*

The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of

Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0192p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

JOHN CARPENTER,

Plaintiff-Appellant,

v.

CITY OF FLINT; JACKIE POPLAR; and DAYNE

WALLING,

Defendants-Appellees.

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No. 12-2240

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:11-cv-10304—George C. Steeh, District Judge.

Decided and Filed: July 25, 2013 

Before: MOORE and GRIFFIN, Circuit Judges; SARGUS, District Judge.*

_________________

COUNSEL

ON BRIEF: F. Anthony Lubkin, Owosso, Michigan, for Appellant. Thomas L. Kent,

CITY OF FLINT, Flint, Michigan, for Appellees City of Flint and Dayne Walling.

Michael J. Gildner, SIMEN, FIGURA & PARKER, P.L.C., Flint, Michigan, for

Appellee Jackie Poplar.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant John Carpenter

(“Carpenter”) appeals the sua sponte dismissal with prejudice by the United States

District Court for the Eastern District of Michigan of this case arising out of Carpenter’s

termination as the Director of Transportation for the City of Flint. During the early

stages of the litigation, Carpenter’s counsel violated local filing rules several times and

1
No. 12-2240 Carpenter v. City of Flint et al. Page 2

failed to respond in a timely manner to a motion to strike portions of the complaint.

After five and a half months without docket activity, the district court dismissed the case

for failure to prosecute. Applying this court’s four-factor test governing review of

dismissals for failure to prosecute, we conclude that the district court abused its

discretion when it dismissed the case with prejudice. Accordingly, we REVERSE the

district court’s judgment and REMAND the case for further pretrial proceedings.

I. BACKGROUND

In January 2011, Carpenter filed a complaint in the Genesee County Circuit

Court in Michigan against Defendants City of Flint, City Councilwoman Jackie Poplar,

and Mayor Dayne Walling (together, “Defendants”) in connection with Carpenter’s

termination in September 2009 from his position as the Director of Transportation for

the City of Flint. R. 1-2 (Compl. ¶¶ 5, 8) (Page ID #8–9). Carpenter alleged that his

termination was the result of discrimination based on age and political affiliation in

violation of federal and state law. Id. ¶¶ 37, 43, 47, 49 (Page ID #13–16). Carpenter

also brought state-law claims for breach of contract, wrongful discharge, gross

negligence, defamation, and invasion of privacy. Defendants removed the case to

federal court on January 25, 2011, see R. 1 (Notice of Removal) (Page ID #1), and

subsequently filed a motion for a more definite statement and to strike. R. 4 (Defs.’ Mot.

for a More Definite Stmt. and to Strike) (Page ID #27). Defendants argued that the

complaint failed to identify which claims were being alleged against which defendants,

and that the allegations as a whole were “excessively esoteric, compound and

argumentative.” Id. at 2 (Page ID #28). The district court set February 16, 2011, as the

date by which Carpenter could respond to the motion to strike. R. 8 (Request for Resp.)

(Page ID #50). No response was filed by this deadline, and about five weeks after the

deadline, a joint stipulated order was entered, permitting Carpenter to file an amended

complaint by April 21, 2011, and ordering Defendants to withdraw without prejudice

their motion for a more definite statement and to strike. R. 10 (Stipulated Order at 3)

(Page ID #56).
No. 12-2240 Carpenter v. City of Flint et al. Page 3

Carpenter’s counsel manually filed an amended complaint on May 20, 2011, in

violation of Eastern District of Michigan Local Rule 5.1.1, which requires electronic

filing. E.D. Mich. Local Rule 5.1.1(a); see R. 11 (Am. Compl.) (Page ID #57).

Although the clerk’s office accepted the filing, it issued a notice of failure to comply to

Carpenter’s counsel, warning that “[s]anctions may be imposed if additional

violations occur after this date.” R. 12 (Notice of Failure to Comply) (Page ID #71).

Defendants renewed their motion to strike in June 2011. R. 13 (Defs.’ Mot. to Strike)

(Page ID #72). The motion argued that Carpenter’s complaint was “vague, ambiguous

and littered with argument and prolix,” and that “[t]he language used is overly rhetorical

and argumentative, and the allegations . . . are narrative, and in some cases,

nonsensical.” Id. at 3 (Page ID #74). After Carpenter failed to respond to the motion

within the time permitted by Local Rule 7.1(e), the district court issued an order to show

cause on July 5, 2011, why Carpenter’s complaint should not be stricken. R. 15 (Order

to Show Cause) (Page ID #78); E.D. Mich. Local Rule 7.1(e). Carpenter responded to

the show-cause order, but failed to abide by the local rules requiring electronic filing.

The filing was accepted by the clerk’s office, but a second notice of failure to comply

was issued. R. 17 (Notice of Failure to Comply) (Page ID #91). On October 5, 2011,

the district court entered a second order to show cause, noting counsel’s repeated

noncompliance with the local rules, and that counsel’s response “did not address the

[previous] order to show cause or explain the failure to file a response to the motion by

the deadline.” R. 18 (Order to Show Cause at 1–2) (Page ID #92–93).

Carpenter responded to the second show-cause order, explaining that technical

issues with the electronic filing system, destruction of office property, and family

medical issues caused the delay in counsel’s compliance with the local rules. See R. 19

(Pl.’s Resp. to Order to Show Cause at 1–4) (Page ID #94–97). The district court

dismissed both show-cause orders on October 17, 2011. R. 20 (Order Dismissing Show

Cause) (Page ID #102). The order stated that even Carpenter’s counsel’s most recent

filing was single-spaced, in violation of Local Rule 5.1(a)(2), and warned that “future

failure to comply with the Local Rules will not be tolerated.” Id. At this point,

Defendants’ motion to strike the amended complaint remained pending.
No. 12-2240 Carpenter v. City of Flint et al. Page 4

Four months later, on February 15, 2012, the district court denied without

prejudice Defendants’ motion to strike, finding that Defendants’ three-page motion and

accompanying brief consisting of three sentences did “not set forth a sufficient basis

upon which to grant their motion.” R. 21 (Dist. Ct. Order at 2) (Page ID #105). The

court found that the motion “d[id] not ‘point out the defects complained of and the

details desired’ as required by Rule 12(e) or identify the ‘redundant, immaterial,

impertinent, or scandalous matter’ the court should strike as provided in Rule 12(f).” Id.

(quoting Fed. R. Civ. P. 12(e)–(f)). The court also explained that Defendants’ motion

failed to comply with Local Rule 7.1(a), which requires that the moving party obtain

concurrence on the motion or make a statement in its motion that concurrence was not

reached. See id.; E.D. Mich. Local Rule 7.1(a).

There was no further docket activity until July 31, 2012, five and a half months

later, when the district court entered an order to show cause why the case should not be

dismissed for failure to prosecute. R. 22 (Order to Show Cause) (Page ID #107). This

order warned that “[f]ailure to respond may result in dismissal of the case.” Id. In

response, Carpenter’s counsel argued that although negotiations had begun regarding a

stipulation to file a second amended complaint, those negotiations had broken down.

R. 23 (Pl.’s Resp. to Order to Show Cause at 2–3) (Page ID #109–10). Carpenter’s

counsel asserted that the failure of negotiations prevented him from filing another

version of the complaint. Id. at 4 (Page ID #111). Defendant City of Flint (“Flint”) also

responded to the show-cause order, contending that Carpenter’s counsel “has failed to

cooperate in any manner to construct the proposed stipulation that would avoid the filing

of the motion [to strike].” R. 24 (Def. City of Flint’s Reply to Order to Show Cause at

2) (Page ID #116). Flint acknowledged that “in hindsight Defendant should have simply

filed the renewed motion weeks ago and takes responsibility for that delay.” Id.

On August 28, 2012, the district court dismissed the case with prejudice, and

judgment was entered in favor of Defendants. R. 26 (Order Dismissing Case) (Page ID

#135); R. 27 (Judgment) (Page ID #139). The district court’s dismissal was based on

Carpenter’s counsel’s repeated noncompliance with the local rules, his
No. 12-2240 Carpenter v. City of Flint et al. Page 5

uncooperativeness in negotiating a stipulation relating to a second amended complaint,

and his failure “to take appropriate actions to pursue the claims asserted in this case.”

R. 26 (Order Dismissing Case at 4) (Page ID #138). Carpenter timely appealed.

II. STANDARD OF REVIEW

We review for abuse of discretion a district court’s dismissal of an action for

failure to prosecute. Tung-Hsiung Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.

2005). “An abuse of discretion exists when the reviewing court is firmly convinced that

a mistake has been made.” Stough v. Mayville Cmty. Sch., 138 F.3d 612, 614 (6th Cir.

1998). We will find an abuse of discretion if the district court “relies on clearly

erroneous findings of fact, . . . improperly applies the law, or uses an erroneous legal

standard.” Id. Correspondingly, “[a] clear example of an abuse of discretion exists

where the trial court fails to consider the applicable legal standard.” Days Inns

Worldwide, Inc. v. Patel, 445 F.3d 899, 906 (6th Cir. 2006) (internal quotation marks

omitted).

III. ANALYSIS

It is well settled that a district court has the authority to dismiss sua sponte a

lawsuit for failure to prosecute. See, e.g., Link v. Wabash R.R. Co., 370 U.S. 626,

629–30 (1962); Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir. 1980).

Nonetheless, “[t]he dismissal of a claim for failure to prosecute is a harsh sanction which

the court should order only in extreme situations showing a clear record of contumacious

conduct by the plaintiff.” Wu, 420 F.3d at 643 (internal quotation marks omitted). In

Link, the Supreme Court stated that there was “no merit to the contention that dismissal

of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust

penalty on the client.” Link, 370 U.S. at 633. Although this principle—that generally

it is not unduly unfair to punish a client for his counsel’s errors—remains valid, “we

have increasingly emphasized directly sanctioning the delinquent lawyer rather than an

innocent client.” Coleman v. Am. Red Cross, 23 F.3d 1091, 1095 (6th Cir. 1994); see

Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir. 2001) (“[T]his Court has
No. 12-2240 Carpenter v. City of Flint et al. Page 6

1

Indeed, Carpenter’s counsel has continued his pattern of inflammatory language and

noncompliance with procedural filing rules. See Fed. R. App. P. 32(a)(5)(A) (requiring proportionally

spaced typeface in briefs to be 14-point or larger).

expressed an extreme reluctance to uphold the dismissal of a case merely to discipline

a party’s attorney.”). This is because dismissing a plaintiff’s case with prejudice

“deprives a plaintiff of his day in court due to the inept actions of his counsel.”

Patterson v. Twp. of Grand Blanc, 760 F.2d 686, 688 (6th Cir. 1985). Accordingly,

“[d]ismissal is usually inappropriate where the neglect is solely the fault of the attorney.”

Carter, 636 F.2d at 161.

Under this court’s precedent, we consider four factors when determining whether

dismissal for failure to prosecute was within the district court’s discretion:

(1) whether the party’s failure is due to willfulness, bad faith, or fault;

(2) whether the adversary was prejudiced by the dismissed party’s

conduct; (3) whether the dismissed party was warned that failure to

cooperate could lead to dismissal; and (4) whether less drastic sanctions

were imposed or considered before dismissal of the action.

Mulbah, 261 F.3d at 589. Although we acknowledge that Carpenter’s counsel’s conduct

in pursuing his client’s claims was inept, improper, and unprofessional,1

 applying the

four-factor test outlined above leads us to conclude that the district court abused its

discretion in dismissing the case with prejudice.

A. Willfulness, Bad Faith, or Fault

The first factor—whether the party’s failure is due to willfulness, bad faith, or

fault—requires “a clear record of delay or contumacious conduct.” Freeland v. Amigo,

103 F.3d 1271, 1277 (6th Cir. 1997). Contumacious conduct refers to behavior that is

“‘perverse in resisting authority’ and ‘stubbornly disobedient.’” Schafer v. City of

Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (quoting Webster’s Third New

International Dictionary 497 (1986)). The plaintiff’s “conduct ‘must display either an

intent to thwart judicial proceedings or a reckless disregard for the effect of [his] conduct

on those proceedings.’” Wu, 420 F.3d at 643 (quoting Mulbah, 261 F.3d at 591).
No. 12-2240 Carpenter v. City of Flint et al. Page 7

The conduct at issue here includes (i) repeated failures to abide by local rules

requiring filings to be double-spaced and submitted electronically; (ii) delays in

responding to Defendants’ motion to strike; (iii) failure, within a five-and-a-half-month

period, either to file a motion for default judgment after Defendants did not timely file

a responsive pleading or otherwise to move the litigation forward through stipulating to

a second amended complaint. These first two oversights—repeated noncompliance with

local filing rules and a delayed response to Defendants’ motion to strike—are less

egregious than the types of conduct that we have held reflect a clear record of

contumacious conduct warranting dismissal. Unlike other cases where we have affirmed

sua sponte dismissals, Carpenter and his counsel have not failed to appear at scheduled

pretrial conferences, see Rogers v. City of Warren, 302 F. App’x 371, 377 (6th Cir.

2008); Cotson v. Detroit Edison Co., 789 F.2d 377, 379 (6th Cir. 1986), nor have they

failed to respond to discovery requests, see Harmon v. CSX Transp., Inc., 110 F.3d 364,

368 (6th Cir. 1997), nor have they “acted in contempt of a court order compelling

cooperation with such requests.” Mulbah, 261 F.3d at 592.

Instead, the circumstances in this case are analogous to other cases in which we

held that dismissal with prejudice was an abuse of discretion. For example, in Patterson,

we reversed the district court’s dismissal with prejudice, even after counsel failed to

comply with procedural rules, failed to submit documents according to court-ordered

deadlines, failed to initiate any discovery, and submitted answers to interrogatories four

and a half months late. See Patterson, 760 F.2d at 687. Although the Patterson court

“sympathize[d] entirely with the district court’s frustration under the circumstances,” the

court concluded that it was an abuse of discretion to deprive the plaintiff of his day in

court. Id. at 689. Our past cases have distinguished between “mere dilatory conduct

involving a failure to file a specified document” and the more egregious problem of an

“attorney’s failure to appear on repeated occasions,” and we repeatedly have reversed

dismissals where the misconduct fell into the former, less egregious, category. Cotson,

789 F.2d at 379; see Mulbah, 261 F.3d at 592–93; Stough, 138 F.3d at 615 (“While a

pattern of this type of behavior [failing to timely file responses to motions] may be

sanctionable, it does not tax the court’s time in the same manner as failing to appear for
No. 12-2240 Carpenter v. City of Flint et al. Page 8

court conferences.”). Carpenter’s counsel’s delayed filings and violations of local rules

fall into the less egregious category, and accordingly, these infractions and missteps do

not demonstrate a clear record of contumacious conduct warranting dismissal with

prejudice.

The third indication of a failure to prosecute cited by the district court was the

period of inactivity on the docket. The district court faults Carpenter for the lack of

docket activity in the five-and-a-half-month period between February 15, 2012, when

the court denied Defendants’ motion to strike, and July 31, 2012, when the order to show

cause was entered. R. 26 (Order Dismissing Case at 3) (Page ID #137). Once the

Defendants’ motion to strike was denied, the operative pleading was the amended

complaint. Accordingly, the next stage in the litigation was for Defendants to file a

responsive pleading or another Rule 12 motion within fourteen days. See Fed. R. Civ.

P. 12(a)(4)(A). Defendants failed to file a responsive pleading, although there were

negotiations between the parties regarding filing a stipulation permitting Carpenter to

file a second amended complaint. See R. 24-2 (Feb. 27, 2012 Letter from City Attorney

Thomas Kent to Anthony Lubkin) (Page ID #120); R. 24-3 (Email Correspondence)

(Page ID #122–26). These negotiations apparently broke down, and each party blames

the other for a failure to communicate and finalize a proposed stipulation. Compare

R. 24 (Def. City of Flint’s Reply to Order to Show Cause at 2) (Page ID #116) (asserting

that Carpenter’s counsel stopped communicating with Defendants’ counsel regarding the

proposed stipulation), with R. 23 (Pl.’s Resp. to Order to Show Cause at 3–4) (Page ID

#110–11) (arguing that Flint failed to finalize the proposed stipulation during May and

June of 2012, and that Flint’s counsel failed to communicate with Carpenter’s counsel

during that time). We need not take sides regarding which party was more at fault

regarding the lack of cooperation. Both parties had the option of making the appropriate

filings to move the case along. Given Defendants’ failure to file a responsive pleading,

Carpenter could have filed a motion for default judgment or a motion for leave to amend

the complaint. See Fed. R. Civ. P. 15(a)(2), 55. As Defendants concede, they could

have refiled their motion to strike or filed a motion seeking a scheduling order regarding

the amended pleadings. See R. 24 (Def. City of Flint’s Reply to Order to Show Cause
No. 12-2240 Carpenter v. City of Flint et al. Page 9

2

It is worth noting that Carpenter was not in violation of any scheduling order; no pretrial

conference had been held under Rule 16(a), nor had a scheduling order been issued under Rule 16(b). See

Fed. R. Civ. P. 16; cf. García-Pérez v. Hosp. Metropolitano, 597 F.3d 6, 8 (1st Cir. 2010) (explaining that

the district court’s failure “to take an active role in case management,” including a failure to issue a

scheduling order or hold a pretrial conference, militated against dismissing the case with prejudice despite

lengthy delays by plaintiffs (internal quotation marks omitted)).

3

Other courts of appeals, considering the specific circumstances of particular cases, have reversed

dismissals for failure to prosecute after even longer periods of delay. See, e.g., García-Pérez, 597 F.3d

at 7–8 (reversing sua sponte dismissal with prejudice even after plaintiffs delayed three years in producing

expert report); United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 251 (2d Cir. 2004) (reversing

dismissal with prejudice despite plaintiff’s seventeen-month delay in filing amended complaint,

disagreeing with the district court “that the circumstances were sufficiently egregious . . . as to warrant

dismissal”); GCIU Emp’r Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1199–1200 (7th Cir. 1993)

(reversing dismissal even after a twenty-two month period of inactivity on the docket during which the

parties failed to apprise the district court that settlement negotiations were ongoing). The delay at issue

in this case is not nearly as long as the delays which the Supreme Court has held warrant dismissal. See

Link, 370 U.S. at 628 n.2, 633 (holding that dismissal was proper after, among other things, plaintiffs

delayed over eighteen months in responding to interrogatories); cf. Nat’l Hockey League v. Metro. Hockey

Club, Inc., 427 U.S. 639, 643 (1976) (holding that dismissal was proper sanction under Rule 37 where

respondents failed to answer interrogatories for seventeen months).

at 2) (Page ID #116). The district court sided with Defendants, and placed all of the

blame on Carpenter and his counsel.2 R. 26 (Order Dismissing Case at 3) (Page ID

#137).

Even assuming that Carpenter and his counsel were fully at fault for the lack of

docket activity for over five and a half months, we have found abuses of discretion in

other cases dismissed by district courts in which plaintiffs behaved similarly to

Carpenter and his counsel. For example, in Little v. Yeutter, there was a four-and-a-half

month period where plaintiff “had taken no discovery; filed no dispositive motions;

failed to request a hearing on this matter; and failed to respond to offers of compromise.”

984 F.2d 160, 161 (6th Cir. 1993). We reversed the district court’s dismissal for failure

to prosecute, concluding that although “it could be argued that [plaintiff] should have

done more,” there was only “minimal evidence of contumacious conduct.” Id. at 163.

Similarly, in Carter, we reversed a dismissal for failure to prosecute despite a delay of

over four months in which plaintiff’s counsel “failed to engage in discovery, to discuss

settlement, and to file appropriate pre-trial orders in a timely fashion as ordered by the

court.” Carter, 636 F.2d at 161. Despite the fact that plaintiff’s “attorney’s efforts . . .

were wholly insufficient,” we held that it was an abuse of discretion to dismiss the case

and deprive the “blameless” plaintiff of a trial.3

 Id. And in Kemp v. Robinson, this court

in an unpublished decision reversed a dismissal by a district court when plaintiff’s
No. 12-2240 Carpenter v. City of Flint et al. Page 10

counsel had waited nearly three years before filing a motion for default judgment against

defendants. 262 F. App’x 687, 691 (6th Cir. 2007) (explaining that “[w]hile it is

apparent from the record that Kemp’s attorney . . . could have been more diligent in

filing the motion for default judgment,” the record did not show that the attorney

“willfully h[e]ld up the proceedings to gain a tactical advantage”). Accordingly, while

Carpenter’s counsel could have done more between February and July either to stipulate

to amend the complaint or to file a motion for default judgment, we conclude that the

five-and-a-half-month period of delay does not establish the kind of contumacious

conduct or clear record of delay warranting dismissal. Thus, the first factor weighs

against dismissal.

B. Prejudice

The second factor to examine is whether Defendants were prejudiced by

Carpenter’s counsel’s conduct. Mulbah, 261 F.3d at 589. A defendant is prejudiced by

a plaintiff’s dilatory conduct if the defendant is “required to waste time, money, and

effort in pursuit of cooperation which [the plaintiff] was legally obligated to provide.”

Harmon, 110 F.3d at 368. Here, the district court did not make a finding that Defendants

have been prejudiced by Carpenter’s counsel’s noncompliance with local rules and fiveand-a-half-month period of inactivity, nor have Defendants provided any competent

evidence indicating such prejudice. Although on appeal Flint asserts that the delays will

make it difficult to secure relevant records and witnesses with sufficient memory of the

events at issue, these assertions are unsupported by any specific details or evidence.

This total lack of evidence of prejudice to Defendants weighs against dismissal. See

Carter, 636 F.2d at 161 (reversing the district court’s dismissal when there was “no

finding or evidence that defendant was prejudiced by plaintiff’s dereliction”). Nor do

we find persuasive Flint’s argument that its financial crisis should, in itself, amount to

prejudice warranting dismissal of the case. See Rogers v. Kroger Co., 669 F.2d 317, 322

(5th Cir. 1982) (holding that requiring a party to “expend funds necessary to present a

defense” does not amount to prejudice warranting dismissal).
No. 12-2240 Carpenter v. City of Flint et al. Page 11

A review of Defendants’ activity in this litigation also indicates that they have

not expended significant time or effort defending against Carpenter’s claims.

Defendants’ actions in response to the complaint were (i) filing two paltry and vague

motions to strike, each less than three pages in length; (ii) attempting to coordinate with

Carpenter’s counsel to create a stipulation for Carpenter to amend his complaint; and

(iii) responding to the district court’s show-cause order contemplating dismissal for

failure to prosecute. Defendants have yet to answer the complaint, file a substantive

dispositive motion, or engage in discovery activities. Defendants’ understandable

frustration with Carpenter’s counsel during the negotiations over amending the

complaint does not warrant a finding of prejudice. See Schafer, 529 F.3d at 739–40

(concluding that the prejudice factor weighed against dismissal when defendants made

only minimal efforts in response to the complaint); see also Crossman v. Raytheon Long

Term Disability Plan, 316 F.3d 36, 39 (1st Cir. 2002) (concluding that defendants’

“expense incurred in unsuccessfully attempting to communicate with [plaintiff] . . . . [is]

not unusual in the course of litigation and do[es] not rise to the level of prejudice

justifying dismissal”). Accordingly, there is nothing in the record demonstrating that

Defendants have wasted substantial time, money, or effort due to the uncooperativeness

of Carpenter’s counsel.

Further, Defendants bear at least some of the blame for the pre-discovery delays

in this case. The district court properly denied their second motion to strike: the motion

and its accompanying brief, which together comprise only a few paragraphs, did “not set

forth a sufficient basis upon which to grant their motion.” R. 21 (Dist. Ct. Order at 2)

(Page ID #105). Additionally, Defendants did not comply with Local Rule 7.1(a) when

they filed their motion, because they did not make a statement explaining whether

concurrence on the motion was sought or achieved. See id.; E.D. Mich. Local Rule

7.1(a). Defendants also acknowledge that when negotiations over the stipulation

regarding the second amended complaint broke down, they could have filed another

motion to strike. R. 24 (Def. City of Flint’s Reply to Order to Show Cause at 2) (Page

ID #116). Alternatively, they could have moved to dismiss, asked for a pretrial

conference, or moved for dismissal under Rule 41. Defendants explicitly “t[ook]
No. 12-2240 Carpenter v. City of Flint et al. Page 12

responsibility for [the] delay” relating to the period after the motion to strike was denied.

See id. Accordingly, the prejudice factor weighs against dismissal. Mulbah, 261 F.3d

at 592 (stating that dilatory conduct on the part of defendants weighed against a finding

of prejudice); Carter, 636 F.2d at 161 (concluding that the fact that the defendant “did

not move for dismissal on the ground of plaintiff’s noncompliance” militated against a

finding of prejudice).

C. Notice

The third factor to consider when determining whether the district court abused

its discretion in dismissing a case for failure to prosecute is “whether the dismissed party

was warned that failure to cooperate could lead to dismissal.” Mulbah, 261 F.3d at 589.

The district court first cites two notices of failure to comply that were issued following

Carpenter’s counsel’s attempts manually to file documents. R. 26 (Order Dismissing

Case at 1–2) (Page ID #135–36). These notices stated that “[s]anctions may be

imposed if additional violations occur after this date.” R. 12 (Notice of Failure to

Comply) (Page ID #71); R. 17 (Notice of Failure to Comply) (Page ID #91). This kind

of boilerplate language, which does not explicitly identify dismissal as a sanction, is not

the type of notice sufficient to apprise a party of the possibility of dismissal. See

Freeland, 103 F.3d at 1279 (“[T]his court has held that routine language in a standard

order, warning counsel of possible dismissal as a sanction for failure to comply with any

of the provisions of the order, is not necessarily sufficient prior notice to immediately

warrant the extreme sanction of dismissal.”).

We also note that once Carpenter responded to the first two orders to show cause,

resulting in the dismissal of those orders, Carpenter could not have anticipated

reasonably that further action was needed to respond adequately to the court’s request.

See Wu, 420 F.3d at 644 (holding that a show-cause order was “insufficient to provide

notice that the case might be dismissed” after the plaintiff had responded to the order and

“[t]he district court did not notify the parties that the response was inadequate or that any

further action was required”). Accordingly, although the first two orders directed

Carpenter to show cause “why plaintiff’s complaint should not be stricken and this case
No. 12-2240 Carpenter v. City of Flint et al. Page 13

should not be dismissed,” R. 18 (Order to Show Cause at 2) (Page ID #93), once those

orders were dismissed, there was no longer adequate notice that dismissal was being

contemplated.

Nonetheless, this factor weighs in favor of dismissal, because Carpenter’s

counsel received two other warnings that his failure to comply with the local rules would

result in sanctions. After Carpenter’s counsel filed a single-spaced response to the

second order to show cause, in violation of Local Rule 5.1(a)(2), the district court

“warn[ed] plaintiff that future failure to comply with the Local Rules will not be

tolerated.” R. 20 (Order Dismissing Show Cause at 1) (Page ID #102). Further, before

ordering dismissal sua sponte, the district court issued a third order to show cause that

warned Carpenter that “[f]ailure to respond may result in dismissal of the case.” R. 22

(Order to Show Cause) (Page ID #107). At this point, Carpenter was sufficiently on

notice that failure to follow the rules or to respond to the show-cause order might result

in dismissal.

D. Alternative Sanctions

We have held that “‘[t]he sanction of dismissal is appropriate only if the

attorney’s actions amounted to failure to prosecute and no alternative sanction would

protect the integrity of the pretrial process.’” Wu, 420 F.3d at 644 (quoting Mulbah,

261 F.3d at 589) (emphasis in original); see also Consolidation Coal Co. v. Gooding,

703 F.2d 230, 232–33 (6th Cir. 1983) (“‘[D]ismissal with prejudice is warranted only

where . . . a lesser sanction would not better serve the interests of justice.’” (quoting

Gonzales v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980))); Charles

Alan Wright et al., 9 Fed. Practice & Proc. Civil § 2369 (3d ed.) (“[T]he federal courts

have held fairly consistently that, except in extreme circumstances, a court should first

resort to the wide range of lesser sanctions that it may impose upon a litigant or the

litigant’s attorney, or both, before ordering a dismissal with prejudice.”). Alternative

sanctions may include “levying a fine, barring [counsel] from participating in oral

argument, or any other disciplinary action,” even dismissal without prejudice. Mulbah,

261 F.3d at 593. Although a district court in extreme cases has the power to dismiss
No. 12-2240 Carpenter v. City of Flint et al. Page 14

with prejudice as the first and only sanction, “where the district court has not manifested

consideration of less drastic sanctions, it is more difficult, although not impossible, for

this court to conclude that the district court exercised its discretion with appropriate

forethought.” Harmon, 110 F.3d at 368–69.

In this case, although the district court admonished Carpenter’s counsel several

times for his failure to comply with local filing rules, the court did not impose any

sanction short of dismissal for the past violations. For example, the district court could

have imposed a fine on Carpenter’s counsel, imposed other disciplinary measures on

Carpenter’s counsel, or even dismissed the case without prejudice. We acknowledge

that the district court had good cause to impose some sanction on Carpenter or his

attorney, given the continued violations of the local filing rules. See Bradenburg v.

Beaman, 632 F.2d 120, 122 (10th Cir. 1980) (explaining that “[i]t is incumbent on

litigants” to follow local rules of procedure). Although counsel has a clear obligation

to familiarize himself with a district court’s local rules and to follow them, we conclude

that an alternative sanction placed on Carpenter’s counsel would have been more

appropriate before dismissing Carpenter’s complaint with prejudice and depriving

Carpenter of his day in court. See Wu, 420 F.3d at 644–45; Mulbah, 261 F.3d at 593–94.

Accordingly, this factor weighs against dismissal.

In sum, despite Carpenter’s counsel’s improper conduct in this case, the

violations of local filing rules combined with a five-and-a-half-month delay in filing a

motion for default judgment do not warrant depriving Carpenter of a chance to have his

claims adjudicated on the merits. There has been no finding that Defendants have been

prejudiced by this delay, and no lesser sanctions were imposed prior to the extreme

sanction of dismissal of the case with prejudice. We conclude that the district court

abused its discretion in dismissing Carpenter’s complaint with prejudice.

IV. CONCLUSION

For the foregoing reasons, we REVERSE the judgment of the district court and

REMAND for further proceedings consistent with this opinion.