James Bergstrom v. Sgt. Michelle Frascone, 744 F.3d 571

Bergstrom sued several individuals (including police officers and his ex-wife) after 2010 events; the charges against him were later dismissed. The case was removed to federal court and put on a scheduling order.
Bergstrom was represented by attorney Jill Clark, whose repeated scheduling conflicts and prolonged, unpredictable medical leaves delayed discovery from late 2010 into mid-2012.
Clark failed to serve Bergstrom’s answers to defendants’ written discovery (first served June 2011) and missed a court-ordered June 15, 2012 deadline in the final amended scheduling order.
The district court warned Clark in a May 1, 2012 order that future noncompliance would result in dismissal; after another failure to comply, the court issued an Order to Show Cause and then dismissed the action with prejudice for failure to prosecute and to obey court orders.
The Eighth Circuit vacated the dismissal and remanded, reasoning the district court abused its discretion by imposing the ultimate sanction without first considering or finding lesser sanctions futile; most dilatory conduct was attributable to counsel rather than Bergstrom.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether dismissal with prejudice under Rule 41(b) was an appropriate sanction for failure to prosecute/obey court orders	Bergstrom argued dismissal was excessive and the district court failed to consider lesser sanctions; much misconduct was attributable to counsel	Defendants argued dismissal was warranted because of prolonged delay, prejudice, and prior court warnings	Court: Vacated dismissal — abuse of discretion because the district court did not consider lesser sanctions and counsel (not solely plaintiff) caused most delay
Whether dismissal with prejudice was permissible as a discovery sanction under Rule 37(b)(2)	Bergstrom argued lack of bad faith and no record that lesser sanctions were considered	Defendants argued failure to obey discovery orders and prejudice justified dismissal	Court: Vacated dismissal — Rule 37 requires an order compelling discovery, willful violation or bad faith, prejudice, and consideration of lesser sanctions; record lacks findings of bad faith or that lesser sanctions were futile

Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716 (8th Cir.) (standards for reviewing dismissal under Rule 41(b))
Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216 (8th Cir.) (balancing test for dismissals; proportionality of sanction)
Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555 (8th Cir.) (prejudice from discovery failures; requirement to consider lesser sanctions before dismissal under Rule 37)
Schoffstall v. Henderson, 223 F.3d 818 (8th Cir.) (dismissal as discovery sanction requires close scrutiny; opportunity to be heard)
Siems v. City of Minneapolis, 560 F.3d 824 (8th Cir.) (upholding dismissal where counsel repeatedly violated court orders and lesser sanctions would be futile)
Mann v. Lewis, 108 F.3d 145 (8th Cir.) (reversing dismissal where delay was solely attributable to counsel)
Link v. Wabash R.R., 370 U.S. 626 (U.S.) (a litigant may be held responsible for counsel’s dilatory conduct)