Stephanie Trakas v. Quality Brands, Inc

it, plausible proffered had meet WRIGHT, SCALIA, Before MIKVA and excuses); F.2d Ramsay Bailey, v. Judges. Circuit (dismissal Cir.1976) not an abuse pending action had discretion where by Circuit Opinion for the Court filed years, already three for more than Judge MIKVA. prosecution been dismissed want Judge filed Dissenting opinion Circuit reinstated, plaintiff had then unreason SCALIA. delayed discovery order, ably replying MIKVA, Judge: extensions, had received several time motions, interposed had failed to frivolous Stephanie appeals from the dis- Trakas reply promising after file a brief prej- court’s dismissal her case with trict delivery, ignored imminent and had re its prosecution. Trakas had udice for want warnings). As noted peated we have be Brands, Inc., Quality for breach of sued fore, see, Pearson, e.g., Butler for sex-based discrimination contract and (D.C.Cir.1980); § Jackson Wash VII, 42 2000e of Title U.S.C. et violation Co., Monthly ington Act, Equal Pay seq. and the U.S.C. progeny Link autho § special circum- 206. We find rize where record reveals “a dismissal of this stances neglect.” protracted course by denying her discretion prejudice. suit with dismissing partakes of this law circuit for further therefore and remand reverse is an general view ex proceedings. may tremely sanction be re harsh 41(b), Camps when discretion abused. a defendant versed Under Fed.R.Civ.P. Telephone P v. & involuntary dismissal for C move for (D.C.Cir.1981). system our 123-24 Since prosecute “failure of disposition favors the of cases on the mer- issue require which will a trial for resolu- its, dismissal is a sanction of last resort to tion. applied only after less dire alternatives The record shows that Trakas lost her explored job August success. See instituted adminis- id.; Jackson, 569 F.2d at 123. trative September 8, 1982, action on re- “right

ceived a to sue” letter from the appropriate federal agency Automated Inc. v. Wood in the late sum- cock, mer of and 659 F.2d 1168 relied forthwith instituted the present dissent, August 31, action on heavily by so is not to the 1983. At a November Woodcock, call, contrary. In status we the dis the trial date was set for March missal of a count of a counterclaim where litigant’s the dismissal resulted from the Plaintiff remained unemployed after her “prolonged period failure” —over a of six firing. In June she moved to St. months—to with a clear instruction Louis, Missouri, husband, where her pleadings. of the trial court to amend his attorney, had been offered job. The litigant “ample opportunity” plaintiff’s had had husband was gainfully employed comply, November, he had been instructed and warned when the trial date was set. so, necessary steps to do and the In January job. he lost his “fully” spouses within his control. With both work, We found that out of getting the money apart he had advanced no to travel to Washington excuse from inad for the trial oversight or presented spe unexpectedly vertence and problem. became a Trakas might planned cial claims she explain circumstances that requisite borrow the neglect “conspicuous disregard” parents funds from her but that at the last minute the Compliance, pointed court’s directive. did not we the loan. out, trial, On the weekend before relatively simple. would have been We Trakas called her observed, moreover, attorney say solely that due although the dis to lack of funds get she could not trial, Washington per missal occurred two weeks before but that she pursue still desired to mitting litigant her comply at that date claim. She added that her husband had would have necessitated rescheduling a trial accepted employment waiter, as a already postponed which had been once be expected to have the necessary money fore. Consideration of the in the record within a month. present case shows that the conduct of the Trakas’ reasonably immediately was not such as to war op- notified posing counsel rant the sanction of dismissal. district court. The timing was such that both had less than formerly Trakas liquor saleswom- days two notice of Trakas’ desire for a employ and, an in the of the defendant was, however, continuance. There suffi- allegedly, woman in the restaurant warning cient advance for the defendant to company’s division of the sales force. On call off its judge witnesses and for the 1, 1982, March manag- a new division sales jurors advise the stay home. The ex- appointed. Trakas, er According pense appearance of an supervisor publicly new stated that one spared also have judge been had the ruled goals of his develop was to an all-male on motion, written but the sales force. The defendant claims that judge requested appearance counsels’ Trakas was dismissed for failure to meet court, the scheduled trial date. In she de- quotas. her sales Trakas describes that continuance, nied the thereby rendering explanation pretext, asserting as a that she prosecution impossible, of the case had territory increased sales in her every then dismissed for prosecution. want of month and employees that male who failed obviously do not condone quotas to meet waiting were not dismissed. long bring so diffi- financial say Suffice it to many there are facts at culties to the attention of counsel and of Nor, above, yond her as we error did such control. noted court, not cause faith, is there indication of bad to warrant the harsh sanc- consequences as intent, neglect part on the protracted It uncontroverted tion of dismissal. sum, plaintiff. do not question Tra- In we believe up until the incident single claim that the of misconduct in this diligently act pursued lcas had prior justify case was action of No continuances sufficient expeditiously. holding, empha- we delay sort court. so sought and (in cognizant need part fully of the defendant size manage interrogatories). The record of trial their calendars so courts answering expeditiously as to dispense justice of bad no evidence whatsoever discloses misconduct, efficiently As we held in possible. or tactical de- faith, deliberate Camps, 692 F.2d at “a lay. act of misconduct seldom ever can points suggest- at several dismissal,” nothing in there is the facts is a plaintiffs husband ed that because place among this case that would bar, necessarily she must member exceptions. accordingly reverse the We disposal. find noth- funds at We judgment the case to and remand the dis- supports such an ing record which in the trict court. attorney attested Plaintiffs inference. out plaintiffs husband had been court that It is so ordered. finally months and had for two work SCALIA, Judge, dissenting: waiter, couple agreed as a that the to work in order to meet their possessions

had sold upon intrudes today’s think that, to of his living expenses, and the best belongs judges to trial discretion that couple “living on a knowledge, the expeditious that is for the fair and essential “very string” and destitute.” Coun- shoe conduct of their business. supported later sel’s assertions were trial It was not unreasonable from the herself. sworn affidavit regarding judge skeptical the utter disputed None of the assertions was ever inability plaintiff, formerly em- of this by any the defendant contradicted saleswoman, ployed married to an as agree must record evidence. attorney, proceeding pro and not se but although the plaintiff’s law represented private attorney, by a invariably it is profession, not illustrious trip scrape funds for to Wash- up the one, and, profitable to the that the extent ington As far from Louis. as St. contrary judge her decision on a trial based discloses, plaintiff did record not even assumption, she erred. unsubstantiated conveyance means of plebian consider so placed also judge The trial considerable bus, by plane planned as to come or not unwillingness plaintiff’s on the reliance Assuming, that it not at all. voluntarily. to assume costs counsel present plaintiff’s at burden situation, light plaintiff’s financial hearing of impecuni- demonstration some perfect- counsel's reluctance was than the second- ousness more substantial ly judge appar- did the justified. Nor trial hand and undocumented assurances other ently consider alternative sanc- counsel; assuming, and therefore with the than also be less drastic tions majority, the extent that the trial that “to complete dismissal. judge her decision unsubstan- based [an] assumption ability], tiated financial misstep first and Plaintiff’s [of 188; erred,” that would still be request for a at Maj. last-minute making her, justification present; no for our the con- her to allow trary assumption, on no proceed. Defendant has based more case could self-serving mo- absolutely no refute affidavit filed on evidence to introduced appears tion for That impropriety claim that this oc- reconsideration. be, however, through precisely what largely circumstances be- curred does, concluding misconduct, “the act of merely rather than a refus- misconduct this case was sufficient extraordinary al to take action to [not] save the court,” trial action and plaintiff from her folly own visit nothing that “there is in the facts defendant). effects It is no small support Maj. case” that would matter to have jury prepared op. at 188. Even one believes that an trial, opposing ready counsel impecunious plaintiffs failure to rea- preparation of his case witness- precautions prevent impecu- sonable es, and then to advise the day court the disrupting niousness from a scheduled trial (and opposing one before justi- at the enough eleventh hour is not day that) that the cannot action, fy the District Court’s the remand proceed. Mrs. Whatever Trakas’s financial here should the very permit least been, condition there was no court to inquiry conduct further into the adequate excuse for this behavior. The impecuniousness. fact of As I read the majority suggests a state of facts more opinion, that course is foreclosed. favorable supports by say- than the record fundamentally, however, More planned that “Trakas claims she proper seems to me setting basis for requisite borrow the par- funds from her aside the District action all. Court’s ents but that at the last parents minute the has, shall discuss the as the the loan.” did Maj. op. at 187. though reviewing we were appears, As far failed to (with in dismissing preju- through come “at the last minute” not be- dice) I must prelimi- for misconduct. note cause went back on an earlier commit- narily, actually that what is in- ment, but because Mrs. Trakas never both- is volved a matter on which trial the to ered ask them for the funds until “the judge’s discretion is more expansive even last minute.” Even her affidavit filed on necessarily and her decision even more sus- motion for reconsideration asserts no more Though tained. the in final action the case optimistic she than that was took the form of a the essence of money, would lend the to have appellant’s complaint judge’s is the trial optimism that shattered when refused grant to day continuance the refusal Sunday the before trial. Such a cavalier court, jury op- The trial. the before is, litigation attitude towards the posing ready proceed; counsel were basis, grave and inexcusable. counsel said he that could not R.R., Link v. Wabash so, requested and would not do a con- (1962), the Su argues us, effect, He tinuance. before in preme upheld Court dismissal for an attor that he was entitled to the continuance ney’s failure to at pretrial confer though unwilling even was he to stand While, notes, majority ence. as the good the impose upon costs that would aggravating circumstances in that the Especially other side. since the last- do enabling case that not exist disruptive) minute thus need for the petitioner Court to infer “that was attributable to deliberately proceeding Act of God in dilatory but to own fault fash ion,” in making arrangements 1390; her financial id. at 82 S.Ct. at there are trip earlier, Washington much here in my other factors that view more reversing judge’s grant the trial refusal to up Here, than make for that difference. the continuance absent of payment costs is there, unlike itself was trial rather awe-inspiring. by None the cases cited merely pretrial than conference that was involved such a matter of disrupted. Here, there, unlike the mis grace, and I reversing am aware of no case being deeds of the were not visit remotely the trial sim- upon client, ed but the was ilar context. suffering consequences own fail assume, however, give prosecution shall that ure of her case the dealing with act required. an affirmative of dismissal important attention it And most 1981), there, dismissal of a counter- all, here, the sanction of which unlike a court failing claim for with imposed only plain dismissal was after join a There no indica- party. order to rejected the alternative tiffs intent, tion of bad faith or the other side’s costs paying

sanction of 1169; which, “oversight,” id. delay merely as I attributable *— lawyer than below, fault that of the rather alterna shall discuss trial litigant; though ef would have been would tive permit rescheduled order to be fective. defense, party prepare the added Camps P dictum in v. C & expansive (two time weeks from there was least (D.C.Cir. Co., Telephone of the point at which the learned majority, 1981), to the relied defect) replace another sel- single act of misconduct effect “a docket; and we ac- case on the court’s is plainly dismissal” if dom ever knowledged that “a less drastic sanction” “if insofar as ever” exaggeration held, possible, id. (Is it conceivable that no concerned. nonetheless, the trial court had not sanction?) And act can ever warrant the discretion it must have “[t]o very part is neither informa- “seldom” prevent litigation delay and of scarce waste applicable here. must notably One tive nor resources,” judicial id. party litigation hope it is seldom day wait until the faults trial inexcusably will consider “apparently it must her failure the court that advise [to] [i.e., other alternative sanctions other than for a reason could have rescheduled noth- assessment of that would also of weeks before. find been aware costs] dismissal,” Maj. complete Camps the two less drastic ing in the cited at 188. That criticism this court would be other decisions more Pearson, joined appropriate with some F.2d 526 it were majority —Butler sanc suggestion of what other alternative Washington and Jackson (D.C.Cir.1977)— compen tion be effective—both to Monthly 569 F.2d 119 other for the costs inflicted incompatible the action District sate the side plaintiff’s conduct and to deter such None of them involved mis- Court here. disrup- and in the future. See Locascio v. equivalently grievous conduct conduct (7th 497, tive, Teletype Corp., misconduct 694 F.2d Cir. all involved , 1982) denied, U.S. party than the herself —ex- cert. rather (1983) (dismissal pro liti- for cept which involved se Camps, prosecute proper to “lesser gant’s “10 to 30 minutes late failure when appearance call,” either not or will not for 692 F.2d at 122. sanctions status What [a] Inc., effective”); West, incompatible, strikingly I do Anderson Air find (9th Cir.1976)(same). hold- 542 F.2d majority is the of the Cf. (D.C.Cir. Wilson, court in Hobson this Automated (D.C.Cir. 1984) (refusal because, Woodcock, proper to dismiss Inc. v. 659 F.2d suffering temporary rather to be from unem- *At the time of the counsel asserted agree authority ployment that he from his client to her had no and her husband. thought, such if it be presumed permanent to a lesser sanction. Even regard if for this that he have discussed should not indigency majority dis- is-what moves the to advance, possibility in he obvious with his client rejection regard the offer and of the alternate did not the court time to conduct such ask for sanction, frightful it me to seems to establish Moreover, do so consultation. he had time to Surely proposition of it be that a law. cannot filing his motion for reconsideration permanently indigent plaintiff with unmeri- later; also dismissal a month-and-a-half that unjustified impose expenses case torious can agree did not to the lesser sanction. Plaintiffs impunity being upon the other im- side — Reconsideration, Motion for Tralcas v. Interna- (out indigency) for from mune consideration Corp., tional Distributor (D.D.C. Civ. No. 83-2562 costs, an assessment of and immune from 1984). Apr. dismissal as well. regard plaintiff It be noted should in this that purport permanently indigent, to be did but alia, saying “the inter alternative to dismissal basis that Court the District imposed adequately protected impose was in declining that ... to interests”). least, plaintiff I, rejected, at choice she [defendant’s] reject. of none. continues to conceive A dismissal without prejudice leaves plaintiff free to contin- reemphasize that Mrs. Trakas litigation compensating ue punished being impecu- temporary inflicted; defendant for the she has costs niousness, situation, indeed is against no deterrent such miscon- inexplicable for her failure to but take the plaintiff duct in the future is where the steps prevent to necessary that situation positively protracting desirous the litiga- causing disruption from serious of the trial Requiring compensate tion. to process imposing unnecessary ex- recovery the defendant out of her consti- penses upon the defendant. Had ad- she tutes no sanction whatever if the suit inability vised the court and counsel of her proves only wrongfully delayed to be not advance; decent time in or had unmeritorious, in addition so necessary plans ap- even made recovery is from which the costs can be pear (for example, by obtaining par- It deducted. also ais toothless deterrent agreement funds), ents’ her the against by pre- similar action in the future plans minute; awry went which last cisely plaintiffs likely those who are most it would be a different matter. But here engage i.e., in those whose cases are intelligent we have a case of an woman it— so weak that do not fear a threat of seriously obligation who was remiss in her recovery, reduction of their and who are rudimentary steps most using litigation protraction of liti- prosecution litigation, and who re- gation It to extort a settlement. is inter- good fused stand costs which her esting utterly incomprehensible) that wrongfully imposed action on the other the sanction of which the costs that, It side. well be rejects precisely here excessive belongs vested the discretion that (for see, sanction ordered this court judge, the district e.g., Hornbuckle v. much lesser misconduct of failure to re- Oil ARCO & Gas discovery requests) spond Cir.1984); in its remand Teletype Corp., Locascio v. Butler, in supra. of the dismissal 636 694 See been more (at F.2d at 531. merciful to the the defendant’s expense); impossible but it seems to me argued Perhaps it could be that the dis- say district action was respect trict erred not considered beyond the bounds the reasonable. failing impose majority i.e.,— It fine (rather “emphasize for the the reasonable sanction costs cognizant fully of the need of dismissal) despite lack manage trial courts to their calendars so as agreement to that alternative. But that justice as dispense expeditiously and ef- appellant complains is not what ficiently possible,” Maj. 188. But requested nor the motion for what she cognition extra-psy- to have Apart from the reconsideration below. effect, then, chic as we said Automated consideration that we should reverse the district unassigned, for an error both invited and dismiss, “power to in situations agreement the fact is that to or absent us, such as the one before must be more alternative, request for that we cannot re- than theoretical.” ally sanction be sure that it is “lesser” The trade-off between than dismissal. I dissent. foregoing pecuniary liability

fixed recovery depends

aof chance for future

largely upon good the of recov- how chance know,

ery is. For all we Mrs. Trakas well advised

instead of costs. is in event no There

Case Details

Case Name: Stephanie Trakas v. Quality Brands, Inc

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 16, 1985

Citation: 759 F.2d 185

Docket Number: 84-5229

Court Abbreviation: D.C. Cir.