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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 506 U.S. 865

## Text

— 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0975%3A1. Public record. Not legal advice.