This case is a consolidation of two actions alleging that the defendant Greyhound Lines, Inc. discriminated against the plaintiff on the basis of race in terminating his employment on three separate occasions. The district court dismissed the plaintiff’s lawsuit pursuant to Federal Rule of Civil Procedure 41(b) 1 for failure to prosecute the actions and pursuant to Federal Rule of Civil Procedure 37(b)(2)(C) 2 for failure to cooperate in discovery. The court further denied thе plaintiff’s motion for relief from the dismissal order pursuant to Federal Rule of Civil Procedure 60(b). 3 We affirm.
I.
The plaintiff, as a black male, was employed by Greyhound Lines as a bus driver in 1966. In August of 1973, Stevens was discharged from his employment with Greyhound for allegedly hitting a fellow Greyhound employee, Valerie Billups, but after an arbitration hearing, was reinstated in January of 1974. Greyhound again terminated the plaintiff’s employment seven months later in July of 1974, this time for allegedly falsifying his time records and for becoming “involved in an altercation with a [Greyhound] terminal employee which resulted in [Stevens] receiving a gun shot wound .... ” Stevens again went to arbitration and was ordered reinstated to his employment. Four years later, while in Greyhound’s employ, Stevens filed his first federal district court suit alleging that Greyhound had discriminated against him on the basis of race in terminating his employment in 1973 and 1974. 4 The district court set a trial date of August 11, 1980.
Sometime in 1979, 5 the plaintiff received a third and final discharge for allegedly harassing a fellow employee at the Grеyhound terminal. On August 7, 1980, four days before the lawsuit arising from the 1973 and 1974 employment discharge was scheduled for trial, Stevens filed a second lawsuit in the district court, alleging that he had been discharged a third time because of his race and also because he had previously sued Greyhound for racial discrimination. The court granted Stevens’ motion to consolidate both racial discrimination actions, and set a trial date of September 21, 1981 for the consolidated actions.
*1226 On July 14, 1981, approximately two months before the scheduled trial date, the plaintiff filed a formal complaint against his attorney with the Indiana Supreme Court Disciplinary Commission, alleging that his attorney “didn’t care about handling [the] case” and that his attorney had made disparaging racial remarks concerning him (Stevens). After the filing of this complaint, the plaintiff’s attorney moved the district court for permission to withdraw from representing the plaintiff. Stevens opposed thе withdrawal motion, even though he had previously expressed his dissatisfaction with his attorney to the Disciplinary Commission. In light of the contested withdrawal motion, the court once again continued the September 21,1981 trial date, and reassigned the case for trial to begin on December 14, 1981.
At an October 30, 1981 pre-trial conference, the trial court granted Stevens’ attorney’s leave to withdraw and instructed the plaintiff to secure new counsel. 6 Late in the week preceding the December 14, 1981 trial date, the court learned that the plaintiff in fact had failed to obtain new counsel as of this date and would be without counsel for trial on December 14. Nevertheless, the court held an on-the-record conference on December 14, 1981.
At the conference the plaintiff stated that while he had made efforts to obtain new counsel through the NAACP, he informed the court that he had not yet formally retained a lawyer. The primary reasons the plaintiff gave for his lack of counsel were his inability to obtain his records from his former counsel and lack of funds sufficient to retain new counsel. In an effort to remedy the situation, Judge Steck-ler had his clerk arrange with the lawyer for the return of Stevens’ records. The attorney also agreed to waive any outstanding fees for representing Stevens. The court advised Stevens that he could obtain his records from the attorney, after which the following discussion took place:
“The Court: Well, all I can say, now we will give a new trial date, and I will tell you, Mr. Stevens, I will have no alternative except to dismiss your lawsuit if we don’t go to trial on the next trial date. Now, when can you get a lawyer? I’m going to let you tell me. I’m trying to accommodate you.
“Mr. Stevens: I think it will take me— well, I can get a lawyer, but the fact by the time he reads the files, and I think it will probably take me a month to go back to trial, by the time I pay a lawyer, borrow money to pay a lawyer and so forth.
“The Court: Do you have a date? I want to give him plenty of time. I want the case prepared; I want to try it. If he wants another year, we will give him another year.
“Mr. Stevens: I want to get it off with myself personally, because it’s a lot of mental strain on me and my family. If you have never been fired or nothing, you don’t know what you go through. It’s a mental strain with me myself personally, because I know I’m right.
“The Court: That is what we want to try to find out, whether you are right or whether you arе wrong.
“Mr. Stevens: That’s what I want.
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“The Court: I want to give him at least 60 days.
“Mr. Stevens: I appreciate that, sir.
“The Court: 60 or 90 days.
“Mr. Stevens: I’d like to know the exact date.
“The Court: We might even give him six months.
“Ms. Hicks [plaintiff’s witness]: That’s nice.
“The Court: I just don’t want to hear you come back and complain you didn’t have time to get your work done.
“Mr. Stevens: I appreciate that.
“Mr. Halberstadt: [court clerk] May 3?
*1227 “The Court: Put it on for the month of March. Give him the end of March. That gives him almost 90 days.
“Mr. Halberstadt: That will be March 29th.
“The Court: I don’t know what about your situation.
“Mr. Maley: [defendant’s attorney] That will be fine, Your Honor. I was just trying to — the week of the 29th of March is fine, and we will be prepared.
“The Court: Well, the case is reset for March 29th.
“Mr. Halberstadt: 9:30 a.m.
“The Court: And if we don’t get it tried then, I don’t know how we will be by the time we get to it.
“Mr. Stevens: I will be prepared, sir. The file was all I needed. I will be prepared. If I don’t, it won’t be no exсuse as far as I am concerned, because you did give me that time.”
On March 1, 1982, the defendant served the plaintiff with a notice to take his personal deposition on March 16, 1982 along with a subpoena duces tecum requesting the plaintiff to bring with him copies of all documents he intended to submit as exhibits at trial. After Stevens appeared at the deposition empty-handed, without counsel and without copies of the documents, the following exchange between the defendаnt’s attorney and Stevens took place:
“Q: This is a subpoena for you to appear at the offices of John Connor & Associates, Court Reporters, on Tuesday, March 16,1982 at 9 o’clock a.m. for deposition?
“A: Yes, it is.
“Q: This document provides to bring with you copies of all documents that you as plaintiff intend to submit as exhibits at trial of the above causes of action; is that correct?
“A: That’s what it says.
“Q: Do you have with you copies of the documents that you intend to submit as exhibits at trial of this cause of action on March 29, 1982?
“A: No.
“Q: Are you represented by an attorney today?
“A: No.
“Q: Do you have an' attorney presently representing you?
“A: No.
“Q: Are you willing to proceed with deposition today without counsel?
“A: No.
“Q: You are indicating that even though you have been given notice of the deposition and served with subpoena that you are refusing to proceed with deposition today, March 16, 1982?
“A: That is correct.
“Mr. Maley: I would like to introduce as part of the record these exhibits 1 and 2 being the notice to take the deposition and the subpoena duces tecum to give deposition.
“Q: Do you have any objection to those two documents 'being made part of the record to be submitted to the Court?
“A: Don’t make me no difference.
“Q: You do understand that a copy of this proceeding that we have had this morning is going to be submitted to Judge Steckler?
“A: Yes.
“Q: Knowing that, it is still your position that you will not proceed with deposition today?
“A: That’s correct.”
The next day Greyhound moved the court to dismiss the plaintiff’s actions pursuant to Federal Rules of Civil Procedure 37(b)(2)(C) and 41(b), and on March 18 the court granted Greyhound’s mоtion, dismissing the actions with prejudice “for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) and for failure to make discovery. Fed.R.Civ.P. 37(b)(2)(C).” On April 9, 1982, Attorney Loren J. Comstock appeared before the court on behalf of the plaintiff and filed a motion pursuant to Federal Rule of Civil Procedure 60(b) for relief from the court’s dismissal order. The trial court denied the Rule 60(b) motion. The plaintiff appeals from the court’s dismissal order and from the denial of his Rule 60(b) motion.
*1228 II.
The first issue in this case is whether the district court properly relied on Federal Rule of Civil Procedure 37(b) in dismissing the plaintiffs action after Stevens failed to deliver the subpoenaed material and refused to proceed with his deposition. In its dismissal, the court cited Rule 37(b)(2)(C), which provides that a suit may be dismissed if “a party .. . fails to obey an
order
to provide or permit discovery .... ” (emphasis added). As the court stated in
Fox v. Studebaker-Worthington, Inc.,
“[W]e believe that the term ‘appear’ as used in Rule 37(d) must be strictly construed, limiting it to the case where a defendant literally fails to show up for a deposition session. Where a defendant does in fact aрpear physically for the taking of his deposition but refuses to cooperate by being sworn and by testifying, the proper procedure is first to obtain an order from the court, as authorized by Rule 37(a), directing him to be sworn and testify.”
Securities and Exch. Comm. v. Research Automation Corp.,
We next consider whether the district court properly dismissed the plaintiff’s suit under Rule 41(b) for failure to prosecute. Appellate review of a Rule 41(b) dismissal order for failure to prosecute is limited to whether the district court abused its discretion in dismissing the plaintiff’s actions.
Link v. Wabash,
Our resolution of this case is governed by the principles set forth in this cоurt’s recent decision in
Locascio v. Teletype Corporation,
“While there are no clear-cut rules governing the exercise of discretion on a motion to dismiss for failure to prosecute, this circuit has adhered to a standard which looks to the question of arbitrariness on the part of the trial court in determining whether there is an abuse of discretion warranting reversal. Link. In general we will not set aside a trial court’s discretionary order unless it is clear that no reasonable person could concur in the trial court’s assessment of the issue under consideration. Beshear v. Weinzapfel,474 F.2d 127 (7th Cir.1973) (adopting the standards set forth in Particle Data Laboratories, Inc. v. Coulter Electronics, Inc.,420 F.2d 1174 , 1178 (7th Cir.1969), governing appellate review of actions within a trial .court’s discretion).
“The instant case is a close and difficult one, due to the number of plaintiffs involved, external factors such as the congestion of the trial court’s docket, and the severity of the sanction imposed. The interests of justice require that the use of such an extreme and final solution as dismissal with prejudice bе held in abeyance until it is clear that lesser sanctions either have not been or will not be effective to remedy the dilatory conduct. However, this court cannot substitute its judgment for that of the trial court simply because it might have acted differently in the trial judge’s place. The record indicates a lack of prosecutive intent on plaintiffs’ part in their inability to secure and retain counsel whom they were willing to allow to effectively prosecute thеir action, and in their failure to demonstrate to the satisfaction of the trial court that they had been and were continuing to make a concerted good faith effort to obtain an attorney to represent them at trial. Judge Getzendanner warned them of the drastic consequences that would ensue should they fail to secure a replacement for their trial attorney .... ” Id. 8
In this case the trial court admonished the plaintiff on two separate oсcasions, October 30 and December 14, 1981, to retain other counsel to represent him. In fact, on December 14, the court specifically informed Stevens “that I will have no alternative except to dismiss your lawsuit if we don’t go to trial on the next trial date.” Stevens responded by stating: “I will be prepared. If I don’t, it won’t be no excuse as far as I am concerned, because you did give me that time.”
9
However, three months later and less than two weeks before the triаl date, Stevens appeared for his deposition hearing without an attorney, without the documents requested in the subpoena
duces tecum,
and refused to proceed. Even though he had had three months to retain an attorney, he failed to do so and made no effort to inform the court that he had attempted to or was unable to secure counsel. In light of the
*1230
trial court’s two separate instructions to Stevens to secure replacement counsel, evеn one untrained in the law should have realized the need to inform the court of his inability to retain an attorney, and to explain why he was unable to do so.
See Anthony v. Marion County General Hospital,
Viewing this case “with regard to its own particular procedural history and the situation at the time of dismissal”, the district court could reasonably have concluded that Stevens’ conduct, viewed in its entirety, indicated “a lack of prosecutive intent ... ”,
Locascio,
While we recognize that dismissal is a harsh sanction only to be imposed in extreme circumstances and that the law favors giving plaintiffs their day in court,
Scarver v. Allen,
*1231 “[T]he most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction, but to deter those who might be tempted to such conduct in the absence of such a deterrent.”
Our review of plaintiffs motion seeking relief from the district court’s dismissal order pursuant to Federal Rule of Civil Procedure 60(b) is likewise limited to whether or not the district court abused its discretion.
United States v. $48,595,
Notes
. Fed.R.Civ.P. 41(b) provides:
“(b) 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 him.... 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, fоr improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits.”
. Fed.R.Civ.P. 37(b)(2)(C) recites:
“(b) Failure to Comply with order.
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“(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, or if a party fails to obey an order entered undеr Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
* * * ”
. Fed.R.Civ.P. 60(b) states:
“(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, etc. On motion and upon such terms as аre just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; .... ”
. The Amalgamated Transit Union, Stevens’ collective bargaining representative, was also named as a defendant, but was later dismissed from the action and is not involved in this appeal.
. The record does not disclose the exact date of Stevens’ third disсharge.
. Although no record of the October 30 pre-trial conference exists, the court’s order dismissing the plaintiffs suit states that Judge Steckler instructed the plaintiff, at the conference, to secure new counsel.
. Research Automation Corp., involved a trial court’s entry of default judgment as a Rule 37(d) sanction. A similarly strict construction of the term “appear” is equally appropriate where the sanction is a dismissal of a plaintiff’s suit as in this case. We express no opinion as to the proper construction of the term “appear” in cases involving sanctions less severe than default judgment or dismissal.
. The decision in
Camps v. C & P Telephone Company,
. The plaintiff at no time expressed a desire to proceed pro se.