John R. KNOLL, Plaintiff-Appellant/Cross-Appellee, v. AMERICAN TELEPHONE & TELEGRAPH COMPANY and Lucent Technologies, Inc., Defendants-Appellees/Cross-Appellants.
Nos. 97-3246, 97-3345.
United States Court of Appeals, Sixth Circuit.
Argued March 18, 1998. Decided May 11, 1999.
176 F.3d 359
Ronald H. Isroff (argued and briefed), Kimberly B. Schroeder (briefed), Ulmer & Berne, Cleveland, OH, James M. Staulcup, Jr. (briefed), Lucent Technologies, Inc., Lisle, IL, for Defendants-Appellees/Cross-Appellants.
Before: BOGGS, NORRIS, and MOORE, Circuit Judges.
NORRIS, J., delivered the opinion of the court, in which BOGGS, J., joined. MOORE, J. (pp. 366-68), delivered a separate dissenting opinion.
OPINION
ALAN E. NORRIS, Circuit Judge.
Plaintiff John R. Knoll filed suit against defendants AT & T Company and Lucent Technologies, Inc., alleging that defendants discharged and failed to rehire him because of his age. He claimed defendants failed to hire and wrongfully discharged him in violation of the Age Discrimination in Employment Act,
On April 29, 1996, the district court held a case management conference at which it set a status conference for August 22, the discovery deadline for October 28, and the dispositive motions deadline for December 8. During the August status conference, the court indicated that the trial would begin February 19, 1997. On September 6, the court issued an order which, in addition to formally setting the trial date for February 19, also specified the procedure for requesting a continuance. The latter portion of the order provided:
No party shall be granted a continuance of a trial or hearing without a written motion from the party or counsel stating the reason for the continuance endorsed in writing by all moving parties and their lead counsel of record. The Court will not consider any motion for continuance due to a conflict of trial assignment dates unless a copy of the conflicting assignment is attached thereto. The motion shall be filed within fifteen (15) days of counsel becoming aware of the conflict, and not less than thirty (30) days prior to trial.
Plaintiff served defendants with Interrogatories and Requests for Production of Documents, and defendants timely responded on May 29, 1996. Although defendants supplied or made available most of the information requested by plaintiff, defendants objected to plaintiff‘s request for the personnel files of several AT & T employees. Defendants requested that plaintiff stipulate to a protective order limiting access to the files to plaintiff‘s counsel but permitting plaintiff‘s counsel to question their client as to the meaning of any nebulous terms or figures. For over three months, plaintiff‘s counsel made no attempt to review documents made available to them by defendants or to respond to defendant‘s objections.
On September 4, 1996, plaintiff finally objected to defendants’ proposed stipulation and demanded that defendants produce the requested personnel files without reservation. After an exchange of letters, the parties agreed that the court would have to resolve the issue and that, in the interim, defendants would turn over the personnel files subject to the language of the proposed protective order. Defendants filed a Motion for Protective Order on October 11. Plaintiff responded with a Motion to Compel and a Motion to Extend Discovery by at least sixty days. Unaware that plaintiff had filed the Motion to Compel, on October 17 defendants notified plaintiff that they were prepared to produce (subject to the proposed protective order) all but one of the personnel files.1 It was not until this time, more than five months after defendants’ initial accession to plaintiff‘s discovery requests and only a few weeks before the discovery deadline, that plaintiff‘s counsel requested an appointment to view documents made available to them by defendants.
On November 4, defendants filed a response to plaintiff‘s motions, explaining that while they did not object to an extension of the discovery period, they did object to plaintiff‘s representations that defendants were the cause of the delay. On November 18, by marginal entry order, the district court denied plaintiff‘s motions to compel and to extend discovery and granted defendants’ request for a protective order.
On December 10, defendants filed a Motion for Summary Judgment. In an attempt to gain further evidence to contest defendants’ motion, plaintiff‘s counsel contacted and interviewed two current managers of AT & T.2 Plaintiff then noticed the depositions of these two employees. Defendants moved to prohibit the taking of these depositions, citing passage of the discovery deadline two months earlier.
On January 24, twenty-six days before trial, plaintiff filed a motion seeking a continuance. It fell short of complying with the court‘s order concerning continuances, suffering from the same omissions as the letter, and in addition was not filed within the thirty-day time limit. Although the court did not formally rule on this motion, it did hold a status conference on February 18, the day before trial, and there indicated that plaintiff‘s counsel would be afforded several days to prepare for trial following the conclusion of the conflicting trial. In order to further ease counsel‘s burden, the court also waived submission of trial briefs and proposed jury instructions. At this same conference, the district court granted summary judgment in favor of defendants on plaintiff‘s promissory estoppel and failure to hire claims but denied defendants’ motion regarding the wrongful discharge claim.
When plaintiff‘s counsel‘s other trial concluded on February 20, the district court informed both parties that trial would commence on Tuesday, February 25. Shortly after receiving the court‘s communication, plaintiff filed yet another motion to continue and a motion to permit limited discovery (to depose the two AT & T managers). The court denied both of these motions. The day before trial, plaintiff‘s attorneys filed a motion to withdraw as counsel. Counsel contended that they could not ethically proceed with the trial as scheduled for lack of adequate preparation. Plaintiff also filed a letter with the court seeking a continuance to secure new counsel. The court denied counsel‘s motion to withdraw.
Despite having been on notice since August, 1996, that the case was scheduled for trial in late February, 1997, plaintiff‘s counsel appeared on the day of trial without files or exhibits and indeed did not even sit at counsel table with their client. Plaintiff explained to the court that neither his attorneys nor he himself was prepared to try his case, and he again asked for a continuance so that he might obtain new counsel. Plaintiff and counsel were warned that if someone did not proceed with the trial of plaintiff‘s case, the court would have no alternative but to enter a dismissal for lack of prosecution. The court then requested an explanation from plaintiff‘s counsel for their failure to prepare for trial. Counsel proffered three reasons: (1) the court had stubbornly refused to grant a continuance despite its knowledge of counsel‘s conflict; (2) the actions of defendants and the court‘s discovery rulings had made discovery next to impossible; and (3) lead counsel was physically and emotionally incapable of handling back-to-back trials. When questioned by the court as to why they had not timely requested a continuance pursuant to the clear written instructions contained in the August trial order, counsel could offer no explanation.
After tracing the history of counsel‘s dilatory conduct, the court dismissed the case without prejudice for failure to prosecute. The court later issued nunc pro tunc orders on all motions upon which it had not previously ruled. This appeal followed.
II.
There is certainly no merit to the contention that dismissal of petitioner‘s claim because of his counsel‘s unexcused conduct imposes an unjust penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.
This court has been “reluctant to uphold the dismissal of a case ... merely to discipline an errant attorney because such a sanction deprives the client of his day in court.” Buck v. U.S. Dep‘t of Agric., Farmers Home Admin., 960 F.2d 603, 608 (6th Cir.1992). Hence, “[a]lthough the Link principle remains valid, ... we have increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994) (citation omitted). In the context of dismissal pursuant to
In Bishop v. Cross, 790 F.2d 38 (6th Cir.1986), this court reversed a district court‘s
Similarly, in Carter v. City of Memphis, supra, this court reversed a district court‘s
Where Bishop and Carter provide examples of the type of conduct not properly sanctioned by dismissal for failure to prosecute, our opinions in Coston v. Detroit Edison Co., 789 F.2d 377 (6th Cir.1986), Hughley v. Eaton Corp., 572 F.2d 556 (6th Cir.1978), and Harmon v. CSX Transp., Inc., 110 F.3d 364 (6th Cir.1997), exemplify the contrary. In Coston, this court upheld the district court‘s
Harmon failed to respond to the amicable requests of CSXT‘s counsel, he failed to respond to CSXT‘s motion to compel, and he failed to comply with the district court‘s November 2, 1995, order. To make matters worse, Harmon then failed to respond to the motion to dismiss, even after the district court was gracious enough to grant him an extension of time. This record is more than adequate to establish that Harmon‘s counsel was stubbornly disobedient and willfully contemptuous.
The conduct of plaintiff‘s counsel in the present case is more closely analogous to that of the attorneys in Coston, Hughley, and Harmon than that of the attorneys in Bishop and Carter. Here, counsel neglected plaintiff‘s case, repeatedly ignored court orders without excuse, and ultimately attempted to force the court to grant a continuance by refusing to proceed on the day of trial. Where a plaintiff does not appear at the trial date or, as in this case, is inexcusably unprepared to prosecute the case,
Plaintiff‘s counsel asserts that although a willful failure to prepare for trial might constitute contumacious conduct, counsel‘s failure to prepare was a result of defendants’ refusal to accommodate discovery and the district court‘s failure to remedy defendants’ behavior. Indeed, at oral argument plaintiff‘s counsel asked this court to remand for further discovery. By the trial date, however, the discovery deadline had long since passed. Thus, unless the district court materially erred in its discovery rulings, counsel‘s failure to prepare for trial is without excuse. We therefore turn to a brief review of the district court‘s challenged discovery rulings.3
Plaintiff‘s central complaint regarding discovery concerns the availability of the personnel files of several nonparty AT & T employees. Specifically, plaintiff contends that the district court abused its discretion in granting defendants a protective order that limited access to such files to plaintiff‘s counsel. Such protective orders are commonly granted, however, as a means of protecting the privacy interests of nonparties while yet serving the needs of litigation. See 8 Wright & Marcus, § 2041, at 538 (“[A] court may order that confidential information not be disclosed to the client by the attorney.“). Courts have also specifically granted such orders to protect nonparties from the harm and embarrassment potentially caused by nonconfidential disclosure of their personnel files. E.g., Donald v. Rast, 927 F.2d 379 (8th Cir.1991) (upholding district court‘s decision in a § 1983 action to limit the disclosure of police officers’ personnel files to plaintiff‘s attorney in light of the private nature of information contained therein); Petz v. Ethan Allen, Inc., 113 F.R.D. 494, 497 (D.Conn.1985) (ordering defendants to produce job evaluations of nonparties only “for inspection by plaintiff‘s counsel in the office of counsel to the defendants“). As defendants noted in their Memorandum in Support of the Motion for Protective Order, personnel files might contain highly personal information such as an individual‘s unlisted address and telephone number, marital status, wage information, medical background, credit history (such as requests for garnishment of wages), and other work-related problems unrelated to plaintiff‘s claims.
Plaintiff‘s counsel also offers assorted complaints that defendants delayed and avoided turning over documents, intimidated witnesses, and stymied depositions, and that the district court, through denials of plaintiff‘s various motions, refused to curb defendants’ deplorable behavior. Counsel asserts that these occurrences inhibited their ability to prosecute plaintiff‘s case. It seems readily apparent, however, that it was counsel‘s own neglect that resulted in incomplete discovery. The district court so found, as evidenced by its account on the day of trial. The court‘s findings are to be regarded as fact unless they are clearly erroneous, and it is apparent that the court did not so err.
If the district court‘s discovery rulings did not amount to an abuse of discretion, and in view of the admission by plaintiff‘s counsel that they were yet in need of further discovery before trying plaintiff‘s case, we are unable to fault the district court‘s conclusion that counsel‘s failure to be prepared for trial was without valid excuse and constituted contumacious conduct. The contumacy of counsel‘s failure is even more evident in light of the district court‘s attempts to accommodate counsel‘s schedule. One of counsel‘s proffered excuses was that their lead attorney had had another trial in close temporal proximity. However, as the court noted, counsel knew of the conflicting trial dates for months and did not seek a continuance until the eve of trial. The court granted a continuance, even though plaintiff‘s request had not been filed timely, affording counsel between four and five extra days to prepare following the conclusion of the conflicting trial. Furthermore, the district court eased counsel‘s burden by waiving requirements for trial briefs and proposed jury instructions.
For the foregoing reasons, we conclude that the district court‘s
For the foregoing reasons, we hold that the district court did not abuse its discretion in dismissing plaintiff‘s action for lack of prosecution. In light of our conclusion on this issue, we need not review either the district court‘s interlocutory discovery rulings or to the court‘s decisions regarding summary judgment. E.g., DuBose, 893 F.2d at 171 (“[T]he claims on which the court had earlier granted partial summary judgment did not merge into the
MOORE, Circuit Judge, dissenting.
I do not agree with the majority‘s apparent holding that not being prepared to proceed on the day of trial per se requires dismissal under our precedents governing
The precedents of this court make clear, as the majority recognizes, that “[n]otwithstanding Link, ‘this court, like many others, has been extremely reluctant to uphold the dismissal of a case ... merely to discipline an errant attorney because such a sanction deprives the client of his day in court.’ ” Harmon v. CSX Transportation, Inc., 110 F.3d 364, 367 (6th Cir.1997) (citation omitted) (ellipsis original). The majority fails to point out that the ninety-day period to bring a discrimination action under the ADEA had expired at the time the district court dismissed Knoll‘s action. See
Knoll‘s counsel sent a letter to the district court more than thirty days prior to trial seeking “guidance” on the resolution of a potential conflict caused by three potentially concurrent trials. Apparently, the district court had responded to Knoll‘s conflict concerns in August 1996 at the scheduling of the trial by advising Knoll to wait until closer to trial to see how the three cases progressed. This letter was an attempt to comply with the court‘s suggestion. Although the letter did not satisfy the district court‘s trial order that established the procedure for requesting a continuance, the letter did advise the court of a problem and asked for assistance. Apparently the district judge before whom Knoll‘s attorneys’ other trial was scheduled responded to the letter, but the district judge in this case did not. Knoll‘s counsel then filed a motion seeking a continuance. Although this motion was late and still failed to comply with the district court‘s trial order, it was only four days delinquent, was consistent with the previous letter, and was not unexpected. The defendants did not object to a continuance. See J.A. at 579. The district court, however, did not rule on this motion. The district judge‘s only response came over three weeks later, during a status conference held the day before the originally scheduled trial date, when he indicated to Knoll‘s counsel that they would have several days to prepare following the conclusion of the conflicting trial.
The majority holds that “[w]here a plaintiff does not appear at the trial date or, as in this case, is inexcusably unprepared to prosecute the case,
I do not dispute that Knoll‘s counsel acted improperly and that their actions were inexcusable. Indeed, it is difficult to understand why this law firm, even though small, could not prepare for Knoll‘s trial in the five-day period allotted to them by the district court. However, considering all of the relevant circumstances, including the district court‘s failure to rule promptly on the motions for continuance or respond to the plaintiff‘s dilemma, the facts simply do not support the conclusion that the counsel‘s failure to proceed on February 25 was contumacious.
Under the four factors this court should consider to determine whether a district court‘s dismissal of a case was an abuse of discretion, see Stough, 138 F.3d at 615, the facts of this case weigh in favor of not dismissing Knoll‘s case. First, there is no evidence that Knoll‘s counsel acted in bad faith. Counsel repeatedly sought extensions of time and felt that proceeding with the case without a continuance would have been ethically improper. Second, there is no evidence that AT & T would be prejudiced by a continuance. AT & T did not object to any of Knoll‘s motions for a continuance. Third, although one might reasonably conclude that a party is presumed to be on notice that failing to proceed on the morning of trial could lead to dismissal, the events surrounding the scheduled commencement of this trial, especially the district judge‘s vague oral responses to Knoll‘s unopposed motions for a continuance, indicate that Knoll may well have been surprised by the judge‘s decision to dismiss the case.
Finally, the district court did not impose less drastic sanctions, and there is no evidence that it considered such an alternative. As the majority noted, this court has “increasingly emphasized directly sanctioning the delinquent lawyer rather than an innocent client.” Coleman v. American Red Cross, 23 F.3d 1091, 1095 (6th Cir.1994). Not only was there no showing that a delay in the trial for Knoll‘s counsel to prepare or for Knoll to find other representation would prejudice AT & T in any way, but also AT & T did not object to Knoll‘s request for a continuance. Considering all of the relevant facts and extenuating circumstances surrounding the scheduled commencement of trial, I would hold that the district court abused its discretion under this court‘s precedents by failing to explore alternatives, including monetary sanctions imposed on counsel, for reprimanding Knoll‘s dilatory counsel.
For the reasons stated above, I respectfully dissent.