Collins v. Hardyman Brief Amicus Curiae

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 80-3419

WILLIAM H. SMITH,
Plaintiff-Appellant,

vs.
CLIFFORD L. ALEXANDER, JR., 
et al.,

Defendants-Appellees.

On Appeal From the United States District Court 
For the Western District of Kentucky 

(Thomas A. Ballantine, Jr., J.)

BRIEF FOR PLAINTIFF-APPELLANT

JACK GREENBERG 
JAMES M. NABRIT, III 
LOWELL JOHNSTON 
PATRICK 0. PATTERSON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

JUANITA LOGAN CHRISTIAN
Suite 490 Hart Block Bldg.
730 West Main Street

’/ Louisville, Kentucky 40202
Attorneys for Plaintiff-Appellant

I



Table of Contents

Page

Table of Authorities ....................  ii
Question Presented ....................  1
Statement of the Case ...................  1
Argument ................................. 5

I. The district court made 
clearly erroneous find­
ings of fact and applied 
incorrect legal standards ....  6

II. The district court abused
its discretion...............  9

Conclusion ............................... 19

x -



Table of Authorities

Cases: ?52S.
Albemarle Paper Co. v. Moody, 422 U.S. 405

(1975) ....................................... 14,15,16

Bernard v. Gulf Oil Co., 596 F.2d 1249 (5th Cir. 
1979), reaff'd en banc, 619 F.2d 459 (1980) 8

Boazman v. Economics Laboratory, Inc., 537 F.2d 
210 (5th Cir. 1976) ......................... 12,15

Bush v. United States Postal Service, 496 F.2d 
42 (4th Cir. 1974) .......................... 12

Christiansburg Garment Co. v. EEOC, 434 U.S.
412 (1978) ................................... 14

Copeland v. Marshall, 23 FEP Cases 967 (D.C. Cir., 
Sept. 2, 1980)(en banc)...................... 14

Davis v. Williams, 588 F.2d 69 (4th Cir. 1978) 12

Edsall v. Penn Central Transportation Co., 479 
F.2d 33 (6th Cir.), cert, denied, 414 U.S.
1040 (1973) .................................. 9,10,11,14,18

Gonzalez v. Firestone Tire and Rubber Co., 610 
F .2d 241 (5th Cir. 1980)..................... 13,15

Hildebrand v. Honeywell, Inc., 622 F.2d 179 (5th 
Cir. 1980) ................................... 13,17

Jackson v. Washington Monthly Co., 569 F.2d 119 
(D.C. Cir. 1977) ............................. 11,13,17

Kelley v. Southern Pacific Co., 419 U.S. 318 
(1974) ....................................... 8

Link v. Wabash R. Co., 370 U.S. 626 (1962) .... 6

McCargo v. Hedrick, 545 F.2d 393 (4th Cir. 1976) 12

Moore v. St. Louis Music Supply Co., 539 F.2d 
1191 (8th Cir. 1976) ........................ 13,16,17,18

Occidental Life Ins. Co. v. EEOC, 432 U.S. 355 
(1977) ....................................... 15,17

- ii -



Page
Pacific Indemnity Co. v. United States, 66 
F.R.D. 493 (E.D.N.C. 1975), aff'd mem.,
532 F.2d 751 (4th Cir. 1976).................

Parker v. Califano, 561 F.2d 320 (D.C. Cir. 1977)
Reizakis v. Loy, 490 F.2d 1132 (4th Cir. 1974)..
Schenck v. Bear, Stearns & Co., 583 F.2d 58

(2d Cir. 1978) .............................
Senter v. General Motors Corp., 532 F.2d 511 

(6th Cir.), cert, denied, 429 U.S. 870 (1976)
Sepia Enterprises, Inc. v. City of Toledo, 462 
F.2d 1315 (6th Cir. 1972) ...................

Wrenn v. American Cast Iron Pipe Co., 575 F.2d 
544 (5th Cir. 1978) ........................

13
14
11,12

13.18 

8

10.18 

13,17

Statutes and Rules:
28 U.S.C. § 1291 ..........................
Title VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. § 2000e et seq.........
Rule 41(b), Fed. R. Civ. P.
Rule 52(a), Fed. R. Civ. P.

2

1,11,14,15-18
5,6,10,13,16,18

7

Other Authorities:
5 Moore's Federal Practice 5 41.11[2] (2d ed.

1979) ...................................
9 Wright & Miller, Federal Practice and
Procedure § 2370 (1971) (Supp. 1979) .....

1 1 1



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

No. 80-3419

WILLIAM H. SMITH,
Plaintiff-Appellant,

vs.
CLIFFORD L. ALEXANDER, JR., 
et al.,

Defendants-Appellees.

On Appeal From the United States District Court 
For the Western District of Kentucky 

(Thomas A. Ballantine, Jr., J.)

BRIEF FOR PLAINTIFF-APPELLANT

Question Presented

Whether the district court made clearly erroneous find­
ings of fact, applied incorrect legal standards, and abused its 
discretion in dismissing plaintiff Smith's civil rights action for 

failure to prosecute.

Statement of the Case

This is an action under Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. § 2000e et seq., to remedy



racial discrimination in employment. The district 

court dismissed the action, with prejudice, for failure 
to prosecute. This Court has jurisdiction of plaintiff's 
appeal pursuant to 28 U.S.C. § 1291.

Plaintiff William H. Smith is a black civilian employee 
of the United States Army Corps of Engineers. He has been

1/
so employed since 1953 (A. 4). On June 30, 1978, his counsel 
filed this action on his behalf, charging the defendants with 
racial discrimination against plaintiff Smith in job classifi­
cation, GS rating, and pay, and in failing or refusing to 
promote him from the position of auditor to the position of 
comptroller (A. 4-5).

Defendants requested and were granted a 45 day exten­
sion of time to answer the complaint, and they filed their 
answer on November 13, 1978 (A. 8-10). On January 18, 1979, 
plaintiff's counsel served interrogatories on defendants 
(A. 1, No.5). After requesting and being granted further 
extensions of time, defendants filed responses to plaintiff's 
interrogatories on May 3, and they filed corrected responses 
on June 6, 1979 (A. 1, Nos. 9, 10, 12).

1/ Plaintiff's counsel in the district court was Juanita 
Logan Christian of Louisville, Kentucky. Attorneys on the 
staff of the NAACP Legal Defense and Educational Fund, Inc., 
in New York City, have joined Ms. Christian as co-counsel 
on the appeal. The Legal Defense Fund attorneys did not 
represent the plaintiff in the district court.

2



Nothing more was filed in the case until February 27, 
1980, when the district judge entered a sua sponte order 
directing the plaintiff to show cause why the action should 
not be dismissed for lack of prosecution (A. 11). Plain­
tiff's counsel responded with an affidavit stating that, due 
both to the heavy demands of other cases on her time and to 
the frequent travel required of plaintiff Smith by his job, 
she had experienced difficulties in contacting her client; 
that her file pertaining to plaintiff Smith's case had been 
inadvertently misfiled; and that, since the entry of the 
show cause order, efforts were being made to expedite further 
discovery (A. 13-14). On March 27, plaintiff's counsel 
proceeded with such discovery by serving supplemental inter­
rogatories on the defendants (A. l,No. 16). The next day, 
counsel for defendants filed an unsworn memorandum arguing 
that the delay in prosecution was unjustified and that 
defendants had been prejudiced because potential witnesses 
had been transferred to different locations in the United 
States and because a key witness now resided in Saudi Arabia 
(A. 18). After plaintiff's counsel filed a reply memorandum 
(A. 22-25), the court entered an order on April 4, 1980, 
determining that the action should not be dismissed. While 
the court characterized counsel's reasons for delay as 
"insubstantial and contradictory," it found that defendants' 
key witness had been in Saudi Arabia since before the action 
was filed, and that defendants had not been prejudiced by the

3



delay (A. 26-27).
Defendants thereafter filed a motion for reconsideration

of the April 4 order and a subsequent affidavit in support of
2/

the motion. Their counsel asserted in the unsworn motion 
that the death in December 1979 of a potential major witness 
(Charles Johnson, defendants' Equal Employment Opportunity 
Officer) would cause them to "experience difficulty" in pursu­
ing their defense (A. 29). Counsel for defendants also con­
tended that the asserted transfer of two other potential wit­
nesses to Illinois and Oklahoma in the fall of 1979 would 
result in "inconvenience" (id.). In the affidavit, Robert
Downs, an employee relations specialist employed by defendants, 
stated that plaintiff Smith had arranged on April 1, 1980, to 
return to Downs' office the following day to inspect some 
documents pertaining to the case, but that plaintiff Smith 
had never appeared to inspect the documents. (A. 36-37).

On April 24, 1980, the district court granted defendants' 
motion for reconsideration and found that defendants'
"principal (and,indeed, indispensable) witness, [their] Equal 
Employment Opportunity Officer, died some 18 months after 
this action was filed and before any discovery was undertaken 
by plaintiff" (A. 39). Concluding that it had now been shown 
that plaintiff's "inordinate delay" had "significantly

2/ Defendants also filed, on April 17, 1980, a motion for 
an extension of time to respond to plaintiffs' supplemental 
interrogatories (A. 1, No.21). The court subsequently 
dismissed the action without ruling on this motion.

4



prejudiced defendant[s]" (A. 40), the court entered an order 
dismissing plaintiff Smith's complaint with prejudice (A. 38).

Counsel for plaintiff then filed a motion for reconsidera­
tion of the court's April 24 order (A. 42-49), together with 
plaintiff Smith's affidavit stating that he had told Robert 
Downs on April 1 that he would attempt to review certain 
documents on April 2; that later in the day on April 1 he 
told Downs that he would be unable to meet with Downs on 
April 2; and that he had never arranged to meet with Downs 
at any specific time to review the documents (A. 50-51). 
Defendants' counsel filed an unsworn response (A. 54-58) 
which did not controvert the facts stated in plaintiff Smith's 
affidavit. After counsel for plaintiff filed a reply 
memorandum (A. 61-64), the court entered an order on May 22, 
1980, denying plaintiff's motion for reconsideration (A. 71). 
This appeal followed.

Argument

THE DISTRICT COURT MADE CLEARLY ERRONEOUS FINDINGS OF FACT, 
APPLIED INCORRECT LEGAL STANDARDS, AND ABUSED ITS DISCRE­
TION IN DISMISSING PLAINTIFF SMITH'S CIVIL RIGHTS ACTION

FOR FAILURE TO PROSECUTE

Plaintiff does not contest the authority of the district 
court to dismiss an action with prejudice because of a party's 
failure to prosecute. Both under Rule 41(b), Fed. R. Civ.

5



P., and in the exercise of its inherent power, a court may- 
use this extreme sanction in appropriate circumstances to 
insure the orderly and expeditious disposition of cases.
Link v. Wabash R. Co., 370 U.S. 626 (1962). The question 
presented by this appeal, therefore, is not whether the district 
court had the power to dismiss this action, but whether on the 
facts of this case an order forever depriving plaintiff Smith 
of his day in court was within the permissible range of the 
court's discretion. Id. at 633. Plaintiff submits that 
the district court in this case made clearly erroneous find­
ings of fact, ignored the controlling principles of law 
established by this and other circuits, and far exceeded the 
bounds of its discretion. Accordingly, the district court’s 
order of dismissal should be reversed, and the case should be 
remanded for a trial on the merits.

I. The District Court Made Clearly Erroneous Findings
of Fact and Applied Incorrect Legal Standards.

It is clear from the district court's memorandum opinion 
of April 24, 1980, that its about-face dismissal of plain­
tiff's action was based primarily or entirely on its find­
ing that defendants' Equal Employment Opportunity Officer 
"died some 18 months after this action was filed and before 
any discovery was undertaken by plaintiff" (A. 39)

3/ Rule 41(b) provides in pertinent part as follows:
"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."

6



(emphasis added). This finding is directly contra­
dicted by the record, which shows that plaintiff's 
counsel filed extensive interrogatories in January 1979 
(A. 1, No.5; A. 16)y that defendants responded to 
these interrogatories in May and June 1979 (A. 1, Nos.9,
10, 12; A. 16-17); and that the death of defendants'
EEO Officer did not occur until December 1979 (A. 28).
Even defendants have acknowledged that this officer died 
"after the undertaking of discovery by plaintiff" (A. 56).
Thus, the primary factual underpinning of the district court's 
decision is utterly without support in the record and must 
be set aside as clearly erroneous. Rule 52(a), Fed. R. Civ.P.

The court compounded this basic factual error by conclu­
ding that defendants had been "significantly prejudiced" by 
the delay in prosecution (A. 40). The record contains abso­
lutely no evidence of any such prejudice. Instead, it 
contains only the unsworn statements of defense counsel that 
the EEO Officer's death would cause defendants to "experience 
difficulty" in pursuing their defense (A. 29), and that the 
transfer of two potential witnesses to Army Corps of Engineers 
facilities in other states would result in "inconvenience"
(id_.) . These unsubstantiated assertions of counsel do not 
establish that the transferred employees would be unavailable 
to testify, they do not demonstrate that the testimony of

7



the deceased EEO Officer was essential to the defense, 
and they do not amount to a showing of prejudice. 
Bernard v. Gulf Oil Co., 596 F.2d 1249, 1257 (5th Cir.
1979) , reaff'd en banc, 619 F.2d 459, 463 (5th Cir.
1980) . The district court applied an erroneous legal 
standard in concluding that defendants were prejudiced, 
and its decision therefore should be reversed. See 
Kelley v. Southern Pacific Co., 419 U.S. 318, 322-23 
(1974); Senter v. General Motors Corp., 532 F.2d 511, 
526 (6th Cir.), cert, denied, 429 U.S. 870 (1976).

8



II* The District Court Abused its Discretion.

In dismissing plaintiff Smith’s civil rights case for 
failure to prosecute, the court below abused its discretion 
and ignored the controlling principles of law established 
by this and other circuits. The leading decision of this 
Court is Edsall v. Penn Central Transportation Co.. 479 F.2d 
33 (6th Cir.), cert, denied. 414 U.S. 1040 (1973). In Edsall, 
a case brought by an injured railroad employee under the 
Federal Employers' Liability Act, the district court had dis-

4/
missed the complaint after both the plaintiff and his counsel 
had failed to appear for trial. Their failure to appear was 
in direct contravention of the order setting the trial date; 
this order had been entered six weeks earlier, and it ex­
pressly stated that no continuance would be granted and that, 
if plaintiff's counsel were unable to proceed, "replacement 
counsel will be prepared to proceed ...." 479 F.2d at 34.
The attorney argued that he had been unable to appear for 
the trial due to illness. However, he did not write to the 
court to request a continuance; he did not ask another lawyer 
to appear and request a continuance; he did not arrange for 
his client to be present and request a continuance; and he 
did not obtain replacement counsel to try the case. id.

4/  ̂ Although the order of dismissal purported to be without 
prejudice, the plaintiff was unable to file a new action 
because the statutes of limitations had run. 479 F.2d at 
34.

-9-



This Court found that the attorney's conduct in Edsall
was "totally insufficient," but that it did not justify the 
"drastic sanction" of dismissal. 479 F.2d at 34. The Court 
regarded the following circumstances as controlling:

The record does not indicate that Mr.
Edsall knew of the requirement in the July 
21 order that he be prepared to proceed 
with replacement counsel if [his attorney] 
should have been unavailable, and in the 
absence of the affirmative showing of such 
knowledge we are reluctant to punish the 
client for the behavior of the lawyer. Further, 
plaintiff's clairts are now time-barred and 
the dismissal thus effectively prevents plain­
tiff from ever having his day in court. And, 
the relief he seeks is based on a remedial and 
humanitarian statute that was specially enacted 
by Congress to afford relief to employees from 
injury incurred in the railway industry.

479 F.2d at 35. In balancing the equities, this Court con­
cluded that the rights of the injured employee outweighed 
both the interest of the defendant and the concern of the 
district court for its calendar. Id. Accordingly, the 
order of dismissal was reversed as an abuse of discretion. 
See also, Sepia Enterprises, Inc, v. City of Toeldo, 4625 /

F.2d 1315 (6th Cir. 1972).

5/ In Sepia, this Court vacated a Rule 41(b) order dismissing 
an action for failure to comply with court orders and for want 
of prosecution. The Court stated as follows (462 F.2d atl317):

We are sensitive to the concern of district 
courts for the expeditious resolution of litiga­
tion pending on their dockets. And we regard 
strict compliance with the direction of a dis­
trict court as an important duty of counsel. 
Nevertheless, we prefer to have disputes resolved 
on their merits.

-10-



Unlike the attorney in Edsall, counsel for plaintiff
Smith promptly complied with all orders of the district 
court. In other respects, however, the facts in the case 
at bar closely parallel the facts in Edsall. The delay in 
the instant case between June 1979 and February 1980 was 
not the fault of plaintiff Smith, but was due to his counsel's 
heavy work schedule and to the inadvertent misfiling of 
his case file in his counsel's office (A. 13-14). Here, 
as in Edsall, there was no affirmative showing that the 
plaintiff had any knowledge of these facts and accordingly 
there is no basis for concluding that the client should be 
punished for his lawyer's delay. Further, the dismissal 
of plaintiff Smith's claims, like the dismissal of plain­
tiff Edsall's claims, has forever deprived him of his day 
in court. Finally, the relief plaintiff Smith seeks is 
based on Title VII of the Civil Rights Act of 1964, "a 
remedial and humanitarian statute that was specially enacted 
by Congress to afford relief to employees ...." Edsall, 
supra, 479 F.2d at 35. Therefore, under the standards 
established in Edsall, the district court abused its dis­
cretion in dismissing this action.

This Court's decision in Edsall has been cited and
6/ 7/

followed by other courts and commentators, and it is

6/ See Jackson v. Washington Monthly Co., 569 F.2d 119, 123 
(D.C. Cir. 1977); Reizakis v, Loy, 490 F.2d 1132, 1135 (4th Cir. 
1974) ("Rightfully, courts are reluctant to punish a client for 
the behavior of his lawyer").
7/ See 5 Moore's Federal Practice 5 41.11 [2],. at 41-143 (2d 
ed. 1979); 9 Wright & Miller, Federal Practice and Procedure 
§ 2370, at 33 n.24 (Supp. 197971

-11-



consistent with the decisions in the other circuits. The 
Fourth Circuit, for example, has described the applicable 
standard in the following terms:

A dismissal with prejudice is a harsh 
sanction which should not be invoked lightly 
in view of "the sound public policy of de­
ciding cases on their merits." ... Against 
this policy, the district court must balance 
considerations of sound judicial administra­
tion, applying four criteria: (1) the degree
of personal responsibility on the part of the 
plaintiff; (2) the amount of prejudice to the 
defendant caused by the delay; (3) the presence 
or absence of a "drawn out history of delib­
erately proceeding in a dilatory fashion"; 
and (4) the effectiveness of sanctions less 
drastic than dismissal.

Davis v. Williams. 588 F.2d 69, 70 (4th Cir. 1978) (citations 
omitted). See also, McCargo v. Hedrick, 545 F.2d 393, 396 
(4th Cir. 1976); Bush v. United States Postal Service, 496 
F.2d 42, 44 (4th Cir. 1974); Reizakis v. Loy, 490 F.2d 1132, 
1135-36 (4th Cir. 1974).

The Fifth Circuit likewise regards dismissal with pre­
judice as

a severe sanction that ... is to be used 
only in extreme circumstances ... where 
"there is a clear record of delay or con­
tumacious conduct," and "where lesser 
sanctions would not serve the best interests 
of justice." ... Thus, "while we will 
not disturb the District Court's exercise 
of sound discretion in keeping its calendar 
under control, we will not approve sanctions 
that are not commensurate with the derelic­
tion. "

Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 212 (5th 
Cir. 1976) (citations omitted). "Furthermore, a party should 
not be punished for his attorney's mistake absent a clear

-12-



record of delay or wilful contempt and a finding that 
lesser sanctions would not suffice." Hildebrand v. Honeywell, 
Inc., 622 F.2d 179, 181 (5th Cir. 1980). See also, Gonzalez 
v. Firestone Tire and Rubber Co., 610 F.2d 241, 247-48 (5th 
Cir. 1980); Wrenn v. American Cast Iron Pipe Co., 575 F.2d 
544, 546 (5th Cir. 1978).

The other circuits have adopted substantially the same 
principles. See Schenck v. Bear, Stearns & Co., 583 F.2d 
58, 60 (2d Cir. 1978); Moore v. St. Louis Music Supply Co.,
539 F.2d 1191, 1193-94 (8th Cir. 1976); Jackson v. Washington 
Monthly Co., 569 F.2d 119, 123 (D.C. Cir. 1977). See gen­
erally, 5 Moore's Federal Practice, supra, § 41.11[2]; 9 
Wright & Miller, Federal Practice and Procedure, supra,
§ 2370. The district court ignored these controlling legal
principles in dismissing plaintiff Smith's action for failure

§/
to prosecute.

8/ In its memorandum opinion, the courtbelow cited only 
one case involving a dismissal for failure to prosecute:
Pacific Indemnity Co. v. United States. 66 F.R.D. 493 (E.D.N.C. 
1975), aff'd mem., 532 F.2d 751 (4th Cir. 1976). In that case, 
brought against the government by an insurance company, the 
district court acknowledged the company's "dilatoriness and 
general failure to fulfill its obligation to prosecute its 
case," but the court denied the government's Rule 41(b) motion 
to dismiss upon the company's assurance that it would submit 
a pre-trial order and prepare the case for trial as soon as 
possible. 66 F.R.D. at 493. When two more months had passed 
and the company had taken no further action, the government 
renewed its motion to dismiss. After still another month 
had passed and the company had not even responded to the re­
newed motion to dismiss, the court concluded that the company 
did "not take [its] claim seriously" and dismissed the action. 
Id. In the instant case, by contrast, plaintiff Smith and 
his counsel promptly obeyed all orders of the court and, when 
the delay was called to their attention, they immediately 
proceeded with discovery. Thus, the Pacific Indemnity decision 
is fully consistent with the principles applied in the other

-13-



As this Court recognized in Edsall, the harsh conse­
quences of preventing a plaintiff from ever having his day- 
in court are particularly inappropriate where his claim is 
based on "a remedial and humanitarian statute that was 
specially enacted by Congress to afford relief to employees 
...." 479 F.2d at 35. Title VII of the Civil Rights Act
of 1964 is such a statute; indeed, the intent of Congress 
in enacting Title VII was not only to afford relief to 
individual employees, but to authorize those employees to 
act as "private attorneys general" in enforcing national 
policies of the highest priority. See Christiansburq 
Garment Co. v. EEOC, 434 U.S. 412, 416-17 (1978); Albemarle 
Paper Co. v. Moody, 422 U.S. 405, 415 (1975). The law en­
forcement role of Title VII plaintiffs is even more important 
where, as here, the defendant is an agency of the federal 
government:

Unlike private sector employees, federal 
employee complainants are not merely private 
attorneys general; they are the only attorneys 
general under the enforcement scheme adopted 
in Section 717 [of Title VII] .... Suits in 
behalf of federal employees by the Attorney 
General or EEOC are not authorized against 
federal agencies. Indeed, the Attorney 
General is frequently counsel for the other 
side.

Copeland v. Marshall, 23 FEP Cases 967, 977 (D.C. Cir., Sept.
2, 1980) (en banc), quoting Parker v. Califano, 561 F.2d 320,
331 (D.C. Cir. 1977). Therefore, even in cases where the

8/ continued
decisions cited above, and it is factually distinguishable 
from the case at bar.

-14-



plaintiff's or the lawyer's dereliction has been far more 
serious than the inadvertence of counsel for plaintiff Smith 
in the case at bar, the appellate courts have been reluctant 
to uphold dismissals of. employment discrimination actions

9/for failure to prosecute.
For instance, in Boazman v. Economics Laboratory, Inc., 

supra, the plaintiff initially was quite slow in prosecuting 
his Title VII suit, and he then failed to respond to a Rule 
12 motion to dismiss, despite a direct warning from the dis­
trict court that such conduct would result in a dismissal 
for failure to prosecute. 537 F.2d at 211-12. The Fifth 
Circuit reversed the dismissal as an abuse of discretion,
"since the facts disclose none of the 'contumacious indif­
ference to the Court of the kind we generally regard as 
requisite to the use of this severe sanction,' ... and since 
lesser sanctions were available to the District Court." Id. 
at 213.

In Gonzalez v. Firestone, supra, the district court dis­
missed an employment discrimination case when the plaintiff's 
attorney failed to appear at a pre-trial conference after 
having been granted a five month continuance. 610 F.2d at 247.

9/ The Title VII cases cited in the district court's opinion 
are not to the contrary. In both Albemarle Paper Co. v. Moody, 
422 U.S. 405, 424-25 (1975), and Occidental Life Ins. Co. v.
EEOC, 432 U.S. 355, 373 (1977), the Court stated that one form 
of relief (back pay) may properly be restricted or even denied 
if a Title VII defendant is "in fact prejudiced" by the plain­
tiff's unexcused conduct of a particular case. Neither decision 
holds or suggests that the plaintiff's entire action should be

-15-



On appeal, the Fifth Circuit noted that the plaintiff's 
claim was not vexatious or fictitious, that there was no 
showing of any substantial prejudice to the defendant's 
rights, that the district court had not initiated any prior 
action to obtain compliance with its orders, and that the 
court had not previously warned the plaintiff or his attorney 
that a continued failure to proceed properly would result 
in dismissal. Id. at 248. The appellate court also found 
nothing in the record to indicate that the plaintiff had any 
knowledge or bore any responsibility for his attorney's failure 
to appear at the pre-trial conference, and it stated that, 
"[w]hile the attempts of counsel to explain his absence at 
the conference are less than adequate, the district court 
had no reason to believe that his failure to appear resulted 
from intentional misconduct rather than inadvertence." Id.
The Fifth Circuit therefore reversed the dismissal as an 
abuse of discretion.

In Moore v. St. Louis Music Supply Co., supra, the dis­
trict court dismissed a Title VII action under Rule 41(b) 
when neither the plaintiff nor his attorney appeared for the 
trial. The attorney was admittedly overextended and did not 
properly notify the court of conflicting judicial demands on 
his time. 539 F.2d at 1194. The Eighth Circuit reversed 
the dismissal, stating that the necessary inquiry in such cases

9/ continued
dismissed merely because his lawyer was tardy in pursuing dis­
covery, especially where, as here, there is no evidence that 
the defendant has been prejudiced. In fact, in both Albemarle

-16-



focuses in the main upon the degree of 
egregious conduct which prompted the 
order of dismissal and to a lesser ex­
tent upon the adverse impact of such 
conduct upon both the defendant and the 
administration of justice in the District 
Court. ... Where the offending conduct results 
from conflicting court commitments of the attorney 
rather than the indifference or dilatory 
tactics of the litigant himself, there are 
other tools at the trial judge's disposal 
which do not impact so decisively upon the 
innocent litigant.

*  *  *

While an attorney is an officer of the 
court and has undertaken a solemn obligation 
to respect and uphold its processes, it is 
also true that he is more often than not the 
officer of many courts whose processes are 
not coordinated and frequently compete for 
the attorney's attention and presence.

Id. at 1193-94. See also, Hildebrand v. Honeywell, Inc.,
supra, 622 F.2d 179 (Title VII case); Wrenn v. American Cast
Iron Pipe Co., supra, 575 F.2d 544 (Title VII case).

The record in the instant case clearly demonstrates that 
the delay in prosecution resulted not from any intentional 
misconduct by plaintiff Smith, but rather from the inadvertence 
of his counsel. If the district judge believed that it was 
necessary to punish plaintiff's counsel for her inadvertence, 
he had "other tools at [his] disposal which do not impact so 
decisively upon the innocent litigant." Moore v. St. Louis 
Music Supply Co., supra, 539 F.2d at 1193; Jackson v. Washington

9/ continued
Paper and Occidental Life, the Supreme Court held that mere 
delay in the assertion of Title VII claims is not a sufficient 
basis for restricting or denying relief. 422 U.S. at 424-25; 
432 U.S. at 372-73.

-17-



Monthly Co., supra, 569 F.2d at 123. Such alternative sanctions 
include requiring the attorney to pay any excess court costs 
resulting from the delay, requiring counsel to have the case 
ready for trial within a specific period of time, or even 
instituting civil contempt proceedings against the attorney. 
Moore, supra, 539 F.2d at 1193, n.2; Schenck v. Bear, Stearns 
& Co., supra, 583 F.2d at 60. Cf. Sepia Enterprises, Inc, v. 
City of Toledo, 462 F.2d 1315, 1317 (6th Cir. 1972) (vacating 
an order of dismissal under Rule 41(b) and directing the dis­
trict court to permit plaintiffs a reasonable, short period 
of time to comply with the court's previous orders).

We submit that, on the facts of this case, there was 
no justification for imposing any sanction on plaintiff's 
counsel. But even where such a sanction is appropriate,
"it does not follow that [the attorney's] client should be 
the one to feel the lash." Moore. supra. 539 F.2d at 1194. 
Therefore, under the principles of this Court's decision 
in Edsall and the many similar decisions in other circuits, 
the district court abused its discretion in dismissing 
plaintiff Smith's Title VII action.

-18-



Conclusion

For the foregoing reasons, the district court's order 
dismissing this action should be reversed, and the case 
should be remanded for a trial on the merits.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
LOWELL JOHNSTON 
PATRICK 0. PATTERSON 

10 Columbus Circle 
Suite 2030
New York, New York 10019

JUANITA LOGAN CHRISTIAN 
Suite 490
Hart Block Building 
730 West Main Street 
Louisville, Kentucky 40202

Attorneys for Plaintiff-Appellant

September 1980

-19-



Certificate of Service

I hereby certify that a copy of the foregoing brief for
plaintiff-appellant was served this date by ordinary United
States Mail on the following:

Mikell T. Grafton, Esq.
Assistant U.S. Attorney 
Western District of Kentucky 
211 U.S. Courthouse Building 
6th and Broadway 
Louisville, Kentucky 40202

Dated: September 30, 1980

Qfcdc.
Patrick 0. Patterson
Attorney for Plaintiff-Appellant