## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2217

___________ Christine Treanor, * * Plaintiff, * * Earl John Singh, * Appeals from the United States * District Court for the Movant-Appellant, * District of Minnesota * v. * * MCI Telecommunications Corporation. * * Defendant-Appellee. *

___________ Nos. 97-2219, 97-3852

___________ Christine Treanor, * * Plaintiff-Appellant, * * v. * * MCI Telcommunications Corporation, * * Defendant-Appellee. *2 ___________The Honorable John T. Noonan, Jr., United States Circuit Judge, United States 1 Court of Appeals for the Ninth Circuit, sitting by designation.

3 Submitted: May 15, 1998 Filed: July 30, 1998

___________ Bef ore McMILLIAN, NOONAN , and MORRIS SHEPPARD ARNOLD, Circui t 1 Judges

___________ NOONAN, Circuit Judge. Ch ristine Treanor appeals the dismissal of her suit against MC I Tele communications Corporation (MCI), and the order that she pay sanctions an d attorney's fees to MCI. Earl John Singh appeals the imposition on him of sanctions in the same case.
PROCEEDINGS On June 9, 1995, Treanor, a former emp loyee of MCI, brought this suit alleging discrimination against her on account of disability and gender. She was represented by Singh. On August 28, 1995 the district court adopted a pretrial order setting th e schedule upon which the case was to proceed. Discovery was to be completed b y January 31, 1996.
MCI noticed

Treanor's deposition for December 19, 1995. Singh said she was on vacation and would not appear. MCI noticed the deposition for January 9, 1996.4

AgainSingh stated she was on vacation and would not appear. MCI noticed th e deposition for January 18, 1996. Treanor appeared . Singh did not. Treanor and MCI agreed to postpone thedeposition until later in the month before the January 31, 1996 deadline for discovery. Instead of scheduling a new time, Treanor moved to exten d disc overy beyond January 31, 1996. Treanor also continued to procrastinate i n providing medical information sought by MCI. Fu rther, she sought to replace Singh as her counsel.
On Feb ruary 6, 1996 the magistrate judge denied Treanor's motion to exten d discovery, denied Singh's motion to withdraw, and ordered Treanor's deposition to be taken " forthwith." On February 8, 1996, MCI noticed Treanor's deposition fo r February 15 and 16, 1996. On February 14, 1996 Singh wrote counsel for MCI that Treanor had been "on the road," was unaware of the deposition date, and that he did "not an ticipate" that she would appear. As Singh anticipated, Treanor, who wa s informed of the scheduled deposition on the evening of February 14, was unavailable to be deposed on February 15 or 16. On February 15, 1996 Treanor secured new counsel, Krass, Monroe P.A., who continue to represent her on this appeal. Her new attorneys notified counsel for MCI that Treanor would be available for deposition on February 22. Instead of accepting this offer, MCI moved for sanctions under Fed. R. Civ. P. 37(b). After a hearing o n March 5 , 1996, the magistrate judge allowed Singh to withdraw as counsel an d extended the discovery deadline to May 31, 1996. At the same time the magistrat e found Treanor and Singh had committed "extreme discovery abuse," warrantin g san ctions. The magistrate declared that he "questions Plaintiff's commitment t o prosecute her claim," but concluded that "outright dismissal of Plaintiff's claims would be, at this time, too drastic a measure." The magistrate imposed a sanction of $4,000 on Treanor and

Singh, jointly and severally as partial reimbursement for expenditures caused MCI by their "obstructive conduct." If payment of the sanctions were not made5

by April 30, 1996, Treanor's case was to be dismissed. The magistrate's order wa s dated April 16, 1996, giving Treanor and Singh fourteen days to pay. On May 2, 1996 Treanor and Singh moved for reconsideration. On May 7, 1996 the magistrate heard the motio n and on June 28, 1996 ruled on it. The magistrate said that the motion had come "after time for compliance" with the April 16 order, bu t nonet heless addressed Treanor's motion for reconsideration on the merits. Th e magistrate f

ound no reason to reconsider Treanor's case. It is not clear from th e magistrate's order how he treated Singh's motion. As there was no explicit reference to the merits of Singh's motion, the order is best understood as dismissing Singh' s motion as untimely. The sanctions were ordered to be paid by July 15, 1996. July 15, 1996 arrive d. The sanctions had not been paid. On July 16, 1996, the magistrate recommended dismissal of Treanor' s complaint with prejudice. On July 17, 1996 Treanor appealed the magistrate's order of June 28, 1 996. On July 19, Singh also appealed the same order. On July 19, 1996 , MCI's motion for summary judgment was argued in the district court. The trial, originally scheduled to begin in August 1996 , was put off by the district court because of its congested calendar. On March 31, 1997 the dis trict court acted on the magistrate's recommendation of July 16, 1996. The district court ruled that Singh's and Treanor's appeals of th e magistrate' s order of June 28, 1996 assessing $4,000 in sanctions against them ha d been "unti mely" and that accordingly that order was "affirmed in all respects." I n addition, "based upon a de novo review of the file, record, and proceedings herein," the court adopted the magistra te's recommendation of July 16, 1996. Treanor's complaint was dismissed with prejudice. On September 17, 1997 the district court adopted the magistrat e's recommendation that Treanor pay MCI $8,327.50 for attorney's fees and $3,100.83 for costs.6

Trea nor appeals the $4,000 sanction, the award of attorney's fees, and th e dismissal of her suit. Singh appeals the $4,000 sanction.
ANALYSIS The record reveals a strangely dilatory ap proach to litigation by the plaintiff and her original counsel. We address, howe ver, only whether the district court had a basis for the decision on appeal. Th e magistrate judge recommended dismissal of Treanor's case for her failure to comply with his order of June 28, 1996. The district cour t offered no other reason for accepting the recommendation and ordering the dismissal. In so doing the district court was in error.
The order of June 28, 1996 was mailed to the parties on July 1, 1996. Service was complete

on mailing. Fed. R. Civ. P. 5(b). The day of mailing does not count in computing the time to respond, and weekends and holidays are excluded. Fed. R. Civ. P. 6(a). As service is by mail, "3 days shall be added to the prescribed period." Fed. R. Civ. P. 6(e). Excluding July 4 and the weekend dates of July 6-7 and July 13-14, the last day for an appeal was July 19. Treanor, appealing on July 17, was well within the time period. Singh qua lified by filing on July 19. With these appeals outstanding, the magistrate could not treat noncompliance with his June 28, 1996 as warranting a sanction , nor could the district court properly endorse the magistrate's conclusion

. Nothing had changed since the magistrate had decided on A pril 16, 1996 that dismissal at that time was "too drastic."
We note that

a different way of applying the Federal Rules of Civil Procedures would lead to a different result. If Rule 6(e) is applied first, the time to respond i s incre ased from 10 to 13 days, but because the time to respond is then more than 1 0 days, holidays and weekends are counted. We reject this a pproach because "[t]he only way to carry out Rule 6(e)'s function of adding time to compensate for delays in mail delivery is to employ Rule 6(a) first." Lerro v. Quaker Oats Co. , 84 F.3d 239, 242 (7th7

Cir. 1996); see also CPNq-Conselho Nacional De Desenvolvimento Cientifico e Technologico v. Inter-Trade, I nc. , 50 F.3d 56, 58 (D.C. Cir. 1995); Tushner v. United States District Court for the C entral District of California , 829 F.2d 853, 855 (9th Cir. 1987).
MC I argues that the only ruling subjecting Singh to sanctions was th e magistrate's order of April 16, 1996 and that Singh failed to timely appeal that order. Und er the local rules, Singh had 10 days to appeal this order. D. Minn. L.R

. 72.1(b)(2). The magistrate in his order of June 28, 1996 treated Singh's appeal a s untimely. Again, the ruling was erroneous, for two reasons. First, the service of the April 16 order was by FAX, for which the local rules did not provide. Second, Singh was served on April 19 (an excludable day). April 20-21 and April 27-28 wer e weekends. Singh appealed on May 2. May 3 was Day 10. Having timely appealed both the magistrate's order of April 16, 1996 and the district court's order of March 31, 1997, Singh's appeal of the $4,000 sanction is properly before us, and MCI's motion to dismiss it is denied.
On rema nd, the district court must consider the timely filed appeals of Treanor and S ingh of the $4,000 sanction assessed against them. To a substantial degree, the magistrate based the assessmen t of attorney's fees against Treanor on the untimeliness of her appeals and her failure to pay the $4,000 sanction. Since we conclude that her appeals were timely and her failure to pay the sanctions while the i ssue of their validity was on appeal was justified, this award cannot be affirmed on this appeal.
For the fore going reasons, the judgments of the district court are REVERSED and the cases REMANDED for proceedings consistent with this opinion.8

MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting. I disagree with the court's decision. In the first place, the magistrate judge in his order of 28 June does not hold that Ms. Treanor's "appeals" were untimely. (Such a determination is not for the magistrate judge in any case; it is for the district court to who m the appeal was made.) What the magistrate judge said was that he woul d consider the motion to r

econsider on its merits, even though that motion was untimely because it came after the time to pay the sanctions had expired.
I also disagree with the court's statement that when the magistrate judge made his recommendation on 15 July, 1996, "[n]othing ha d changed since the magistrate had deci ded on April 16, 1996 that dismissal at that time was 'too drastic'." On th e contr ary, the appellants had failed to pay the sanctions that the magistrate judge ha d ordered, after the magistrate judge had allowed the case to continue only on the specific condition that those sanctions be paid. More basically, I di ssent from the court's conclusion that the district court gave no reason for rejecting the appeal of the order of 28 June other than the untimeliness of the appeals. I think that a fair reading of the district court's order indicates that the district court made a completely "de novo review of the file, record and proceedings herein," including all the relevant materials that bore on the magistrate judge's decision of 28 June, in accepting the magistrate judge's final recommendation.
That being the case, I would reach the question of the appropriateness of th e sanctions imposed, and would affirm the distric t court since we are obliged to be "very defe rential" in reviewing sanctions for discovery abuses. Sylla-Sawdon v. Uniroya l Goo drich Tire Co. , 47 F.3d 277, 280 (8th Cir. 1995), cert. denied , 516 U.S. 82 2 (1995). Here, the magistrate judge and district court exhibited exemplary patience in dealing with the plaintiff and her counsel.9

Because of

today's decision, this perfectly ordinary case now enters its fourth year without even passing beyond discovery. The record is already huge, with 25 0 pages of briefs and motions filed in the appeal alone. To allow these proceedings to contin ue on this record cooperates in an abuse of the legal system of a kind that is all too common, and I therefore respectfully dissent from the court's judgment.
A true copy.
ATTEST: CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.