can apply

the sanction of dismissal for Rule 37 violations with

a finding of willfulness, bad faith, or fault.” (internal

quotation marks omitted)).

In the case at hand, the district court made a finding

that appellants displayed a pattern of “willful delay and

avoidance,” 8 thus meeting the Rule 37 standard of willful-

ness, bad faith, or fault. A comparison to relevant case

law clearly illustrates that this finding was not erroneous.

8

There has been some discussion as to whether a finding of

willfulness must be based on clear and convincing evidence or

merely a preponderance of the evidence. See Watkins v.

Nielsen, 405 Fed.Appx. 42, 46 (7th Cir. 2010) (citing Maynard,

332 F.3d at 468). This distinction is unimportant to this case, as

the facts would meet either standard.

No. 10-3849 19

In Aura Lamp & Lighting, Inc. v. International Trading

Corp., for instance, we did not find an abuse of discretion

when a Rule 37 dismissal9 was based on a plaintiff’s

repeated failures to meet court-ordered deadlines despite

several extensions, including “one final extension” and

a warning that dismissal was impending. 325 F.3d 903, 904-

906. While the court considered the fact that the attorney

handling the appellant’s case was a sole practitioner

and was overwhelmed by the amount of discovery,

it found that his request to find someone else to handle

the case was too late at the time of dismissal. Id. at 908.

Similarly, in Watkins v. Nielsen, this court held

that a plaintiff’s failure to meet deadlines despite several

extensions, failure to heed a warning of dismissal,

and submission of incomplete interrogatories warranted

dismissal under Rule 37(b). 405 Fed.Appx. 42, 43

(7th Cir. 2010).

Conversely, this court found that the plaintiff in Long

did not act with willfulness, bad faith, or fault when

he missed a single court-ordered deadline because of

the mistaken belief that a summary judgment motion

suspended all other proceedings. Long, 213 F.3d at 985-

87. In reaching this decision, the court explained that

the “fault” portion of the Rule 37 standard is different

than the “willfulness” and “bad faith” portions in

that fault does not require intentional or reckless behavior,

but counseled that fault “suggests unreasonable behavior”

9

The court held that a dismissal on either Rule 41(b) or Rule 37

would have been appropriate. Aura Lamp, 325 F.3d at 907.

20 No. 10-3849

and it “does not include conduct that we would classify

as a mere mistake.” Id. at 987.

The appellants’ discovery violations in this case

are undeniably more comparable to the plaintiffs in Aura

Lamp and Watkins than the plaintiff in Long. Unlike

the plaintiff in Long, appellants did not make a single

discovery error, and their repeated missteps were

not explainable by a reasonable misunderstanding. Appel-

lants missed five discovery deadlines and violated

two court orders. They completely failed to respond to

numerous interrogatories —a violation even more grave

than the incomplete interrogatories found in Watkins.

Like the attorney in Aura Lamp, appellants’ counsel did

not have the resources to handle a case of this nature,

yet he failed to either decline the case or enlist the help

of outside counsel at a reasonable point in the litigation.

Perhaps most telling was counsel’s inability to even

speak with the majority of the plaintiffs that he was

supposed to be representing. The dismissal is further

supported by the fact that the district court first attempted

to use the less severe sanction of paid expenses to

compel compliance from the appellants, but to no avail.

See Lowe v. City of East Chicago, Ind., 897 F.2d 272, 274

(7th. Cir 1990) (“The district court should consider

less severe sanctions than dismissal for a party’s noncom-

pliance with court orders or failure to prosecute his or

her claim expeditiously, unless there exists a clear record

of delay or contumacious conduct or when less

drastic sanctions have proven ineffective.” (emphasis added)

(internal quotation marks omitted)).

No. 10-3849 21

It is evident that the district court was within its discre-

tion to find that the appellants acted willfully, in bad

faith, or with fault.

Appellants also argue that the district court failed

to adequately warn them that their claims could be dis-

missed. They assert that this is a requirement for a Rule

37 dismissal, and the court therefore abused its discre-

tion. Appellants are correct that we encourage district

courts to provide an explicit warning before a Rule 37

or Rule 41 dismissal is ordered. See, e.g., Ball v. City of

Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (“[T]here must be

an explicit warning before the case is dismissed [on Rule

41(b) grounds].”). More recent case law, however, has

clarified that an explicit warning is not absolutely neces-

sary; rather, the language in Ball should be taken as

a guideline for district court judges and should be treated

as a safe harbor rather than a requirement. Fischer

v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006).

Further, a warning of dismissal need not come from

the judge. Id. at 666. In Fischer, for example, the fact that

the defendant requested dismissal if the plaintiff con-

tinued to violate discovery orders was deemed to contrib-

ute to the plaintiff’s warning that dismissal was a possibil-

ity. Id.

In a case involving as many repeated discovery violations

as this, a warning may not even be necessary, but regard-

less, the district court and Marriott sufficiently warned

appellants of the possibility of dismissal. As in Fischer,

appellees filed more than one motion asking the court

to dismiss appellants’ claims due to their inability to

22 No. 10-3849

meet established discovery deadlines. The court also

warned appellants that the extension to August 2010

was their “final extension” and that another request for an

extension would not be looked upon with favor. Finally,

the magistrate judge’s Findings, Report, and Recommenda-

tion included dismissal as a possible sanction, providing

further warning. Given the nature and volume of appel-

lants’ discovery violations, along with the warnings of

dismissal that were issued, the district court did not

abuse its discretion in granting a Rule 37 motion to dismiss

without having explicitly warned appellants of

that possibility.

III. Conclusion

For the foregoing reasons, we A FFIRM the judgment of

the lower court.

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