___________ No. 96-2129

___________ Robert Mann, * * Appellant, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Lawrence Lewis, M.D.; Kevin * Baumer, M.D.; John Kefalas, * M.D.; Douglas McDonald, M.D.; * St. Louis University Hospital, * * Appellees. *

___________ Submitted: December 9, 1996 Filed: February 26, 1997

___________ Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

___________ WOLLMAN, Circuit Judge.

Robert Mann appeals from the district court's Rule 41(b) dismissa l of his complaint. We reverse and remand.

I.

On Au gust 29, 1990, Mann fell from the roof of a building owned by Kevin and Patricia Ja koubek. The Jakoubeks brought Mann to the emergency department at St. Lou is University Hospital for treatment of the fracture in his right leg that Mann suffered in the fall. Approximately five hours later, Mann was trans ferred to St. Louis Regional Hospital. Mann's right le g was eventually amputated in December of 1991, allegedly as a consequence of negligent treatment Mann received at the hospital.

### -2- On August 28, 1992, Mann filed suit in the Circuit Court of the City of St. Louis, Missouri, against the Jakoubeks, St. Louis Universit y Hospit al, Lawrence Lewis, M.D., Kevin Baumer, M.D., John Kefalas, M.D. , Douglas McDonald, M.D., Jeffrey Kugler, M.D., and an unknown employee or employees of St. Loui s University Hospital. Following the removal of the case to district court, Mann's claims against th e Jakoubeks and Dr. Kugler were dismissed for failure to prosecute.
On November 17, 1994, the district court issued a pretrial orde r that directed the parties to comply with a number of requirements not less than ten day s before trial. The trial date was continued a number of times , with trial finally scheduled to commence on March 11, 1996, on Mann' s claims against the remaining defendants. The defendants filed thei r required pretrial documents and information on March 1, 1996. Mann's then

attorney, Drew Baebler, failed in all respects t o comply with the pretrial order.

On Februa ry 21, 1996, the district court ordered Mann's expert, Dr. Oppenheim , to provide answers by March 5, 1996, to two questions he ha d refused to answer in his December 8, 1995, deposition. The answers were not maile d until March 5, 1996, and the defendants did not receive the m until March 7, 1996.

On March 6, 1996, the defendants moved for dismissal of Mann's case with prejudice. On M arch 7, 1996, the district court granted the motion, expl aining that Mann's failure to comply with the November 17, 1994 , pretrial order and his untimely response to the February 21, 1996, order directly violated those orders and prejudiced th e defendants by inhibiting their ability to prepare for trial.
On March 7, 1996, Mann, through Baeb ler, moved for dismissal without prejudice. In the motion, Baebler explained that the failure to comply wa s due to his discovery of facts completely

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destroying Dr. Oppenh eim's credibility as a witness. Baebler stated that he ha d learned during Dr. Oppenheim's October 10 and December 8, 1995 , depositions that Oppenheim was no longer a licensed medical doctor and tha t two states had revoked his license for misusing his Drug Enforcement Agenc y privil eges to prescribe narcotics for himself and for making fals e state ments under oath. Baebler also stated that he more recentl y discovered that Oppenheim had been ordered to repay expert witness fees fo r lying about his credentials in open court. Baeb ler did not explain why he failed to take prompt action when these facts came to his attention. The district court denied the motion.

II.

Man nargues that his case should not have been dismissed wit h prejudice because he did not engage in willfully disobedient or calculated conduct that warranted dismissal. He suggests that the district cour t should have considered alternative, less-drastic sanctions.

We reco gnize the importance of the expeditious treatment of case s in the district courts and the right of parties not to suffer prejudice as
a result of an opposing party's dilatory conduct. To protect thes e interests, a district court has the power to dismiss cases when partie s fai l to comply with its rules. See Fed. R. Civ. P. 41(b); Moore v. St
. Louis Music Supply Co., Inc. , 539 F.2d 1191, 1193 (8th Cir. 1976).
Nevertheless, "not every instance of failure to comply with an order of cou rt, however inexcusable, justifies total extinction of a client' s cause of action." Givens v. A.H. Robins Co., In c. , 751 F.2d 261, 263 (8th Cir. 1984). "Dismissal with prejudice is an extreme sanction and should be used only in cases of willful disobedience of a court order or . .
. per sistent failure to prosecute a complaint." Id. A district cour t should weigh the

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court's need to advance its heavy docket against the consequence o f irreversiblyextinguishing the litigant's claim and consider whether any less-severe sanction could adequately remedy the effect of the delay on th e court an d the prejudice to the opposing party. See Moore , 539 F.2d a t 1193; see also Garland v. Peebles , 1 F.3d 683, 686-87 (8th Cir. 1993).

We agre e that sanctions were certainly warranted for Mann' s unjustified failure to comply with the district court's orders. Dismissin g Mann's case with prejudice, however, was disproportionate to hi s transgression. Mann himself did not engage in any intentional or willfull y disobe dient conduct designed to delay the proceedings or frustrate th e defendants' preparations for trial. Rather, the failure to comply was due solely to Baebler's lack of diligence. Under th e facts of this case, Mann should not be made to shoulder such a grave consequence -- the tota l extinction of his claim -- for Baebler's derelic tion. See Moore , 539 F.2d at 1194.
Therefore, notwithstanding our reluctance to interfere with th e distri ct court's management of its docket, we conclude that dismissa l without prejudice is a more fitting sanction her e. See id. Such a remedy will relieve the district court of the burden of Mann's unprepared case, yet pres erve Mann's day in court. Assessing costs against Baeble r personally, a sanctio n within the district court's power, see id. at 1193 n.2, would compensate the defendants for the prejudice they suffered.
Accordingly, we reverse the order dismissing the action, and w e remand the case to the district court for entry of an order of dismissal without prejudice. We leave it to the district court to determine, in its sound discretion, the costs to be assessed again st Baebler, as well as any appropriate disciplinary action to be taken against him.

### -5- A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.