The Honorable Scott O. Wright, United States Senior Dis trict 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 pre judice pursuant to Rule 41(b) of the Federal Rules 1-2-

of Civil Procedure for failure to prosecute and follow court orders, and awardin g attorneys’ fees in favor of The Curators of the University of Missouri, Charles Geiss, James Parker, Ray Dockweiler, Je nice 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 san ctions 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 o f appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.
II. Background

The follo wing facts are derived from the findings of the district court and th e record on appeal. On May 14, 1989, appellant, then a student at the University o f Missouri at Columbia (“University”), was in an automobile accident in which h e suffered serious head injuries. Upon returning to the University in 1990, Rodger s 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 cla imed that the University neglected his needs and failed to provide th e accommodations that he requested or, alternatively, provided inadequat e accommodations. On June 10, 1996, the district court dismissed appellant’s actionAppellant does not appeal the district court’s award of attorneys’ fees. 2
T he parties had previously agreed to complete appellant’s deposition after the close o f 3 di scovery in order to accommodate a scheduling conflict between appellant and his then-curren t counsel. Accordingly, the district court scheduled appellant’s deposition for April 15, 1996

. However, as this date did not comport wi th appellant’s schedule, the deposition was rescheduled for April 22, 1996, in Kansas City, Missouri. -3- withprejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, an d awarded attorneys’ fees in favor of appellees. 2

The circumstances which occasioned the district court’s dismissal occurred over
a two-yea r period (following the filing of appellant’s complaint) in which appellan t repeatedly disregarded o rders 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 unsuccessfull y fr om appellant since 1995. Instead, appellant sporadically produced selecte d documents, some of which were not produced until March 29, 1996 , the day of th e heari ng on the district court’s order to show cause why the action should not b e dismissed for appellant’s violation of discovery orders.
Second, appellant failed to appear at a properly-noticed, court-ordere d deposition. On April 12, 1996, appellee s informed the district court that appellant had been only partially deposed and certain aspects of the litigation req uired further inquiry. The dis trict 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 prohibiti ng him from firing his fourth set of counsel. Specifically, during a scheduling conference on October 5, 1995, th e district court forewarned appellant via his then-current counsel, Lynn Bratcher, that his-4-

case would be dismissed with prejudice if he should fire her. The followin g exchange occurred:

THE COURT: If this guy fires you Lyn n [Brat cher], I’m going to dismiss his case wit h prejudice.
MS. BRATCHER: Okay. I understand that, You r Honor. THE COURT: You better tell him that.
MS. BRATCHER: Okay. I understand that, You r Honor.

Joint Appendix (“J.A.”) at 119 (District Court Order o f June 10, 1996 (“Order”), at 3 (citing Transcript o f Telepho ne Conference of Oct. 5, 1995, at 8)). Bratche r sub sequently informed appellant in writing that he r withdrawal would trigger the dismissal of his case with prejudice

. Specifically, Brat cher wrote: “[Judge Wright] said that if your lawyer s withdraw a gain, he will dismiss the case with prejudice. I just w ant you to be aware of that.” J.A. at 21 3 (Exhibit E of Motion to Reconsider, Letter from Bratcher to appellant of Oct. 6, 1995, at 1). Despite this warning, on April 21, 1996, appell ant fired Bratcher. By that time, fourset s of counsel had withdrawn and been replaced as attorneys-of-record i n appellant’s suit. As a result of these changes in counsel and the new issues raised in appellant’s amended comp laints, 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 o n 4 September 13, 1995. However, the district court declined to rule on that motion. -5- On April 29, 1996, appellees moved to dismiss appell ant’s action with prejudice pursuant to Federal Rule of Civil Procedure 41(b). The next day, appellant obtained 4-6-

his fifth and current set of counsel. On June 10, 1996, the district court grante d appellees’ motion, finding that appellant had deliberately violated court orders an d eng aged in dilatory conduct, that appellant’s conduct had prejudiced appellees b y inhibiting their preparation for trial and compelling the expenditure of scarc e educational resources, that the imposition of lesser sanctions would be ineffective and unjustified, and that appellant ’s conduct was conscious, intentional, taken deliberately fortactic al gain, and had the effect of attacking the integrity of the court. Mor e specifically, the district court found that a ppellant was dila tory in his prosecution of the case based on hi s filing a second amended complaint, which significantl y expa nded the scope of the litigation, and his repeate d change of counsel. J.A. at 119-20 (Order at 3-4).

On June 25 , 1996, appellant filed a motion for reconsideration of the distric t court’s order of dismissal. Appellant’s motion was denied on July 15, 1996. Thi s appeal followed.

II. Discussion

A. Standard of Review
Rule 41(b) of the Federal Ru les 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 reviewi ng under this standard, this th court emplo ys a balancing test that focuses foremost upon “the degree of egregiou s conduct which prompted the order of dis missal and to a lesser extent upon the adverse-7-

impact of such conduct upon both the defendant and t he 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, t he 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. Loui s th Music Supply Co., Inc., 539 F.2d 1191, 1194 (8th Cir. 1976) ( Moore ) ).
“Dismissal with prej udice is an extreme sanction and should be used only in cases of wilful disobedience of a court order or . . . persistent failure to prosecute a comp laint.” Givens , 751 F.2d at 263 (emphasis added)

. Thus, where, as here, a case has been dismisse d with prejudice, this court considers “whether in the particular circumstances of the case the need s of the court in advancing a crowded docket and preserving respect f or the integrity of its internal procedures are suffi cient to justify the harsh consequences of forever denying a litigant his day i n court.” Moore , 539 F.2d at 1193

. However, the district court nee d not ha ve found that appellant acted in bad faith, onl y that he acted intentionally as opposed to acc identally or invo luntarily. E.g. , Welsh v. Automatic Poultry Feede r Co. , 439 F.2d 95, 97 (8th Cir. 1971).

The district court’s determination that appellan t wilfully disregarded court orders and engaged i n inte ntional delay is a finding of fact, and hence i s subject to the clearly erroneous standard of review. See Fed. R . Civ. P. 52(a). The clearly erroneous standar d applies “even when the district court’s findings do no t rest on credibility determinations, but are b ased instead
on p hysical or documentary evidence or inferences fro m other facts.” Anderson v. City of Bessemer City , 47 0 U.S. 564, 574 (1985) ( Anderson ); see Fed. R. Civ. P

. 52(a). Thus, we may not overturn the district court’ s-8-

fact ual findings merely because we might have conclude d differentl y had we initially decided the issue. Rather,
a fi nding is clearly erroneous only when, “even thoug h th ere is evidence in the record to support it, th e reviewing court is left with a-9-

de finite and firm conviction that a mistake has bee n committed.” Anderson , 470 U.S. at 573. B. Analysis
Appellant argues that the district court abused it s disc retion in dismissing his action with prejudice an d thereby pe rmanently barring him from pursuing his claims against appellees. Specifically, Rodgers charges tha t dismissal was inappropriate because the court’s decision
was b ased, in part, on the erroneous finding that hi s conduct was wilful. In addition, Rodgers arg ues that the district court abused its discretion in faili ng to impose less er sanctions prior to dismissing the action wit h prejudice.
The record in the in stant case contains instances in which appe llant both wilfully violated court orders and, appa rently, accidentally disregarded them. In light o f the e vidence of appellant’s acts of intentiona l noncomplia nce, we find that the district court’s finding of wilfulness is not clearly erroneous.

For example, appellant failed to comply with th e district c ourt’s March 29, 1996 order to produce certain fina ncial records. Appellant argues that he timel y deli vered these documents to his own counsel of recor d and tha t any delay in their production to appellees wa s the fault of his counsel and therefore unintentional

. However, t his argument fails for two reasons. First, by virt ue of his agency relationship with his attorneys , appellant is generally bound by the actions ( or inaction) of his attorney when his attorney acts in he r-10-

repr esentational capacity. See, e.g. , Link v. Wabas h R.R. , 3 70 U.S. 626, 633-34 (1962) (holding that, wit h respect to attorney misconduct that leads to Rule 41(b ) dismis sals, “each party is deemed bound by the acts o f his [or her] lawyer-agent.”); Omaha Tribe , 933 F.2d a t 1471 (“It is unfortunate in a case such as this that the client must live or die by the conduct of its counsel.”). Seco nd, appellant has proffered no evidence t o substantiate his allegation that he timely produced the-11-

subj ect documents to his then-current counsel who the n failed to turn them over to appellees. Accordingly, w e do not find that the district court erred in concludin g that appellant’s derogation of the order to produce th e subject documents was intentional and deliberate

. Moreover, although appellant proffered testimony that he
was unawar e that certain documents were within the scope of the order, this court does not find that thi s test imony is sufficient to prove that the distric t court ’s finding that appellant wilfully violated thi s order is erroneous.
Similarly, the district court’s finding tha t appellant intentionally violated the district court’ s Octo ber 5, 1995 order against firing his then-curren t coun sel was not erroneous in light of appellant’ s aware ness of the order and his prolonged history o f diff iculty in retaining counsel. See Grunewald v

. Missouri Pac. R.R. Co. , 331 F.2d 983 (8th Cir. ) (aff irming dismissal where trial was postponed afte r plaintiff’s original counsel withdrew, trial was agai n post poned when plaintiff failed to retain new counse l until e ve of reset trial date, and new counsel withdre w on e ve of trial), cert. denied , 379 U.S. 839 (1964)

. Appe llant argues that he did not understand Bratcher’ s charact erization of the October 5, 1995 order to mea n that firing his counsel would trigger dismiss al. Rather, appellant contends that there is a meaningful distinction betw een proscribing the “firing” of one’s counsel an d pros cribing their “withdrawal”, and that the orde r pro scribed the latter only. We are of the opinion , howe ver, that appellant’s argument is based upon a di stinction without a difference. It is clear that ,-12-

whether an attorney is fired or elects to dis continue her
re presentation of a client, she must withdraw as th e atto rney of record in the underlying suit. Bratcher’ s lett er made clear that her withdrawal from the instan t case , presumably under any circumstance, would be caus e for dismissal.

Moreover, the particular facts of the instant cas e suggest that appellant clearly understood what happen s when counsel withdraws from a case. Appellant’s firs t atto rney, David Steelman, withdrew and was replaced a s counsel of record in November 1994. His seco nd attorney, Edward Clausen, withdrew and was replaced-13-

as counsel of record in August 1995. His thi rd attorney, Rich ard Crites, withdrew on September 13, 1995, citin g that appel lant had requested him to engage in borderline unet hical conduct. Crites was replaced by appellant’ s four th attorney, Lynne Bratcher, on September 26, 1995 , who was replaced by appellant’s current counsel, To m Jones a nd Bryan Round, on April 30, 1996. In each o f thes e instances, regardless of what precipitated th e attorney’s withdrawal, that attorney ultimately withdrew
as co unsel of record. That Bratcher’s letter did no t distinguish “firing” from voluntary withdrawal is thu s inc onsequential because the end result is th e same–Bratcher withdrew from the case.
Furthermore, where, as here, there is evidence tha t app ellant’s dilatory conduct and disregard of cour t orders continued over a two-year period, a miscommunicated warning threatening dismissal will no t compel reversal. Indeed, while a warning from th e district court that a particular litigant is skating o n the thi n ice of dismissal is encouraged, see First Gen

. Resourc es Co. v. Elton Leather Corp. , 958 F.2d 204, 20 6 (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 cir cuit has yet to hold that such an admonition is necessary to sustai n a Rule 41(b) dismissal and declines to so hold now.
Ap pellant also challenges the district court’s finding that appellant wilfull y disobeyed its order to attend a scheduled deposition. Appellant contend s that the deposition was not properly noticed and thus his fail ure to attend it cannot be deemed wilful

. Specifically, appellant maintains that his attorney di d-14-

not inform him about the deposition and that appellee s impr operly sent a notice of the deposition directly t o 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 dir ect conflict with the district court’s finding that appel lant’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

.-15-

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

ejudice was appropriate when plaintiff failed to comply with court-ordered depositi on) , cert. denied , 513 U.S. 1090 (1995) ( Aziz ) . Accordingly, we accept the district court’s finding that notice was proper an d that defendant’s conduct was wilful.

The record also supports the district court’s finding that appellant wilfull y delaye d his litigation against appellees, to the extent that appellant changed counse l 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, 199 6 court-ordered deposition, at which he failed to appear. Appellant maintains that appellees also contributed to the delay in th e proceedings by requesting trial and discovery extensions. Appellant therefore argues that the district court erred in considering these extensions as a basis fo r dismissal. Moreo ver, appellant contends that the time extension s that are attributable to him were requested by hi s counsel and thus should not affect the dispos ition of his
case . The record suggests, however, that these delay s we re 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 o f wilful conduct was not clearly erroneous, we will no t re verse its selection of a sanction unless the cour t abused its discretion. Moreover, because a distri ct court may dismiss a case for any violation of a court o rder, Brown , 806 F.2d at 803, and there is evidence of severa l intentional acts of delay, we affirm.-16-

While we agree with appellant that the instant case does not approach the most egregi ous 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,-17-

however inexcusable, justifies total extinction of a cl ient’s cause of action,” Givens , 751 F.2d at 263, dismissal with prejudice is not subject to reversal here where appellant has enga gedin 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,
uns ubstantiated 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 appell ant’s conduct any less wilful or sanctionable for purposes of this analysis. Appellant was given ample opportunities to explain or cure his v iolations of discovery orders and the delay prejudiced appellees. Cf. Jackson v

. Sch oemehl , 788 F.2d 1296, 1299 (8th Cir. 1986) (reversing dismissal with prejudic e despite plaintiffs’ failure to file proposed findings of fact and conclusions of law for two years because court gave plaintiffs no oppor tunity 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 di sabilities secondary to traumatic closed head injuries suffered in an automobil e accident th at nearly took his life” and that the district court’s finding that appellant’ s ac tions were “wilful and deliberate and taken deliberately to gain tactical advantage ” igno res this fact. Upon careful examination of the record, however, we find no evidence tha t appellant’s injuries contributed to his acts of noncompliance so as to render them involuntary o r 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 lesse r 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 cour t to believe that appellees’ Rule 41(b) motion would not be granted because the underlyin g procee dings were not stayed pending resolution of that motion. We fail to see any basis fo r appellant’s assumption and reject this argument on appeal as meritless. -18- Herring v. Whitehall , 804 F.2d 464, 468 (8th Ci r. 1986); cf. Givens , 751 F.2d at 263-64 (reversing dismissal with prejudice where lesser sanctions were ava ilable). In the instant
ca se, 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 whic h appella nt relies, any lesser sanction would have involved further delay or force d appellees to try their case without completing discovery.

In Givens , this court reversed a Rule 41(b) dismissal with prejudice where th e litigant’s sole transgression was failing to comply with the discovery deadline. Id. The
cou rt reasoned that dismissal with prejudice was disproportionate to this act o f noncompliance; instead, the appropriate sanction would be to disallow any furthe r discover y and move forward to trial on the evidence theretofore adduced. Id. at 263

. At the time that the instant case was dismissed in Ju ne 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 accommodat e 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 lesse r sa nctions 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 consi der 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 o f th dela y coupled with tried or futile lesser sanctions wil l justify a Rule 41(b) dismissal with prejudice.”).-19- 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 conduc t
con stituteda wilful disregard of court orders. See First General , 958 F.2d at 20 6 (“Although dismissal with prejudice is a severe sanction, the court may impose such a sanction whe re the plaintiff has engaged in a pattern of intentional delay.”); Burgs v

. Sissel , 7 45 F.2d 526, 528 (8th Cir. 1984) (per curiam) (“Although a dismissal with preju dice 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, EIGHT H CIRCUIT.