*2 KENNEDY, Circuit Judge. Plaintiff-Appellant James ap- peals the district court’s order dismissing the remaining count of his complaint as a sanction for his counsel’s failure to file a pre-trial memorandum and to attend the final pre-trial conference. Schreiber also appeals the district court’s order granting partial summary judgment to Defendants Officer William Moe and the City of Grand Rapids on his claims entry of warrantless and excessive brought force under 42 § U.S.C. 1983. For the reasons set forth below, REVERSE the district court’s dis- missal of Schreiber’s remaining excessive claim, force and REMAND the case for further proceedings consistent with this opinion.
BACKGROUND following The statement of facts is taken from the district opinion and order granting part and denying part De- summary fendants’ motion for judgment: On November approximate- at ly 3:39 p.m., Rapids the Grand Police Department emergency communications center received a 911 call from an anon- ymous reporting caller a domestic dis- pute between Schreiber and his 15- year-old daughter, Sarah.... The dis- patch operator labeled the incident a “Priority Rapids 2.” Grand Police could see Schreiber Officer Moe pro- opened, Manual of Procedures Department could see screaming involves the someone but Priority that a call vides against a Prelim physical harm invective. Tr. target potential approx- At present the scene. not able to person Officer Moe was also *3 dis- p.m., Moe was imately Moe, 3:46 Officer According to Officer see Sarah. home the to to patched son if Sarah was he asked Schreiber’s the While enroute situation. check however, boy the could an- okay, before dispatch the a from message he received door, swer, yell- to the Schreiber came a Priori- that it was explaining operator demanding to know ing profanities, and a 15- involving 2 call the welfare ty there. Prelim. why Officer Moe was anonymous girl an and that year-old 9, profanely at 11. then Tr. Schreiber Ex- she beat.” getting caller “thinks permit- not Officer Moe that he was told D. hibit Dep. apartment. in the Schreiber at ted that, prior dispute does Schreiber not him that he 25. Officer Moe informed arrival, Moe’s he and his to Officer welfare. going was check on Sarah’s were in a “heated” daughter involved Dep. Despite Schreib- Schreiber at 24. at 17. The Dep. Schreiber discussion. objection repeated, belligerent er’s the argument was culmination Sarah’s entry, Moe entered the the Officer Schreiber recent rebellious behavior. deeply he “was con- apartment because acknowledges during argument, the (Schreiber’s) daughter that his cerned phone away the from Sarah and he took injured okay may she and “threw it on the floor because she her.” may Prel- and have assaulted hang up.” Dep. at Schreiber wouldn’t Tr. at 13. Officer Moe conceded im. record, 21. It is not clear from the but him not invite into that Schreiber did prior point some to Officer Moe’s at the home. Prelim. Tr. at 13. arrival, work- Sarah a social telephoned residence, entering After Officer Services, Cindy er at Catholic Social living located Moe Sarah room spoke explained Musto that she Musto. crying observed that she was and and to calm him with Schreiber an effort 14, Prelim. Tr. at Schreiber upset. however, down, their conversa- during Dep. Despite at 29-30. Officer Moe’s tion, yell and threaten continued arrival, daughter both and his 8-9, Schreiber Dep. at daughter. his Musto 12. curse at each argue continued and hearing the phone left after Schreiber other. Prelim Tr. at 14-15. Officer Dep. at knock at the door. Musto 8. Moe described the situation “chaos” knock on door the Schreiber’s “basically barrage profanities” Moe. Moe arrived was Officer Officer at and threats between Schreiber his shortly being residence after Sehreiber’s Tr. at 17-18. daughter. Prelim. Upon dispatched the location. yell also at Offi- Schreiber continued arrival, screaming Officer Moe heard Moe, Nazi” calling cer him a “Neo “I coming from the residence: could He Dep. at 31. also “pig.” Schreiber screaming pro- hear a male voice inside continued to demand that Officer Moe De- person.” at an fanities unknown home a search war- leave his or obtain Preliminary Examina- cember light In (“Prelim.Tr.”). Schreiber Dep. rant. Transcript tion at 7-8 situation, requested Moe im- apart- Officer Officer Moe knocked on When offi- door, up back from an additional mediate young boy, ment James Schreib- Jr., cer. Prelim. Tr. at 17. opened the When the door er door. point during early stages
At some at him from the apartment. inside situation, Moe Dep. Schreiber, Officer talked Schreiber at 34-35. on the Prelim. Tr. at telephone. however, Musto concedes that he did not see 30-31, Dep. at Dep. Schreiber Musto Moe Officer lock the door. Schreiber Moe at 12-13. Officer claims Nevertheless, Dep. 37. Schreiber be- him phone Schreiber’s wife handed incensed, came profanity, used more and indicated that Musto would explain open demanded Officer Moe Prelim. Tr. situation. Dep. door. Schreiber at 36. When Offi- dispute does that Officer door, cer Moe did not open the Schreib- spoke Moe with Musto on the telephone. door, er off the ripped grabbed screen *4 Musto identified herself and explained lawn the glass chair and struck door she that was concerned Sarah’s safe- times, three door causing the to com- 13-14, Musto Tr. ty. Dep. at Prelim. pletely shatter the apartment. into suggesting at 18. After that Sarah Dep. at Schreiber 36. shelter, taken to a teen Musto the ended tell parties slightly different ver- Dep. call with Moe. phone Officer Musto sions the ensuing events. Schreiber Upon 13. at the arrival Officer Mat- acknowledges that he was “out of con- scene, thew Veldman on the Officer Moe sliding trol” when he broke glass the attempted to run file check on Schreib- door, however, he that contends he and er asked Schreiber’s wife if had she into the apartment walked and was im- protection order him. personal against mediately grabbed Officer Moe and time, During this to Schreiber continued glass-covered thrown to the floor. at Officer yell Moe demand that he Dep. 42-43. Schreiber at Schreiber Dep. 31-32, at leave. Schreiber not recall if anything could he said as he Prelim. Tr. at 21-22. also Schreiber through walked the door. Schreiber if living asked he could leave the to room Dep. 44. at Schreiber also denies that the use bathroom. Schreiber at Dep. he Moe during tried strike Officer the 34. Officer refused Moe to allow at Dep. incident. Schreiber 47. He also the living Schreiber leave room. claims that when he face landed down on Prelim. Tr. Dep. at Schreiber at 34. floor, him, the Officer on top Moe was Schreiber, According to Officer Moe said punched rubbed his face in the glass he would not allow Schreiber side, the him in face and at least twenty might leave because he have a gun at Dep. times. Schreiber 46-47. Al- room. 34. Dep. another Schreiber at though Schreiber denies he at- Schreiber also that Officer Moe asserts Moe, tempted to strike he Officer con- him pushed back onto couch when cedes that while the men were on two attempted up he to stand and leave. he ground continued use profanity Moe Although Officer would not allow Officer Dep. insult Moe. Schreiber go another Schreiber room in go did on a apartment, Schreiber outside Moe Officer asserts that when second-story balcony to relieve himself. Schreiber broke the door Dep. through he 34-35. When immediately Officer charged Moe. apartment Schreiber exited the onto balcony, Tr. at sliding Officer Moe closed the Prelim. 26. Officer Moe main- glass door behind him. Prelim. Tr. at tains that Schreiber him at struck least that, eight during 25. Schreiber maintains that Officer seven or times and Moe locked the door and was laughing struggle, brought Schreiber to the offense court to a misdemeanor Prelim. Tr. state glass.
ground amidst resist, assault, wound, attempting Although Officer Moe denies at 26-27. obstruct, endanger police oppose, face into the pushed Schreiber’s that he in violation of COMP. officer MICH. he hit concede that glass, he does 750.81d(l), §§ 750.92. Thereaf- LAWS Prelim. at least six times. Sehreiber ter, present Sehreiber filed the lawsuit these at 27. He maintains Tr. alleged constitu- seeking damages him- necessary to defend were punches violations. tional Prelim. attack. self from Schreiber’s two men were 254-61. Tr. at While J.A. at ground, Officer Veld- struggling on 4, 2005, February filed his On Sehreiber chil- two of Schreiber’s prevented man Officer Complaint, alleging that Defendant Moe’s jumping from on Officer dren Fourth Amendment Moe violated his Moe Tr. at 28. Officer back. Prelim. home, rights by unlawfully entering struggled that he claims also him, using excessive force to arresting two ground for about Sehreiber on also al- effectuate the arrest. Sehreiber able to control minutes before City Rapids of Grand leged that Defendant Tr. apply handcuffs. Prelim. him and rights violated his constitutional main- *5 at 28. alleged taining policy that caused the handcuffed, was Offi-
After Sehreiber Fourth Amendment violations.1 After 19, 2005, car. police him to his they May cer Moe escorted served on Defen- were 12, route, at Offi- July Sehreiber cursed filed an While en dants Answer Manage- in his direction. The district court issued a Case spit cer Moe and blood 11, 2005, August Officer Moe ment Order on which set Sehreiber claims that when car, the date of the Final Pre-trial Conference police him in the he kicked placed October, 3, 2006 at 8:30 a.m. Case times in the Sehreiber five ribs. Management required par- Order also 50. Officer Moe de- Dep. Sehreiber jointly prepare Proposed ties to and file a in police nies this accusation. While days three business Final Pre-trial Order car, to scream and Sehreiber continued prior to the conference. Officer Moe spit blood. He also told Dep. at 52. that he had AIDS. Sehreiber 799, 10, 2006, F.Supp.2d August On AIDS, but, by his not have Sehreiber did opinion court issued an and the district admission, lied to Officer Moe own granting denying part in in part order Dep. “piss him off.” Sehreiber summary judg- motion for Defendants’ hospital taken to a local Sehreiber was granted ment. The district court sum- facial he was treated for three where mary judgment to Defendants on Schreib- arrest, as well as bruises swell- lacerations entry, illegal false er’s warrantless eye. Although he com- ing around each imprisonment, and excessive force in effec- pain, personnel claims, of rib medical plained finding them tuating the arrest According did not discover a fracture. by Humphrey, barred Heck v. 512 U.S. Moe, 2364, transport- 477, he was to Officer while 114 S.Ct. 129 L.Ed.2d (1994), alternatively, finding Officer hospital, to the Sehreiber ing Sehreiber him, qualified immunity. The to kill have someone Moe entitled to threatened court, however, him, summary him. On Decem- denied injure or sue else 2003, to Defendants on Schreiber’s 16, judgment no contest plead ber Sehreiber us, however, City. grant summary judgment of to the before as 1. This claim is not appealed court's Sehreiber has requirements Officer him five with procedural claim that Moe kicked for abuse of and in times while was handcuffed cus- v. City discretion. Carter Memphis, of car, tody police finding alleged Cir.1980) 159, curiam). (per Heck excessive force not barred and An of abuse discretion exists when the qualified denying immunity Officer Moe district court’s action leaves us with “a Thus, alleged for his conduct. Schreiber’s definite and firm conviction that the trial claim that Officer Moe used excessive court committed a clear error judg- against force him subdued after was Sch, Stough Mayville ment.” Cmty. custody surviving sole 612, complaint. count The Final Pre-trial Conference was held B. The district court abused its dis- a.m., on October at 8:30 as sched- cretion when it dismissed Management uled the Case Order. Schreiber’s action separately prepared Defendants’ counsel and e-filed it with pre-trial memorandum case, In the present neither the 28, 2006, September the district court on transcript district court’s nor order days three before the Final Pre- scheduled the pre-trial spe conference indicates the Conference, required. trial cific procedure rule federal civil counsel, however, pro- did not submit authority under which the district court pre-trial posed final order. Defen- While 16(f) dismissed the case. Rule timely the Fed appeared dants’ counsel for the conference, Schreiber’s counsel failed to eral Rules of provides Civil Procedure transcript attend. The indicates that the sanctions in the event that a fails to *6 to attempted district court’s staff contact conference, appear pretrial at a including by phone, Schreiber’s counsel but received the involuntary sanction of dismissal. See no waiting answer. After for Schreiber’s 16(f), 37(b)(2)(A)(v). In addi Fed.R.CivP. minutes, thirty approximately counsel for 41(b) tion, Rule of the Federal Rules of the district court inquired whether defense Civil Procedure allows for for dismissal make; any counsel had motion to Defen- to prosecute comply failure or failure dants moved to dismiss Schreiber’s re- with court orders. maining claim. The district court noted Schreiber’s the pre- counsel’s absence at recognized we While have that district trial conference pro- and failure to file a possess courts broad discretion to sanction posed pretrial the order ordered case parties for failing comply procedur- appear[ed] dismissed because “it Plaintiff Bunch, al v. requirements, Carver 946 Plaintiffs counsel has abandoned and/or Cir.1991), F.2d 453 we have also said case.” pros- cautioned that dismissal for failure to timely appealed “is a ecute harsh sanction which the court disposing court’s final order all of claims. only in should order extreme situations showing delay a ‘clear record of or contu- ANALYSIS plaintiff,’” macious conduct the id. at I. The district court’s dismissal of 161). Carter, (quoting 454 636 F.2d at remaining Schreiber’s claim of ex- showing, “Absent this an order of dismiss- cessive force discretion; ... al is an abuse of dismissal A. Standard review only if appropriate attorney’s the dilato- ry prosecute actions amounted to failure to a We review district court’s dismissal of for party’s comply protect an action a failure and no alternative sanction would are reviewing As we district integrity pre-trial procedures.” Carter, for an decision to dismiss abuse discre- F.2d tion, only we consider that informa- must fail- contemplating dismissal When court had it at the tion before prosecute, a court must consider: ure to time it ordered dismissal. While (1) coop- party’s whether the failure appellant does that an require Court faith, willfulness, or erate is bad due 60(b) successfully a Rule motion to file fault; (2) adversary whether Carter, dismissal, an appeal order of see of the prejudiced by dilatory conduct appellant an would (3) party; whether dismissed wise to do so as we cannot consider cooperate that failure to was warned time on appeal.3 excuse the first (4) dismissal; whether could lead to or imposed less sanctions were to the facts Applying drastic the four elements or- case, before dismissal was present considered of the we are convinced that dered. the district court abused its discretion First, dismissing Schreiber’s case. Tetro, Stough, (quoting F.3d at 992 not find Schreiber’s district court did 615); also Regional F.3d see Refuse willfully counsel acted in bad faith Co., Sys., Inc. Inland Reclamation 150, 153-55 (6th Cir.1988). failing pretrial attend the conference failing or- proposed pretrial to file case, In the present the district court In of their to dismiss support der. motion any concerning analysis did undertake conference, pretrial at the ar- Defendants deficiencies; rath- procedural court, to the not the gued “This is er, court noted Schreiber’s time failed [Schreiber’s first has counsel] at the confer- pretrial counsel’s absence something just to do on time.... It’s pretrial ence and to file a proposed failure long pattern trying get hold be- order ordered case dismissed unsuccessfully....” at 307. De- [him] J.A. “it Plain- cause Plaintiff appealed] and/or fendants mentioned specifically tiffs case.” In counsel has abandoned said Schreiber’s counsel had not contacted appeal, his brief on Schreiber’s counsel joint them to the Rule state- prepare alleges proposed that he failed to file a *7 ment, required by as he the to do and attend pre-trial order failed to the Order, Management and he did not pre-trial final conference to a calen- Case due file his mediation brief on time. Id. On daring note, though, error.2 We that appeal, argue the district not offer excuse to Defendants that did the supported by long “a district court and did to set aside court’s dismissal is seek 60(b) order of a by way pattern delay, the Rule motion. and consistent inatten- reply, alleges Judge 2. In Defendants' We see counsel that the wisdom of Joiner's dissent Carter, suggesting filing the in that of a Rule attempted her staff to contact Schreiber’s 60(b) requirement motion should be a to a by phone by prior counsel e-mail to the dismissal, involuntary appeal successful of an no avail. conference to Defendants’ counsel Joiner, (J. dissenting). id. at 162 Such a see if also contends that Schreiber’s counsel had requirement ensure would that simply calendar the failed to the date of final opportunity court has the the reconsider conference, pre-trial alleges, then the light any decision to dismiss in excuse pre-trial electronic service of a memorandum might dilatory counsel have had for con- by put solely filed Defendants have him would the duct. It also would have indicated to on notice date of that the the conference was willing and district court that counsel was approaching. necessary steps able to the to take his take case to trial.
B19 tion, by reasons, we the and contumacious conduct” these find that district counsel, (1) a of judgment which included: court committed clear error Schreiber’s it voluntary remaining with the disclo- when dismissed the count comply failure Management complaint. the deadlines of Case sure (2) Order; respond to timely failure The dissent’s focus on the fail- plaintiffs Defendants; discovery served requests depose single ure to as a witness factor (3) any discovery failure to sup- to conduct misplaced. supporting the dismissal is As claims; (4) repeated port Schreiber’s opinion the court’s earlier dismiss- pay failure to the case evaluators’ fees. ing discloses, plaintiffs several of claims However, in nothing there is the record to police testimony regarding the officers’ the district court considered reflect the incident prelimi- was available from the incidents, validity, these additional their or nary relating examination to the incident. relevance, if their when or- whether valid (A 260 et Included in seq.) appendix dering Schreiber’s case dismissed. The portions testimony of the are from reasons for dismiss- stated the crimi- preliminary examination of appear al—Schreiber’s failure to counsel’s prosecution of plaintiff nal in the state the pretrial conference and failure to court. proposed pretrial coupled file a order — Nor do the authorities cited dis presented by Defendants with reasons In support proposition. sent its v.Wu their motion dismiss—counsel’s un- Inc., Wang, T.W. 420 F.3d timely filing Report of his Rule 16 Status Cir.2005), we reversed the district court’s late) (three days Evaluation Case case plaintiffs dismissal where dis (thirteen late) days Brief rise to —do lawyer court to warn plaintiffs trict failed the level of contumacious conduct. Sec- plaintiffs that he faced dismissal of case. ond, although the district court noted for quoted language of a part quote record counsel Defendants had Educ., from Mulbah v. Detroit Bd. a half waited hour Schreiber’s counsel F.3d 586 in Again, Schafer conference, appear pretrial final City Dep’t, Police of Defiance there is no evidence Defendants suf- (6th Cir.2008), given had court any prejudice because of fered Schreiber’s warning to of the In plaintiffs. one two Third, conduct. dilatory counsel’s dis- other, the case of the he knew his case had provide trict court did not Schreiber with without prejudice been dismissed any warning that failure to attend the if he prejudice would dismissed did pretrial pro- conference or to months, submit not refile six which had not. pretrial posed order could result dis- any Nor had he made effort to refile after *8 Finally, missal. the district court did not period expired. (Although had incarcerated, explained consider a less drastic sanction before it was he had not why dismissed. We have ordered case not have made effort to could some so.) Also, found that “in the absence of notice that do in contrast to the dismissal here, contemplated appealed judge, dismissal is a district court from the district in dismissal, his order of impose penalty should short of dismissal indicated factors which he relied. engaged upon unless the derelict has ” “bad faith or contumacious conduct.” grant partial II. The court’s of district Callwood, 1254, 844 1256 Harris F.2d summary judgment us, In the case before finding jurisdiction notice there was no such and no of We decline to exercise faith our rever- bad or contumacious conduct. For over Schreiber’s claims as
320 (ci- Id. discretionary judgment is based.” of dismissal court’s order
sal of the district omitted). case, tation making reinstates instantly of grant par- the district appeal of ordinarily require a district Although we impermissible an summary judgment tial dilatory specific findings make of court to See interlocutory order. of an appeal dismissing conduct when or contumacious 556, 557 Carp., v. Eaton Hughley yet have prosecute, for failure to we a case Cir.1978) (6th (“[S]ufferance of a dismissal findings mandate reversal absent those is not to be prejudice without of a cause itself where the record demonstrates reaching issues employed as an avenue delay impudent con pattern of chronic interlocutory ap- subject which are Becton v. Boatmen’s Bank duct. See of peal right.”). Cir.1988) as of (6th 152, F.2d 152 Memphis, prop
(unpublished) (holding district court complaint despite erly plaintiffs dismissed CONCLUSION having findings regarding made of fact reasons, we For the aforementioned conduct). Further, delay or contumacious the district court’s dismissal REVERSE majority’s with the respectfully disagree I force remaining excessive inqui position our abuse-of-discretion claim, the case for further and REMAND ry specific findings limited to the articu opinion. with this proceedings consistent lated the district court at the time Our review is not so limited. dismissal. GRIFFIN, dissenting. Judge, Circuit every to recite The district court’s failure grounds I dissent on respectfully example plaintiffs impudent counsel’s court did not abuse its court, un compel conduct4 should not dismissing plaintiffs com- discretion facts, that the trial der these to conclude underlying in the case plaint. history committed a clear error of law. court coun- plaintiffs a clear record of presents record, wit, Here, litigation conduct, I conclude is dilatory sel’s which alone, replete entries are with ex docket in- the district court’s sufficient to affirm amples plaintiffs counsel’s chronic de voluntary dismissal. “may lay. It is law that we well-settled supported by any grounds affirm court’s or- should reverse We if different from the reasons record even only if we have a definite der of dismissal Clem, court.” Dixon v. of the district trial court firm conviction that Cir.2007) (6th 665, (citing Aber F.3d judgment. error of committed a clear Stores, Eagle & Fitch Inc. v. Am. crombie Worldwide, Patel, Inc. v. Days Inns (6th Inc., 280 F.3d Outfitters, Cir.2006) (citation omit- Cir.2002)). ted). example “A clear of an abuse notes, ap- fails majority properly the trial court As the we discretion exists where test, which I refer to legal ply standard or a four-factor will applicable to consider the test, stringently more the exercise of its as the Mulbah5 upon the facts which test, first articulat court referred this four-factor 4. The record reveals that *9 Sys. Regional Inc. Inland Rec granted motion for dismissal ed in v. defendant's Refuse Co., 150, (6th Cir. drafted the dismissal or- 842 F.2d 155 from the bench and lamation 1988) by waiting plaintiff's (superseded part to in for counsel der while Fed.R.Civ.P. test, 37(c)(1)), hearing. prongs appear pretrial as the Mulbah or the as at the factors, unpublished a recent deci Mulbah in C.R., Inc., Educ., Muncy Fed.Appx. v. G. 110 261 F.3d sion. v. Detroit Bd. 5. Mulbah of 552, (6th Cir.2004) 586, (6th Cir.2001). (unpublished). recently n. 4 We have 556 589
321 notify rationale dis- counsel’s failure to plaintiffs cases where the court’s for was inadvertent); McLendon, Rush 21 solely plaintiffs on the v. F.3d missal is based (6th Cir.1994) 428, conduct, (affirming 428 dismissal attorney’s as it is here. Harmon Inc., 364, plaintiffs complaint plaintiff of 367 where Transp., v. CSX F.3d (6th Cir.1997).6 Callwood, appear day failed to at the first trial Harris v. we In explanation, reversing with no but district re- acknowledged frequently “we [] that court’s of motion for denial reconsideration dismissing verse district courts for [ ] where trial court did not consider properly cases because failed to or litigants appear plaintiffs explanation). comply orders pretrial when par- not put did the derelict courts Here, supports the record ties on notice further noncompliance that involuntary court’s without prior dismissal would result in dismissal.” notice intent to of its dismiss because of noted, We also how- frequency degree plaintiffs ever, that “in the absence of notice faith, counsel’s bad as coun- evidenced contemplated, a court dismissal is dilatory sel’s tactics to properly and failure impose should short penalty of dismissal any substantiate one of civil plaintiffs party unless the has in engaged derelict rights claims. Federal Rule of Civil Pro- ” Id. ‘bad faith or contumacious conduct.’ 16(f) permits involuntary cedure dismissal added). (emphasis As the court Mulbah under Rule of Federal Civil Procedure stated, may itself “a case be dismissed 37(b)(2)(A)(v) party attorney when a or its a district court where there a clear is scheduling or appear fails to delay record of or contumacious conduct pretrial conference. See Fed.R.CivP. Mulbah, part plaintiff.” on the 16(f)(1)(A). Federal Rule of Civil Proce- F.3d at 591. 41(b) permits dure the court to involuntari- ly an action if a fails plaintiff dismiss
Thus, in- past suggest our decisions an prosecute his case or to with court comply verse between the degree correlation provides ample The record evi- orders. faith, de- offending party’s bad willful plaintiffs dence of counsel’s violation of or need lay, contumacious conduct and the these rules. provide for a district court to notice of its a plaintiffs
intent
complaint.
dismiss
example, plaintiff
For
did not serve de-
Harris,
(extracting
See
or
interrogatories
requests
fendants with
notice,
principle absence of
production,
waited two-and-a-half
penalty
court
dis-
impose
should
short of
interrogato-
months
answer defendants’
ries,
extension,
missal unless
has
in bad
engaged
a one-month
requested
conduct); Bishop
faith or
contumacious
comply
agreed-to
then
with the
failed
Cross,
Cir.1986) (revers-
322
factor,
in medical fees.
In addi-
The last Mulbah
which asks
proximately $400
tion,
fees two
court could have im-
plaintiff paid case evaluation
whether
late,
sanction,
only when the court set a
paid
posed
months
a less drastic
is also satis-
deadline,
day
Here,
until the
final
and waited
elect-
although
fied.
the trial court
sanction,
pay
the fee. Plaintiffs
impose
the deadline
a lesser
we
ed not
cooperate
failed to
defen-
counsel also
“have never held that a district court is
compiling
when
the Fed.R.Civ.P.
dants
power
complaint,
without
dismiss
16(f) report and failed to file Fed.R.Civ.P.
sanction,
only
solely
the first and
on the
26(a)(1) disclosures, despite a court order
plaintiffs
neglect.”
of the
counsel’s
basis
requiring him to do so. Plaintiffs counsel
Inc.,
Transp.,
Harmon v. CSX
110 F.3d
in providing
was also several months late
(6th Cir.1997) (citations omitted).
364, voluntary disclosure documents. Most
“[I]ndeed, any such rule would conflict
egregious
plaintiffs
was
counsel’s failure with Link and ... Federal Rule of Civil
case,
depose
single
witness
37(b)(2).
Procedure
We are loathe to re-
including
police
plaintiff
officer whom
quire
litany
the district court to incant a
using
only
accused of
excessive force—the
....
the available lesser sanctions
we
remaining claim at the time of dismissal.
not assume that lesser sanctions
[should]
On the date defense counsel moved the
simply
were
considered
because their
plaintiffs complaint, plain-
court to dismiss
consideration is not articulated.” Har-
required
tiffs counsel had not filed the
(internal
mon,
With reasons, respectfully For these I dissent. tor, defendant, prejudice to the we have I affirm the of the would order prejudiced by plain- held that a is court.
tiffs conduct where the defendant “wasted
time, money, pursuit coop- and effort in plaintiff legally
eration which the obli-
gated provide.” City Schafer of Defi- Dep’t, ance Police
Cir.2008) omitted). (citations Here, plain- delay
tiffs chronic counsel’s record of appear,
failures to at both the scheduled appointments,
medical as well as conference,
pretrial satisfy sufficient prejudice prong. See id. dismissal, plaintiff's proffer, plaintiff 7. Defendants also does was familiar with coun- court, deny, strategic reputation delay. that the trial at the time of sel’s