DONNA B. FISCHER, Plaintiff-Appellant, v. CINGULAR WIRELESS, LLC, Defendant-Appellee.
No. 05-3391
United States Court of Appeals For the Seventh Circuit
May 1, 2006
Submitted April 6, 2006. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 04 C 7629—Charles P. Kocoras, Chief Judge.
POSNER, Circuit Judge. This appeal from the dismissal of a lawsuit because of the plaintiff‘s failure to prosecute it requires us to consider whether an explicit warning to the plaintiff must always precede such a dismissal.
On November 23, 2004, Donna Fischer filed a suit pro se against her former employer, Cingular, charging age and sex discrimination. The district judge dismissed the case without prejudice after Fischer failed to аppear at the first two status hearings that he had scheduled. She moved to reinstate the case, claiming thаt she hadn‘t
At an oral hearing on Cingular‘s motion, Fischer tried to excuse her failure to comply with the company‘s discovery requests. But she entangled herself in contradiсtions, first volunteering that her written responses were “partially done” and that she “was putting [them] in the mail today,” then acknowledging that she hadn‘t been able to comply “because I work six days a week” and later still “because I had a [real estate] trial,” then returning to her first point: “I was ready for my—ready to put it in the mail today.” She told the court that she was prepared to be deposed on July 15 as agreed, but then she backtracked, saying that “we had
The district judge rejected Fischer‘s excuses and told her “it is not a question of preparedness, it is a question of doing.” Noting the inconsistencies in her explanations and the fact that the case had been dismissed once before for failure to prosecute, the judge now dismissed the case with prejudice, precipitating this appeal. He did so without warning Fischer that dismissal loomed, though Ball v. City of Chicago, 2 F.3d 752, 760 (7th Cir. 1993), says there “must” be such a warning, and Ball‘s “must” was quoted in Aura Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d 903, 907-08 (7th Cir. 2003); see also Williams v. Chicago Board of Education, 155 F.3d 853 (7th Cir. 1998), while In re Bluestein & Co., 68 F.3d 1022, 1025 (7th Cir. 1995) (per curiam), says that the court “should” warn attorneys but “must” warn pro se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir. 2000), that the cоurt generally “should” warn but “must” warn if the plaintiff‘s failure to prosecute is due only to ordinary misconduct. Most of our cases, however, soften “must” to “should,” Harrington v. City of Chicago, 433 F.3d 542, 549 (7th Cir. 2006); Moffitt v. Illinois State Board of Education, 236 F.3d 868, 873 (7th Cir. 2001); Kruger v. Apfel, 214 F.3d 784, 787 (7th Cir. 2000) (per curiam); Dunphy v. McKee, 134 F.3d 1297, 1301 (7th Cir. 1998), or treat the terms as interchangeable (as in Ball, Bluestein, and Williams), or term the requirement of a warning merely the “general” rule. Federal Election Comm‘n v. Al Salvi for Senate Committee, 205 F.3d 1015, 1018 (7th Cir. 2000). Several of our сases (two discussed in the next paragraph—plus Ball itself, the original of the “must” requirement) are explicit that a warning is not always required, as are a number of cases in other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d Cir. 2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000); Rodgers v. Curators of the University of Missouri, 135 F.3d 1216, 1221 (8th Cir. 1998); Ehrenhaus v. Reynolds, 965 F.2d 916, 919, 921-22 (10th Cir. 1992).
Ball‘s use of “must” was not intended to lay down a rigid rule, as is clear from discussion elsewhere in the opinion. 2 F.3d at 756. It was intended rather as a useful guideline to district judges—a safе harbor to minimize the likelihood of appeal and reversal. Ball differs only in tone and nuance from the earlier discussion of the warning issue in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir. 1994), where we said that “although district courts are encouraged to warn litigants beforе dismissing a case for failure to prosecute, whether they in fact do so is clearly within their discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir. 1991). Leaving thе decision to the district courts ensures that dilatory tactics are sanctioned appropriately. Thе prejudice incurred by a delay in one case may far outweigh that caused in another. Were district cоurts required to warn litigants before dismissing a case, we would in effect be granting each litigant one opportunity tо disregard the court‘s schedule without fear of penalty regardless of the harm done to other litigants. Such a rulе would impermissibly burden the district courts in their efforts to manage their dockets. Using this standard, we held in Lockhart that inconsistencies in the plaintiff‘s excuse for not attending a discovery-related status hearing combined with the plaintiff‘s record of dilatory conduct supported the trial judge‘s decision to dismiss the case with prejudice even though he did not prоvide a warning beforehand.” Granted, the facts in Johnson were more extreme than in this case, and Kruger v. Apfel, supra, 214 F.3d at 787, sought to confine Johnson; but it did not purport to overrule it.
Cingular‘s request that the suit be dismissed if Fischer continued to disregard discovеry deadlines, the fact that the
AFFIRMED.
Teste:
_____________________________
Clerk of the United States Court of Appeals for the Seventh Circuit
USCA-02-C-0072—5-1-06