John Smalls v. County of Suffolk, 718 F. App’x 16

Plaintiffs John, Renee, and Maurice Smalls sued Suffolk County and individual officers alleging two warrantless entries (May 18 and June 4, 2013) and an unlawful detention of Maurice during the June entry.
Discovery was complete and the case was trial-ready; five depositions had been taken.
On April 18, 2016, Plaintiffs’ sole-practitioner counsel failed to appear timely for a scheduled pre-trial conference after attempting to attend multiple, simultaneous court appearances in different counties.
The district court waited ~29 minutes and then sua sponte dismissed the complaint with prejudice under Fed. R. Civ. P. 41(b).
Plaintiffs appealed the dismissal; they also filed a motion to vacate or amend the default judgment, and the district court denied that motion (the denial was appealed separately).
The Second Circuit vacated the dismissal and remanded, concluding dismissal with prejudice was an abuse of discretion and that lesser sanctions against counsel were appropriate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court properly dismissed the case with prejudice under Fed. R. Civ. P. 41(b) for counsel’s late arrival	Dismissal was too harsh; clients were not at fault and had prepared the case for trial	Dismissal was within district court’s discretion for failure to prosecute/comply	Dismissal with prejudice was an abuse of discretion; vacated and remanded for further proceedings
Whether plaintiffs waived appellate review by failing to brief the Rule 41(b) abuse-of-discretion argument	Urged review on manifest injustice grounds despite briefing defects	Argued waiver because opening brief did not address the Rule 41(b) dismissal issue	Court exercised discretion under Fed. R. App. P. 2 to overlook waiver because manifest injustice would result and addressed the merits
Whether a lesser sanction than dismissal was adequate	Monetary or counsel-focused sanctions would vindicate misconduct without barring plaintiffs	Dismissal was justified by counsel’s conduct and court scheduling needs	Court held a lesser sanction (against counsel) would be sufficient and proper
Whether the appeal of denial to vacate default judgment remains live after vacatur	Plaintiffs sought relief from the district court’s denial	Defendants defended the denial as proper	Appeal of denial became moot after vacatur of dismissal; court did not reach its merits

Norton v. Sam’s Club, 145 F.3d 114 (2d Cir.) (appellate briefing requirements and waiver)
McCarthy v. S.E.C., 406 F.3d 179 (2d Cir.) (need to include principal arguments in opening brief)
Frank v. United States, 78 F.3d 815 (2d Cir.) (failure to brief does not automatically preclude review)
United States v. Babwah, 972 F.2d 30 (2d Cir.) (overlooking briefing defects to prevent manifest injustice)
United States v. Loya, 807 F.2d 1483 (9th Cir.) (same)
United States v. Anderson, 584 F.2d 849 (6th Cir.) (same)
United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248 (2d Cir.) (dismissal is a harsh sanction for extreme circumstances)
LeSane v. Hall’s Sec. Analyst, Inc., 239 F.3d 206 (2d Cir.) (district court power to dismiss for failure to prosecute)
Lucas v. Miles, 84 F.3d 532 (2d Cir.) (standard for reviewing Rule 41(b) dismissals; preference for lesser sanctions)
Baptiste v. Sommers, 768 F.3d 212 (2d Cir.) (procedural prerequisites before dismissal: notice and opportunity to be heard)
Mitchell v. Lyons Prof’l Servs., Inc., 708 F.3d 463 (2d Cir.) (requirements for imposing dismissal sanction)