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No. 96-2129

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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. *

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 Submitted: December 9, 1996

 Filed: February 26, 1997

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Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.

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WOLLMAN, Circuit Judge.

Robert Mann appeals from the district court's Rule 41(b) dismissal

of his complaint. We reverse and remand. 

I.

On August 29, 1990, Mann fell from the roof of a building owned by

Kevin and Patricia Jakoubek. The Jakoubeks brought Mann to the emergency

department at St. Louis University Hospital for treatment of the fracture

in his right leg that Mann suffered in the fall. Approximately five hours

later, Mann was transferred to St. Louis Regional Hospital. Mann's right

leg was eventually amputated in December of 1991, allegedly as a

consequence of negligent treatment Mann received at the hospital.
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On August 28, 1992, Mann filed suit in the Circuit Court of the City

of St. Louis, Missouri, against the Jakoubeks, St. Louis University

Hospital, 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. Louis University Hospital. Following the removal of the

case to district court, Mann's claims against the Jakoubeks and Dr. Kugler

were dismissed for failure to prosecute. 

On November 17, 1994, the district court issued a pretrial order that

directed the parties to comply with a number of requirements not less than

ten days 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 their

required pretrial documents and information on March 1, 1996. Mann's thenattorney, Drew Baebler, failed in all respects to comply with the pretrial

order. 

On February 21, 1996, the district court ordered Mann's expert, Dr.

Oppenheim, to provide answers by March 5, 1996, to two questions he had

refused to answer in his December 8, 1995, deposition. The answers were

not mailed until March 5, 1996, and the defendants did not receive them

until March 7, 1996.

On March 6, 1996, the defendants moved for dismissal of Mann's case

with prejudice. On March 7, 1996, the district court granted the motion,

explaining 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 the defendants by inhibiting

their ability to prepare for trial. 

On March 7, 1996, Mann, through Baebler, moved for dismissal without

prejudice. In the motion, Baebler explained that the failure to comply was

due to his discovery of facts completely
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destroying Dr. Oppenheim's credibility as a witness. Baebler stated that

he had learned during Dr. Oppenheim's October 10 and December 8, 1995,

depositions that Oppenheim was no longer a licensed medical doctor and that

two states had revoked his license for misusing his Drug Enforcement Agency

privileges to prescribe narcotics for himself and for making false

statements under oath. Baebler also stated that he more recently

discovered that Oppenheim had been ordered to repay expert witness fees for

lying about his credentials in open court. Baebler did not explain why he

failed to take prompt action when these facts came to his attention. The

district court denied the motion.

II.

Mann argues that his case should not have been dismissed with

prejudice because he did not engage in willfully disobedient or calculated

conduct that warranted dismissal. He suggests that the district court

should have considered alternative, less-drastic sanctions.

 We recognize the importance of the expeditious treatment of cases

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 these

interests, a district court has the power to dismiss cases when parties

fail 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 court, however inexcusable, justifies total extinction of a client's

cause of action." Givens v. A.H. Robins Co., Inc., 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 . . .

persistent failure to prosecute a complaint." Id. A district court

should weigh the
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court's need to advance its heavy docket against the consequence of

irreversibly extinguishing the litigant's claim and consider whether any

less-severe sanction could adequately remedy the effect of the delay on the

court and the prejudice to the opposing party. See Moore, 539 F.2d at

1193; see also Garland v. Peebles, 1 F.3d 683, 686-87 (8th Cir. 1993).

We agree that sanctions were certainly warranted for Mann's

unjustified failure to comply with the district court's orders. Dismissing

Mann's case with prejudice, however, was disproportionate to his

transgression. Mann himself did not engage in any intentional or willfully

disobedient conduct designed to delay the proceedings or frustrate the

defendants' preparations for trial. Rather, the failure to comply was due

solely to Baebler's lack of diligence. Under the facts of this case, Mann

should not be made to shoulder such a grave consequence -- the total

extinction of his claim -- for Baebler's dereliction. See Moore, 539 F.2d

at 1194. 

Therefore, notwithstanding our reluctance to interfere with the

district court's management of its docket, we conclude that dismissal

without prejudice is a more fitting sanction here. See id. Such a remedy

will relieve the district court of the burden of Mann's unprepared case,

yet preserve Mann's day in court. Assessing costs against Baebler

personally, a sanction 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 we

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 against Baebler, as well as any

appropriate disciplinary action to be taken against him.
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A true copy.

Attest:

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