The Honorable Scott O. Wright, United States Senior District Judge for the Western District 1

of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-2989

____________

Matthew Duke Rodgers, *

*

Appellant, *

*

v. *

* Appeal from the United States

The Curators of the University of * District Court for the

Missouri; Charles Geiss; James * Western District of Missouri

Parker; Ray Dockweiler; Jenice *

Stewart, Jo Behymer; Suzanne *

Holland; Wanda Kent, *

*

Appellees. *

____________

 Submitted: March 12, 1997

 Filed: February 3, 1998

____________

Before McMILLIAN, FLOYD R. GIBSON and JOHN R. GIBSON,

Circuit Judges.

____________

McMILLIAN, Circuit Judge.

Matthew Duke Rodgers (“appellant”) appeals from a final order of the district

court dismissing his action with prejudice pursuant to Rule 41(b) of the Federal Rules 1
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of Civil Procedure for failure to prosecute and follow court orders, and awarding

attorneys’ fees in favor of The Curators of the University of Missouri, Charles Geiss,

James Parker, Ray Dockweiler, Jenice P. Stewart, Jo Behymer, Suzanne Holland, and

Wanda Kent (collectively, “appellees”). For reversal, Rodgers argues that the district

court (1) abused its discretion in failing to consider lesser sanctions and (2) erroneously

found that his conduct was “wilful.” For the reasons discussed below, we affirm the

order of the district court. 

I. Jurisdiction

Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331 and

1367. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of

appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.

II. Background

The following facts are derived from the findings of the district court and the

record on appeal. On May 14, 1989, appellant, then a student at the University of

Missouri at Columbia (“University”), was in an automobile accident in which he

suffered serious head injuries. Upon returning to the University in 1990, Rodgers

requested accommodation for his injury-related learning difficulties.

On July 11, 1994, appellant filed suit in federal district court against appellees

alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101

et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. In brief, appellant

claimed that the University neglected his needs and failed to provide the

accommodations that he requested or, alternatively, provided inadequate

accommodations. On June 10, 1996, the district court dismissed appellant’s action
Appellant does not appeal the district court’s award of attorneys’ fees. 2

The parties had previously agreed to complete appellant’s deposition after the close of

3

discovery in order to accommodate a scheduling conflict between appellant and his then-current

counsel. Accordingly, the district court scheduled appellant’s deposition for April 15, 1996.

However, as this date did not comport with appellant’s schedule, the deposition was rescheduled for

April 22, 1996, in Kansas City, Missouri. 

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with prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and

awarded attorneys’ fees in favor of appellees. 

2

The circumstances which occasioned the district court’s dismissal occurred over

a two-year period (following the filing of appellant’s complaint) in which appellant

repeatedly disregarded orders of the district court. First, appellant failed to comply in

a timely fashion with the district court’s order to produce certain material documents

(specifically, bank and income tax records) that appellees had sought unsuccessfully

from appellant since 1995. Instead, appellant sporadically produced selected

documents, some of which were not produced until March 29, 1996, the day of the

hearing on the district court’s order to show cause why the action should not be

dismissed for appellant’s violation of discovery orders. 

Second, appellant failed to appear at a properly-noticed, court-ordered

deposition. On April 12, 1996, appellees informed the district court that appellant had

been only partially deposed and certain aspects of the litigation required further inquiry.

The district court subsequently ordered appellant to complete his deposition with

appellees on April 22, 1996. However, appellant failed to appear at his deposition. 3

Finally, appellant violated a court order prohibiting him from firing his fourth set

of counsel. Specifically, during a scheduling conference on October 5, 1995, the

district court forewarned appellant via his then-current counsel, Lynn Bratcher, that his
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case would be dismissed with prejudice if he should fire her. The following

exchange occurred:

THE COURT: If this guy fires you Lynn

[Bratcher], I’m going to dismiss his case with

prejudice.

MS. BRATCHER: Okay. I understand that, Your

Honor.

THE COURT: You better tell him that.

MS. BRATCHER: Okay. I understand that, Your

Honor.

Joint Appendix (“J.A.”) at 119 (District Court Order of

June 10, 1996 (“Order”), at 3 (citing Transcript of

Telephone Conference of Oct. 5, 1995, at 8)). Bratcher

subsequently informed appellant in writing that her

withdrawal would trigger the dismissal of his case with prejudice. Specifically,

Bratcher wrote: “[Judge Wright] said that if your lawyers

withdraw again, he will dismiss the case with prejudice.

I just want you to be aware of that.” J.A. at 213

(Exhibit E of Motion to Reconsider, Letter from Bratcher

to appellant of Oct. 6, 1995, at 1).

Despite this warning, on April 21, 1996, appellant fired Bratcher. By that time,

four sets of counsel had withdrawn and been replaced as attorneys-of-record in

appellant’s suit. As a result of these changes in counsel and the new issues raised in

appellant’s amended complaints, the district court extended the discovery cut-off date

five times and reset the trial date three times.
The Curators had previously moved for a dismissal of appellant’s case with prejudice on

4

September 13, 1995. However, the district court declined to rule on that motion. 

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On April 29, 1996, appellees moved to dismiss appellant’s action with prejudice

pursuant to Federal Rule of Civil Procedure 41(b). The next day, appellant obtained 4
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his fifth and current set of counsel. On June 10, 1996, the district court granted

appellees’ motion, finding that appellant had deliberately violated court orders and

engaged in dilatory conduct, that appellant’s conduct had prejudiced appellees by

inhibiting their preparation for trial and compelling the expenditure of scarce

educational resources, that the imposition of lesser sanctions would be ineffective and

unjustified, and that appellant’s conduct was conscious, intentional, taken deliberately

for tactical gain, and had the effect of attacking the integrity of the court. More

specifically, the district court found that appellant was

dilatory in his prosecution of the case based on his

filing a second amended complaint, which significantly

expanded the scope of the litigation, and his repeated

change of counsel. J.A. at 119-20 (Order at 3-4). 

On June 25, 1996, appellant filed a motion for reconsideration of the district

court’s order of dismissal. Appellant’s motion was denied on July 15, 1996. This

appeal followed.

II. Discussion

A. Standard of Review 

Rule 41(b) of the Federal Rules of Civil Procedure provides that a district court

may dismiss a case for failure to prosecute a claim or comply with court orders; unless

otherwise specified, such dismissal operates as an adjudication on the merits. Fed. R.

Civ. P. 41(b); Brown v. Frey, 806 F.2d 801 (8 Cir. 1986) (Brown). This court reviews th

a Rule 41(b) dismissal under an abuse of discretion standard. Wright v. Sargent, 869

F.2d 1175, 1176 (8 Cir. 1989) (per curiam). When reviewing under this standard, this th

court employs a balancing test that focuses foremost upon “the degree of egregious

conduct which prompted the order of dismissal and to a lesser extent upon the adverse
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impact of such conduct upon both the defendant and the administration of justice in the

district court.” Omaha Indian Tribe v. Tract I -- Blackbird Bend Area, 933 F.2d 1462,

1468 (8 Cir.), cert. denied, 502 U.S. 942 (1991) (Omaha Tribe) (citations omitted). th

Moreover, the sanction imposed by the district court must be proportionate to the litigant’s

transgression. See Mann v. Lewis, 108 F.3d 145, 147 (8 Cir. 1997) (citing Moore v. St. Louis

th

Music Supply Co., Inc., 539 F.2d 1191, 1194 (8th Cir. 1976) (Moore)). 

“Dismissal with prejudice is an extreme sanction and

should be used only in cases of wilful disobedience of a

court order or . . . persistent failure to prosecute a

complaint.” Givens, 751 F.2d at 263 (emphasis added).

Thus, where, as here, a case has been dismissed with prejudice, this court considers

“whether in the particular circumstances of the case the needs of the court in advancing

a crowded docket and preserving respect for the integrity of its internal procedures are

sufficient to justify the harsh consequences of forever denying a litigant his day in

court.” Moore, 539 F.2d at 1193. However, the district court need

not have found that appellant acted in bad faith, only

that he acted intentionally as opposed to accidentally or

involuntarily. E.g., Welsh v. Automatic Poultry Feeder

Co., 439 F.2d 95, 97 (8th Cir. 1971). 

The district court’s determination that appellant

wilfully disregarded court orders and engaged in

intentional delay is a finding of fact, and hence is

subject to the clearly erroneous standard of review. See

Fed. R. Civ. P. 52(a). The clearly erroneous standard

applies “even when the district court’s findings do not

rest on credibility determinations, but are based instead

on physical or documentary evidence or inferences from

other facts.” Anderson v. City of Bessemer City, 470

U.S. 564, 574 (1985) (Anderson); see Fed. R. Civ. P.

52(a). Thus, we may not overturn the district court’s
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factual findings merely because we might have concluded

differently had we initially decided the issue. Rather,

a finding is clearly erroneous only when, “even though

there is evidence in the record to support it, the

reviewing court is left with a
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definite and firm conviction that a mistake has been

committed.” Anderson, 470 U.S. at 573. 

 

B. Analysis

Appellant argues that the district court abused its

discretion in dismissing his action with prejudice and

thereby permanently barring him from pursuing his claims

against appellees. Specifically, Rodgers charges that

dismissal was inappropriate because the court’s decision

was based, in part, on the erroneous finding that his

conduct was wilful. In addition, Rodgers argues that the

district court abused its discretion in failing to impose

lesser sanctions prior to dismissing the action with

prejudice.

The record in the instant case contains instances in

which appellant both wilfully violated court orders and,

apparently, accidentally disregarded them. In light of

the evidence of appellant’s acts of intentional

noncompliance, we find that the district court’s finding

of wilfulness is not clearly erroneous.

For example, appellant failed to comply with the

district court’s March 29, 1996 order to produce certain

financial records. Appellant argues that he timely

delivered these documents to his own counsel of record

and that any delay in their production to appellees was

the fault of his counsel and therefore unintentional.

However, this argument fails for two reasons. First, by

virtue of his agency relationship with his attorneys,

appellant is generally bound by the actions (or inaction)

of his attorney when his attorney acts in her
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representational capacity. See, e.g., Link v. Wabash

R.R., 370 U.S. 626, 633-34 (1962) (holding that, with

respect to attorney misconduct that leads to Rule 41(b)

dismissals, “each party is deemed bound by the acts of

his [or her] lawyer-agent.”); Omaha Tribe, 933 F.2d at

1471 (“It is unfortunate in a case such as this that the

client must live or die by the conduct of its counsel.”).

Second, appellant has proffered no evidence to

substantiate his allegation that he timely produced the
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subject documents to his then-current counsel who then

failed to turn them over to appellees. Accordingly, we

do not find that the district court erred in concluding

that appellant’s derogation of the order to produce the

subject documents was intentional and deliberate.

Moreover, although appellant proffered testimony that he

was unaware that certain documents were within the scope

of the order, this court does not find that this

testimony is sufficient to prove that the district

court’s finding that appellant wilfully violated this

order is erroneous. 

Similarly, the district court’s finding that

appellant intentionally violated the district court’s

October 5, 1995 order against firing his then-current

counsel was not erroneous in light of appellant’s

awareness of the order and his prolonged history of

difficulty in retaining counsel. See Grunewald v.

Missouri Pac. R.R. Co., 331 F.2d 983 (8th Cir.)

(affirming dismissal where trial was postponed after

plaintiff’s original counsel withdrew, trial was again

postponed when plaintiff failed to retain new counsel

until eve of reset trial date, and new counsel withdrew

on eve of trial), cert. denied, 379 U.S. 839 (1964).

Appellant argues that he did not understand Bratcher’s

characterization of the October 5, 1995 order to mean

that firing his counsel would trigger dismissal. Rather,

appellant contends that there is a meaningful distinction

between proscribing the “firing” of one’s counsel and

proscribing their “withdrawal”, and that the order

proscribed the latter only. We are of the opinion,

however, that appellant’s argument is based upon a

distinction without a difference. It is clear that,
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whether an attorney is fired or elects to discontinue her

representation of a client, she must withdraw as the

attorney of record in the underlying suit. Bratcher’s

letter made clear that her withdrawal from the instant

case, presumably under any circumstance, would be cause

for dismissal.

Moreover, the particular facts of the instant case

suggest that appellant clearly understood what happens

when counsel withdraws from a case. Appellant’s first

attorney, David Steelman, withdrew and was replaced as

counsel of record in November 1994. His second attorney,

Edward Clausen, withdrew and was replaced
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as counsel of record in August 1995. His third attorney,

Richard Crites, withdrew on September 13, 1995, citing

that appellant had requested him to engage in borderline

unethical conduct. Crites was replaced by appellant’s

fourth attorney, Lynne Bratcher, on September 26, 1995,

who was replaced by appellant’s current counsel, Tom

Jones and Bryan Round, on April 30, 1996. In each of

these instances, regardless of what precipitated the

attorney’s withdrawal, that attorney ultimately withdrew

as counsel of record. That Bratcher’s letter did not

distinguish “firing” from voluntary withdrawal is thus

inconsequential because the end result is the

same–Bratcher withdrew from the case. 

Furthermore, where, as here, there is evidence that

appellant’s dilatory conduct and disregard of court

orders continued over a two-year period, a

miscommunicated warning threatening dismissal will not

compel reversal. Indeed, while a warning from the

district court that a particular litigant is skating on

the thin ice of dismissal is encouraged, see First Gen.

Resources Co. v. Elton Leather Corp., 958 F.2d 204, 206

(8th Cir. 1992) (per curiam) (First General) (Rule 41(b)

dismissal proper after court warned party of consequence

for failure to engage in discovery), this circuit has yet

to hold that such an admonition is necessary to sustain

a Rule 41(b) dismissal and declines to so hold now. 

Appellant also challenges the district court’s finding that appellant wilfully

disobeyed its order to attend a scheduled deposition. Appellant contends

that the deposition was not properly noticed and thus his

failure to attend it cannot be deemed wilful.

Specifically, appellant maintains that his attorney did
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not inform him about the deposition and that appellees

improperly sent a notice of the deposition directly to

him as opposed to notifying him through his attorney.

The record on appeal reflects that these allegations are

supported only by the testimony of appellant’s father and

are in direct conflict with the district court’s finding

that appellant’s deposition was properly noticed. Order

at 3. In addition, appellant still elected not to appear at the deposition after becoming aware

that the deposition was court-ordered and therefore mandatory.
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In light of the foregoing, this court finds that, despite any difficulties appellant may have had

communicating with his attorney, his failure to attend his court-ordered deposition was accurately

deemed a direct violation of a court order. See Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994)

(finding dismissal with prejudice was appropriate when plaintiff failed to comply with court-ordered

deposition), cert. denied, 513 U.S. 1090 (1995) (Aziz). Accordingly, we accept

the district court’s finding that notice was proper and

that defendant’s conduct was wilful. 

The record also supports the district court’s finding that appellant wilfully

delayed his litigation against appellees, to the extent that appellant changed counsel

four times during the course of this litigation, thereby delaying discovery and trial. In

fact, appellant’s final change in counsel occurred on the eve of his April 22, 1996

court-ordered deposition, at which he failed to appear. Appellant maintains

that appellees also contributed to the delay in the

proceedings by requesting trial and discovery extensions.

Appellant therefore argues that the district court erred

in considering these extensions as a basis for dismissal.

Moreover, appellant contends that the time extensions

that are attributable to him were requested by his

counsel and thus should not affect the disposition of his

case. The record suggests, however, that these delays

were either initiated by appellant or requested as a

result of appellant’s dilatory tactics. See Order at 3-

4. Appellant offers no counter-evidence on this point.

Having found that the district court’s finding of

wilful conduct was not clearly erroneous, we will not

reverse its selection of a sanction unless the court

abused its discretion. Moreover, because a district court may

dismiss a case for any violation of a court order, Brown,

806 F.2d at 803, and there is evidence of several

intentional acts of delay, we affirm. 
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While we agree with appellant that the instant case does not approach the most

egregious conduct upon which this court has previously affirmed dismissals with

prejudice, and while “not every instance of failure to comply with an order of court,
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however inexcusable, justifies total extinction of a client’s cause of action,” Givens, 751

F.2d at 263, dismissal with prejudice is not subject to reversal here where appellant has

engaged in several acts of wilful noncompliance with orders of the court. Moreover,

evidence of appellant’s eleventh-hour attempt to cure his violation of a discovery order,

unsubstantiated allegations of attorney neglect, and an acknowledgment by the district

court that the obstreperous conduct of appellant’s parents was the heart of appellant’s

problem in this case do not make appellant’s conduct any less wilful or sanctionable for

purposes of this analysis. Appellant was given ample opportunities to explain or cure

his violations of discovery orders and the delay prejudiced appellees. Cf. Jackson v.

Schoemehl, 788 F.2d 1296, 1299 (8th Cir. 1986) (reversing dismissal with prejudice

despite plaintiffs’ failure to file proposed findings of fact and conclusions of law for two

years because court gave plaintiffs no opportunity to explain or cure tardiness and delay

did not prejudice defendants).

The above analysis notwithstanding, this case differs from other cases involving

similar acts of noncompliance because of appellant’s traumatic head injuries. Indeed,

appellant’s counsel compellingly argues that appellant “is a young man with cognitive

disabilities secondary to traumatic closed head injuries suffered in an automobile

accident that nearly took his life” and that the district court’s finding that appellant’s

actions were “wilful and deliberate and taken deliberately to gain tactical advantage”

ignores this fact. Upon careful examination of the record, however, we find no evidence that

appellant’s injuries contributed to his acts of noncompliance so as to render them involuntary or

accidental. Absent such proof, we do not find that the district court abused its discretion

in dismissing the appellant’s action with prejudice pursuant to Rule 41(b). 

In the alternative, appellant argues that the district court abused its discretion in

dismissing his claims without first imposing lesser sanctions or explaining why lesser

sanctions would have been ineffective. This court has held that “[t]he ultimate sanction

of dismissal with prejudice should only be used when lesser sanctions prove futile.”
As a last ditch effort to compel reversal, appellant contends that he was misled by the district 5

court to believe that appellees’ Rule 41(b) motion would not be granted because the underlying

proceedings were not stayed pending resolution of that motion. We fail to see any basis for

appellant’s assumption and reject this argument on appeal as meritless.

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Herring v. Whitehall, 804 F.2d 464, 468 (8th Cir. 1986); cf. Givens, 751 F.2d at 263-64

(reversing dismissal with prejudice where lesser sanctions were available). In the instant

case, the district court, relying on First General, supra, 958 F.2d at 206, concluded that any

lesser sanction would be ineffective. Order at 7. Indeed, unlike Givens, upon which

appellant relies, any lesser sanction would have involved further delay or forced

appellees to try their case without completing discovery. 

In Givens, this court reversed a Rule 41(b) dismissal with prejudice where the

litigant’s sole transgression was failing to comply with the discovery deadline. Id. The

court reasoned that dismissal with prejudice was disproportionate to this act of

noncompliance; instead, the appropriate sanction would be to disallow any further

discovery and move forward to trial on the evidence theretofore adduced. Id. at 263.

At the time that the instant case was dismissed in June 1996, however, appellant had yet

to produce fully records that appellees had requested in 1995. Further, appellant had yet

to be fully deposed by appellees despite the district court’s efforts to accommodate

appellant’s schedule. Thus, lesser sanctions such as forcing appellant to proceed to trial

without further discovery would have prejudiced appellees, not appellant. Consequently,

we hold that the district court did not abuse its discretion in concluding that lesser

sanctions would be ineffective and unjustified or in granting dismissal with prejudice.5

See First General, 958 F.2d at 206 (no harm in failing to consider lesser sanctions before

dismissal where lesser sanctions would have prejudiced defendant); Rogers v. Kroger

Company, 669 F.2d 317 (5 Cir. 1982) (“A clear record of

th

delay coupled with tried or futile lesser sanctions will

justify a Rule 41(b) dismissal with prejudice.”).
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III. Conclusion

In light of the foregoing, we hold that the district court did not abuse its discretion

in dismissing appellant’s action with prejudice on the ground that appellant’s conduct

constituted a wilful disregard of court orders. See First General, 958 F.2d at 206

(“Although dismissal with prejudice is a severe sanction, the court may impose such a

sanction where the plaintiff has engaged in a pattern of intentional delay.”); Burgs v.

Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (per curiam) (“Although a dismissal with

prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient

to warrant such action by the trial court.”). Accordingly, we affirm the judgment of the

district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH

CIRCUIT.