Petition for Writ of Certiorari — Woods v. Union Pacific Railroad

— ee ee

Supreme Court, U.S.

riLt&s

92- 100 SUL 1 3999

No. } OFFICE OF THE CiueK

a —

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

JERRY D. WOODS

Petitioner,

vs.

UNION PACIFIC RAILROAD COMPANY,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

THE PETITION FOR WRIT OF CERTIORARI

DENNIS J.C. OWENS, ESQUIRE

Counsel of Record

1900 City Center Square

1100 Main Street

Kansas City, Missouri 64105

Telephone: (816) 472-0800

Facsimile: (816) 421-1183

Counsel for the Petitioner

June 30, 1992

Wy

wi

QUESTION PRESENTED

Whether the district court abused its

discretion by sua sponte dismissing the

petitioner’s case with prejudice, pursuant

to Rule 41(b), Federal Rules of Civil

Procedure, without first considering less

harsh alternative sanctions when the

petitioner did not demonstrate contumacious

conduct when both parties had asked the

trial court to dismiss without prejudice.

(1)

LIST OF PARTIES

The parties to the proceedings below

were Mr. Jerry Woods, the petitioner, and

Union Pacific Railroad Company, the

respondent.

(ii)

TABLE OF CONTENTS

Page

Question Presented ................. (1)

Table of Contents ..........ccccece. [2ak)

Table of Authorities ............... (iv)

Opinions Below ..................... 1

POO EVOL VOE onc cc ckccnrccncccecncce 2

Jurisdictional Grounds ............. 3

Statement of the Case .............. 3

Reasons For Granting the Writ....... 6

WEMOL o i ici neces escccenccccce 17

ED He ae 8.6 cwe & ka6éo a4 0h ea van A- 1

-Trial Court’s Order Dismissing

Case With Prejudice,

WOO OS, FORE occ cc cccccncccnce A= 2

-Opinion of United States Court of

Appeals for the Eighth Circuit,

PO Ay ROME nic nce cbkcn cece A- 4

-Order Denying Rehearing, April 13,

SE SES CRW EY OA OTR SS 6 bo 6 a deo ee cc A-11

(iii)

TABLE OF AUTHORITIES

Cases Page

Boudwin v. Graystone Ins. Co., iLtd.,

756 F.2d 399 (5th Cir. 1985) .. 14, 15

Brown v. Frey,

806 F.2d 801 (8th Cir. 1986) ... S, 16

Carter v. City of Memphis, Tennessee,

636 F.2d 159 (6th Cir. 1980) ..... 14

Clayton v. White Hall School Dist.,

778 F.2a 457 (8th Cir. MOG) «aves 16

Cohen v. Carnival Cruise Lines, Inc.,

782 F.2d 923

(AER CAP. BOBBY cckndccccs 13, 24, 15

Enlace Mercantile Internacional v.

Senior Industries,

848 F.2d 315 (lst Cir. Rw? Geese 14

Guyer v. Beard,

907 F.2d 1424 (3rd Cir. 1990) .... 14

Hamilton v. Neptune Orient

Lines, Ltd,,

811 F.2d 498 (9th Cir. 3967) .. 14, 15

Jackson v. Schoemehl,

788 F.2d 1296 (8th Cir. BOBO) ceca 26

McCargo v. Hedrick,

545 F.2d 393 (4th Cir. 1976) ... 9, 14

(iv)

TABLE OF AUTHORITIES--Continued

Cases Page

Moore v. St. Louis Music

Supply Co., Inc.,

939 F.2d 1191 (8th Cir. A976) sees 26

Pardee v. Stock,

712 F.2d 1290 (8th Cir. hVGS? cuaal_ ae

Schilling v. Walworth County Park &

Planning Commission,

805 F.2d 272

(PER GaP. 2OO6S ot cue scx sa, 23. ts

(v)

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1992

No.

JERRY D. WOODS,

Petitioner,

vs.

UNION PACIFIC RAILROAD COMPANY,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

OPINIONS BELOW

This case was dismissed with prejudice

by the United States District Court for the

Western District of Missouri, Western

Division (D.C. Civil Number 89-1144).

The district court’s order’ was

affirmed by the United States Court of

Appeals for the Eighth Circuit (Number 91-

1556).

2

RULE INVOLVED

Rule 41(b), Federal Rules of Civil

Procedure.

Involuntary Dismissal: Effect

Thereof. For failure of the plaintiff to

prosecute or to comply with these rules or

any order of court, a defendant may move

for dismissal of an action or of any claim

against the defendant.... Unless the court

in its order for dismissal otherwise

specifies, a dismissal under this

Subdivision and any dismissal not provided

for in this rule, other than a dismissal

for lack of jurisdiction, for improper

venue, or for failure to join a party under

Rule 19, operates as an adjudication upon

the merits.

3

JURISDICTIONAL GROUNDS

Jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1), and is

sought after the denial of a petition for

rehearing. The petition for rehearing was

denied April 3, 1992 by the United States

Court of Appeals for the Eighth Circuit.

STATEMENT OF THE CASE

On December 8, i989, the petitioner,

Jerry Woods, filed a complaint in the

United States District Court for the

Western District of Missouri, under Title

VII of the Civil Rights Act of 1964. mr.

Woods alleged that he had been wrongfully

discharged by his employer on the basis of

racial discrimination. Mr. Woods was

proceeding pro se.

On May 23, 1990 Mr. Woods answered

Union Pacific Railroad Company’s initial

interrogatories. On September 11, 1990 and

4

on October 23, 1990, Mr. Woods moved for an

extension of time in which to complete

discovery. Both of these motions were

denied. On August 27, 1990 and on cee

17, 1990, Mr. Woods was deposed.

On November 9, 1990, two attorneys,

Charles A. Dixon and Hartzell J. Whyte,

filed their motion to appear pro haec vice

on behalf of Mr. Woods. Local counsel,

James Green, entered his appearance on

November 13, 1990. Mr. Woods filed a third

motion for an extension of time in which to

complete discovery. This motion was

granted on December 12, 1990. The district

court extended discovery to January 15,

1991.

On December 17, 1990, Mr. Woods

propounded the Plaintiff’s First Set of

Interrogatories to Defendant. On December

27, 1990, the depositions of Robert Naro

and Edward Caylor were taken by Mr. Woods’s

5

attorneys. A second set of interrogatories

and a request for production of documents

was mailed to the defendant’s attorney on

January 15, 1991. The defendants filed a

motion to quash which was granted.

On January 28, 1991, Mr. Woods’s

attorneys filed a motion to withdraw. (The

disposition of that motion is not reflected

on the docket. )

The case was set for trial on February

13, 1991. Mr. Woods was represented by new

counsel, Ronald kK. Barker. Mr. Barker

appeared and moved that the case be

dismissed without prejudice. Counsel for

Union Pacific Railroad Company, Jay

Nadiman, at first stated that he was

opposed to dismissal. Mr. Nadlman later

asked the court to dismiss without

prejudice. Union Pacific never asked that

the case be dismissed with prejudice.

6

On the same day, the trial court

entered its order dismissing the case with

prejudice. Despite the fact that all

needed depositions had been taken, the

trial court’s order stated that virtually

no discovery had been completed and that

Mr. Woods was not prepared for trial. The

United States Court of Appeals for the

Eighth Circuit affirmed the dismissal with

prejudice, finding no abuse of the trial

court’s discretion. Mr. Woods’s Motion for

Rehearing was denied by the Court of

Appeals.

REASONS FOR GRANTING THE WRIT

Mr. Woods’s petition for certiorari

should be granted, the judgment vacated,

and his case remanded. The district

court’s order of dismissal with prejudice

is a complete departure from the legal

Standards which must be met before a trial

court can exercise its discretion under

7

Rule 41(b), Federal Rules’ of Civil

Procedure. The trial judge granted a

dismissal with prejudice when neither party

ever sought such an adjudication upon the

merits. Only the plaintiff sought a

dismissal, and he, of course, wanted one

without prejudice. This is the first case

reported in the Federal Supplement and the

Federal Reporter, First and Second Series,

in which such a dismissal was made under

these circumstances.

The sole issue in this case is whether

the district court abused its discretion

when it dismissed Mr. Woods’s case with

prejudice. Mr. Woods concedes that a

district court has the power to order sua

sponte a case dismissed with prejudice.

Mr. Woods does not concede that this power

may be exercised with unfettered

discretion. The district court abused its

discretion when it failed to adhere to the

8

applicable legal standard and ignored the

requests of all parties to the action.

Before a litigant can be subjected to

the drastic sanction of dismissal with

prejudice, he must demonstrate a course of

intentional delay or contumacious conduct.

Brown v. Frey, 806 F.2d 801, 804 (8th Cir.

1986). Such conduct, if it exists, is

balanced against the court’s need to manage

its docket. A district court should

consider four’ factors’ in determining

| whether dismissal is proper under Rule

| 41(b). These factors are:

(1) the degree of personal responsibility

on the part of the plaintiff,

(2) the amount of prejudice to the

defendant caused by the delay,

(3) any history of deliberately

proceeding in a dilatory fashion, and

ae Oe

9

(4) whether the district court considered

Sanctions less drastic than dismissal.

McCargo v. Hedrick, 545 F. 2a 393, 396

(4th Cir. 1976).

An examination of these factors in

this case clearly demonstrates that the

district court abused its discretion in

dismissing Mr. Woods’s case with prejudice.

First, there is no indication that Mr.

Woods’s attorneys were responsible for any

delay in this case. Mr. Woods must bear

the responsibility for any alleged delay.

AS will be discussed later, however, the

record does not support a finding of

intentional delay or contumacious conduct

by Mr. Woods.

Second, the Union Pacific Railroad

Company was not prejudiced by any delay in

this case. At the scheduled trial time,

counsel for Union Pacific opposed Mr.

10

Woods’s motion for’ dismissal without

prejudice. At no time, however, did Union

Pacific seek dismissal with prejudice.

Counsel did suggest that if the court chose

to dismiss, then Mr. Woods Should be

responsible for Union Pacific’s costs and

expenses. In essence, Union Pacific

suggested that lesser sanctions be

employed. Counsel for Union Pacific

estimated that he had spent 100 hours and

$2,000 in costs. Counsel declared that

"[ijt has not been a very time consuming

case."

Union Pacific Clearly believed that at :

would not be prejudiced by a dismissal

without prejudice.

Third, the record does not Support a

finding of intentional] delay or

contumacious conduct. The district court’s

Order stated that "([vJjirtually no discovery

has been done in this case." This

11

conclusion is wholly unsupported by the

record. Mr. Woods, while proceeding pro

se, answered the respondent’s

interrogatories and was deposed. He

actively and successfully sought

representation. With the assistance of

counsel, Mr. Woods propounded

interrogatories and conducted two

depositions.

The discovery conducted in this case

was very Similar to the events in Schilling

V. Walworth County Park & Planning

Commission, 805 F.2d 272 (7th Cir. 1986).

In Schilling, the plaintiff filed a pro se

complaint on July 29, 1983. Id. at 273.

The court ordered that discovery should be

completed by June 1, 1984. Discovery was

not completed by that date. The defendant

complained of the plaintiff’s refusal to be

deposed. Id.

12

The plaintiff did answer inter-

rogatories and sought representation,

although unsuccessfully. Id. at 274. After

the plaintiff failed to participate in a

telephone status conference, the district

court sua sponte dismissed with prejudice.

Id.

The United States Court of Appeals for

the Seventh Circuit reversed, because the

district court’s dismissal was an abuse of

discretion. Id. at 276. The Court

considered the facts that the plaintiff did

answer interrogatories and did attempt to

find counsel to be indicative of the

plaintiff’s intent to prosecute. Id. at

275-76. Also, the case was only sixteen

months old. Id. "[Djismissal predicated on

the limited record of delay present here,

without prior warning or explanation of

inadequacy of lesser Sanctions, is an abuse

of discretion." Id.

13

In this case, Mr. Woods retained

counsel and conducted discovery. Mr. Woods

made numerous good faith attempts to

prosecute his case. His conduct cannot be

characterized as intentionally dilatory or

contumacious. See Cohen v. Carnival Cruise

Lines, Inc., 782 F.2a 923, 925 (llth Cir.

1986)(no clear record of delay where the

plaintiff attempted to retain counsel and

did comply with some discovery requests).

Also, Mr. Woods’s case was only

fifteen months old when the district court

dismissed with prejudice. "Especially when

a case is still young, a district court

must consider ... less drastic alternative

Sanctions before dismissing." Schilling,

805 F.2d at 277 (quoting Raiford v. Pounds,

640 F.2d 944, 945 (9th Cir. 1981)).

Consideration of less drastic alternative

Sanctions is the fourth factor to be

examined in determining whether dismissal

14

is proper. The circuits are in agreement

that district courts should consider

alternative sanctions before dismissing

with prejudice. Enlace Mercantile

Internacional v. Senior Industries, 848

F.2d 315, 318 (ist Cir. 1988); Guyer v.

Beard, 907 F.2d 1424, 1429 (3rd Cir. 1990);

McCargo v. Hedrick, 545 F. 2a 393, 396 (4th

Cir. 1976); Boudwin v. Graystone Ins. Co.,

Ltd., 756 F. 2d 399, 401 (5th Cir. 1985);

Carter v. City of Memphis, Tennessee, 636

F.2d 159, 161 (6th Cir. 1980); Schilling Vv.

Walworth County Park & Planning Commission;

805 F.2d 272, 275 (7th Cir. 1986); Pardee

Vv. Stock, 712 F.2a 1290,1292 (8th Cir.

1983); Hamilton v. Neptune Orient Lines,

Ltd., 811 F.2¢ 498, 500 (9th Cir. 1987);

f Cohen v. Carniva] Cruise Lines, 782 F.2q

923, 925 (llth Cir. 1986).

a ae

iS

In Cohen, the district court’s failure

to consider less drastic sanctions was an

independent ground for reversing the order

of dismissal. Cohen, 782 F.2d at 925.

Consideration of alternatives is mandatory,

not just recommended. Id. Also’ see

Hamilton, 811 F.2d at 500 ("meaningful

alternatives must be explored"); Boudwin,

756 F.2d at 401 ("the court must consider

lesser sanctions"). When a district

court’s order gives no indication of

consideration of alternative Sanctions, a

dismissal with prejudice cannot be

sustained. Cohen, 782 F.2d at 925;

Hamilton, 811 F.2d at 500.

In this case, the district court did

not consider less drastic sanctions before

dismissing Mr. Woods case with prejudice.

The district court’s order contains no

discussion of possible alternatives. The

order does not even suggest that

OE ened

16

alternatives were considered but found

lacking. The court could easily have

followed Union Pacific’s counsel’s

Suggestion of assessing costs and expenses

against Mr. Woods’ and then dismissed

without prejudice.

The United States courts generally

disfavor dismissal of cases with prejudice.

See Brown v. Frey, 806 F.2d 801 (8th Cir.

1986); Clayton v. White Hall] School Dist.,

778 F.2d 457 (8th Cir. 1985); Jackson v.

Schoemehl, 788 F.2d 1296 (8th Cir. 1986);

Moore v. St. Louis Music Supply Co., Inc.,

939 F.2d 1191 (8th Cir. * 1976). The

district court ignored all controlling

precedent and applicable legal standards

when it entered its order of dismissal with

prejudice.

To dismiss with prejudice when no

party to the action is seeking such a

disposition constitutes abuse per se. This

17

Court should now take this opportunity to

Clarify this issue.

CONCLUSION

The district court clearly abused its

discretion in this case. The record does

not support a finding of contumacious

conduct or intentional delay by Mr. Woods.

Lesser alternative Sanctions were not

considered by the district court. Without

first meeting these two requirements, a

district court may not dismiss a case with

prejudice.

Respectfully submitted,

Dennis J.C. Owens, Esquire

Member of the Bar of the

Supreme Court of the

United States

1900 City Center Square

1100 Main Street

Kansas City, Missouri 64105

Telephone: (816) 472-0800

Facsimile: (816) 421-1183

Counsel for the Petitioner

Jerry Woods

APPENDIX

-Trial Court’s Order Dismissing

Case With Prejudice,

February 13, 1991 ................. A- 2

-Opinion of United States Court of

Appeals for the Eighth Circuit,

EMPEY Bhs BOOP io vcescwakccescce: A= 4

-Order Denying Rehearing, April 13,

WMO PREDECEN GG NEN PENG n Godse. cc. A-11

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

JERRY D. WOODS,

Plaintiff,

No. 89-144-CV-W-3

FILED FEB. 13, 1991

V.

UNION PACIFIC

RAILROAD COMPANY,

Defendant.

ee eee eee eae wae

ORDER

The above captioned case was called

for trial today. Plaintiff asks the Court

for leave to file an amended complaint.

Leave to file is DENIED because the amended

complaint is untimely and good cause has

not been shown to allow the untimely filing

of the amended complaint.

Plaintiff moves the Court to dismiss

this case without prejudice. Virtually no

discovery has been done in this case.

Exhibit lists and witness lists were not

provided to Defendant nor the Court.

Defendant has incurred approximately $2,000

A-2

i

in defending this suit and has expended

approximately one hundred hours defending

this suit. Plaintiff has attended two

pietrial conferences with the Court and has

been instructed to follow the local rules

and to obtain the advice of counsel, in

anticipation of the trial set for today.

Plaintiff was not ready to go to trial

today. Defendant was willing ana ready to

go to trial today.

Accordingly, it is hereby ORDERED that

this case is DISMISSED WITH PREJUDICE.

It is further ORDERED that Plaintiff

motion for leave to file an amended

complaint is DENIED.

IT IS SO ORDERED.

Elmo B. Hunter

SENIOR U.S. DISTRICT JUDGE

Date 2-13-91

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 91-1556

Jerry Woods,

Appellant,

Vv. Appeal from the

United States

District Court

for the Western

District of Missouri

Union Pacific

Railroad Company,

+ erneene et & +

Appellee.

Submitted: January 8, 1992

Filed: February 21, 1992

Before JOHN R. GIBSON, BOWMAN, and LOKEN,

Circuit Judges.

BOWMAN, Circuit Judge.

Jerry Woods appeals from the order of

the District Court’? dismissing his

complaint with prejudice. We affirm.

‘The Honorable Elmo B. Hunter, Senior

United States District Judge for the

Western District of Missouri.

A-4

|

Woods filed a pro se complaint on

December 8, 1989, alleging that Union

Pacific wrongfully had discharged him from

its employment in violation of Title VII.

Union Pacific answered the complaint on

December 22, 1989. On April 9, 1990, the

District Court ordered a proposed

Scheduling order be submitted by May il.

On April 23, 1990, Union Pacific served

Woods with a set of interrogatories and a

request for production of documents. On

ew 23, Woods moved to extend the time for

his response. The District Court extended

Woods’s time to answer the interrogatories

and produce the documents to June 23, 1990.

With the court’s permission, a late

Proposed scheduling order was filed by

Union Pacific on June 8. Also on that day,

the court set a discovery scheduling order

with a discovery deadline of September 4,

1990.

The court ordered Woods to meet with

a Magistrate Judge? on September 6 to

discuss Woods’s problems with answering

Union Pacific’s deposition questions

propounded to him on August 27. At that

meeting, the Magistrate Judge informed

Woods that Union Pacific’s questions were

proper and that the requested information

was discoverable. On September 10, Union

Pacific filed a proposed exhibit list and

a proposed witness list. Woods filed a

motion on September 11 to extend the

deadline for the completion of discovery,

which was denied by the District Court on

September 21. Meanwhile, Woods failed to

appear at a deposition scheduled for

September 14. On October 3, the court

ordered both parties to file a certificate

*The Honorable John T. Maughmer, United

States Magistrate Judge for the Western

District of Missouri.

A-6

aerated

of completion of discovery by October 13.

On October 17, the court Ordered Woods to

answer the questions asked of him at the

August 27 deposition within five days or

risk being "Subject to Sanctions,

including, but not limited to, dismissal of

his cause of action." Order of October 7,

1990, reprinted in appellant’s Appendix at

-

Six days later, Woods filed another

motion to extend the deadline to complete

discovery. This motion was denied by the

District Court on October 29. On November

9, Woods filed yet another motion to extend

the deadline to complete discovery. This

motion was accompanied by a motion to have

two attorneys entered as Woods’s counsel,

which was granted. A pretrial conference

was held on December 3, after which the

District Court granted the motion to extend

the deadline for discovery to January 15,

A-7

1991, with the instruction that no further

extensions would be granted. Another

pretrial conference was held on February 1,

1991, just twelve days before the scheduled

trial date. At this conference Woods’s

attorneys withdrew from the case. Woods

was informed by the court that no further

delays would be allowed, and that the trial

would proceed as scheduled on February 13.

On February 5, Union Pacific submitted an

exhibit list, a witness list, proposed

findings of fact and conclusions of law,

and trial briefs. Union Pacific appeared

on February 13, the scheduled first day of

the trial, ready to proceed with the case,

but a new attorney appeared for Woods and,

with Woods not yet present despite the

trial setting, moved to dismiss the case

without prejudice. This was the proverbial

last straw, as the District Court denied

een

the motion and dismissed the complaint with

prejudice.

Although dismissing a_ case with

prejudice is a severe Sanction that should

be taken Sparingly, it is wel] within the

District Court’s discretion to dismiss a

case with prejudice if there is a clear

record of delay. DuBose Vv. Minnesota, 893

F.2d 169, 171 (8th Cir. 1990). Woods

repeatedly missed deadlines and performed

very little discovery. He filea no exhibit

list or witness lists. Further, the court

advised Woods on at least three occasions

of his responsibility to conform to the

local practice rules and of the

desirability of retaining counsel.

Finally, twelve days before the scheduled

trial date, the court allowed Woods to

change counsel on the understanding that

the trial would Proceed as_ scheduled.

Woods personally had notice of the need to

A-9

conform to the court’s schedule. We are

satisfied that the dismissal of this case

with prejudice does not unfairly punish

Woods for the sins of his counsel, but

instead is an appropriate sanction for

Woods’s failure to comply with the court’s

orders and his failure to prosecute his

suit with anything approaching reasonable

diligence.

In these circumstances, we cannot say

the District Court abused its discretion in

dismissing Woods’s complaint with

prejudice. Accordingly, the order of the

District Court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS,

EIGHTH CIRCUIT.

a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

NO. 91-1556WMKC

Jerry D. Woods,

Appellant,

Vv.

Union Pacific

Railroad Company,

Appellee.

The petition

Panel is denied.

Order Entered at

Court:

Michael E. Gans

Appeal. from the

United States

District Court for

the Western District

of Missouri

+ + + te eH

for rehearing by the

April 3, 1992

the Direction of the

Clerk, U.S. Court of Appeals, Eighth

Circuit