In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 05-3391

DONNA B. FISCHER,

Plaintiff-Appellant,

v.

CINGULAR WIRELESS, LLC,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 7629—Charles P. Kocoras, Chief Judge.

____________

SUBMITTED APRIL 6, 2006—DECIDED MAY 1, 2006

____________

Before BAUER, POSNER, and WOOD, Circuit Judges.

POSNER, Circuit Judge. This appeal from the dismissal

of a lawsuit because of the plaintiff’s failure to prosecute

it requires us to consider whether an explicit warning to the

plaintiff must always precede such a dismissal.

On November 23, 2004, Donna Fischer filed a suit pro se

against her former employer, Cingular, charging age and

sex discrimination. The district judge dismissed the case

without prejudice after Fischer failed to appear at the

first two status hearings that he had scheduled. She

moved to reinstate the case, claiming that she hadn’t
2 No. 05-3391

received notice of the hearings; and on April 21, 2005, the

district court vacated the dismissal and directed that

discovery be completed by August 22. The parties agreed to

exchange their Rule 26(a)(1) disclosures by May 20.

Cingular complied with the deadline. Fischer did not but

instead requested an extension of time to June 17, to which

Cingular agreed. Cingular also served Fischer with a

document request under Rule 34 and interrogatories

under Rules 26 and 33—all with a deadline of June 27 for

her responses—and a notice scheduling her deposition

under Rule 30(a)(1) for July 15. On June 25, Fischer told

Cingular that she would be unable to comply with the

June 27 deadline (she had still not complied with the June 17

deadline for the Rule 26(a)(1) exchange) but would comply

by July 1. When by July 11 Fischer still had not produced

either her Rule 26(a)(1) disclosures or her responses to the

discovery demands, Cingular moved the district court for

an order to compel her responses to its discovery requests

and command her “to agree to present herself for her

deposition on one of the following dates: July 20th, July

26th, August 1st, August 2nd, or August 3rd, or face dismissal

of this case for failure to prosecute” (emphasis added).

At an oral hearing on Cingular’s motion, Fischer tried

to excuse her failure to comply with the company’s discovery requests. But she entangled herself in contradictions,

first volunteering that her written responses were “partially

done” and that she “was putting [them] in the mail today,”

then acknowledging that she hadn’t been able to comply

“because I work six days a week” and later still “because I

had a [real estate] trial,” then returning to her first point: “I

was ready for my—ready to put it in the mail today.” She

told the court that she was prepared to be deposed on July

15 as agreed, but then she backtracked, saying that “we had
No. 05-3391 3

agreed on a Thursday for all of my depositions, and

[Cingular] did not give me Thursdays.”

The district judge rejected Fischer’s excuses and told

her “it is not a question of preparedness, it is a question of

doing.” Noting the inconsistencies in her explanations

and the fact that the case had been dismissed once before for

failure to prosecute, the judge now dismissed the case with

prejudice, precipitating this appeal. He did so without

warning Fischer that dismissal loomed, though Ball v. City

of Chicago, 2 F.3d 752, 760 (7th Cir. 1993), says there “must”

be such a warning, and Ball’s “must” was quoted in Aura

Lamp & Lighting, Inc. v. International Trading Corp., 325 F.3d

903, 907-08 (7th Cir. 2003); see also Williams v. Chicago Board

of Education, 155 F.3d 853 (7th Cir. 1998), while In re Bluestein

& Co., 68 F.3d 1022, 1025 (7th Cir. 1995) (per curiam), says

that the court “should” warn attorneys but “must” warn pro

se litigants, and Bolt v. Loy, 227 F.3d 854, 856-57 (7th Cir.

2000), that the court generally “should” warn but “must”

warn if the plaintiff’s failure to prosecute is due only to

ordinary misconduct. Most of our cases, however, soften

“must” to “should,” Harrington v. City of Chicago, 433 F.3d

542, 549 (7th Cir. 2006); Moffitt v. Illinois State Board of

Education, 236 F.3d 868, 873 (7th Cir. 2001); Kruger v. Apfel,

214 F.3d 784, 787 (7th Cir. 2000) (per curiam); Dunphy v.

McKee, 134 F.3d 1297, 1301 (7th Cir. 1998), or treat the terms

as interchangeable (as in Ball, Bluestein, and Williams), or

term the requirement of a warning merely the “general”

rule. Federal Election Comm’n v. Al Salvi for Senate Committee,

205 F.3d 1015, 1018 (7th Cir. 2000). Several of our cases (two

discussed in the next paragraph—plus Ball itself, the

original of the “must” requirement) are explicit that a

warning is not always required, as are a number of cases in

other circuits. Emerson v. Thiel College, 296 F.3d 184, 191 (3d

Cir. 2002); Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th
4 No. 05-3391

Cir. 2000); Rodgers v. Curators of the University of Missouri,

135 F.3d 1216, 1221 (8th Cir. 1998); Ehrenhaus v. Reynolds, 965

F.2d 916, 919, 921-22 (10th Cir. 1992).

Ball’s use of “must” was not intended to lay down a

rigid rule, as is clear from discussion elsewhere in the

opinion. 2 F.3d at 756. It was intended rather as a useful

guideline to district judges—a safe harbor to minimize the

likelihood of appeal and reversal. Ball differs only in tone

and nuance from the earlier discussion of the warning issue

in Johnson v. Kamminga, 34 F.3d 466, 468-69 (7th Cir. 1994),

where we said that “although district courts are encouraged

to warn litigants before dismissing a case for failure to

prosecute, whether they in fact do so is clearly within their

discretion. Lockhart v. Sullivan, 925 F.2d 214, 219 (7th Cir.

1991). Leaving the decision to the district courts ensures that

dilatory tactics are sanctioned appropriately. The prejudice

incurred by a delay in one case may far outweigh that

caused in another. Were district courts required to warn

litigants before dismissing a case, we would in effect be

granting each litigant one opportunity to disregard the

court’s schedule without fear of penalty regardless of the

harm done to other litigants. Such a rule would

impermissibly burden the district courts in their efforts to

manage their dockets. Using this standard, we held in

Lockhart that inconsistencies in the plaintiff’s excuse for not

attending a discovery-related status hearing combined with

the plaintiff’s record of dilatory conduct supported the trial

judge’s decision to dismiss the case with prejudice even

though he did not provide a warning beforehand.” Granted,

the facts in Johnson were more extreme than in this case, and

Kruger v. Apfel, supra, 214 F.3d at 787, sought to confine

Johnson; but it did not purport to overrule it.

Cingular’s request that the suit be dismissed if Fischer

continued to disregard discovery deadlines, the fact that the
No. 05-3391 5

judge had already dismissed the suit once for failure

to prosecute, and Fischer’s lame excuses at the hearing were

circumstances in light of which, given her dilatoriness, we

cannot say that the district judge abused his discretion in

dismissing the suit with prejudice the second time, even

though he had given no warning. See Williams v. Chicago

Board of Education, supra, 155 F.3d at 858-59. The first

point—Cingular’s request, communicated in a motion

served on Fischer, that the judge dismiss the case if she

continued to ignore discovery deadlines— deserves particular emphasis. The purpose of requiring a warning is not to

entrap district judges but to make sure that the plaintiff is

warned. The warning need not (despite a contrary suggestion in Kruger v. Apfel, supra, 214 F.3d at 788) always come

from the judge. This is a general principle of law, not

anything special to dismissals for want of prosecution. See,

e.g., United States v. Williams, 298 F.3d 688, 692-93 (7th Cir.

2002); Damerville v. United States, 197 F.3d 287, 289-90 (7th

Cir. 1999).

AFFIRMED.
6 No. 05-3391

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—5-1-06