Adrianna Brown v. Columbia Sussex C , 664 F.3d 182 ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3849
A DRIANNA B ROWN, et al.,
Plaintiffs-Appellants,
v.
C OLUMBIA S USSEX C ORPORATION, et al.
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:08-cv-00107—Philip P. Simon, Chief Judge.
A RGUED S EPTEMBER 22, 2011 —D ECIDED D ECEMBER 15, 2011
Before P OSNER, F LAUM, and SYKES, Circuit Judges.
F LAUM , Circuit Judge. The underlying litigation in
this case concerns a host of plaintiffs-appellants’ civil
rights and breach of contract claims against defendants-
appellees—the owners of Baton Rouge Marriott and an
individual employee of the Marriott (collectively,
“Marriott”) . Throughout the pre-trial discovery of this
litigation, 224 of the 268 plaintiffs continually missed both
2 No. 10-3849
formal and informal deadlines.1 As a result, all but 44 of
the plaintiffs had their claims dismissed by the district
court as a discovery sanction pursuant to Fed.R.Civ.P. Rule
37(b). Appellants constitute 53 of the 224 unattentive plain-
tiffs.2 For the reasons set forth below, we affirm the district
court’s dismissal of appellants’ claims.
I. Background
For 20 years, appellant James Piggee and his organization
Giving Education Meaningful Substance (“G.E.M.S.”) has
been taking groups of African American high school
students on tours of historically black universities to
make them more aware of their academic opportunities.
In April 2008, Piggee planned a trip to Louisiana and Texas
for a group of somewhere between 149 and 268 students.
In preparation for that trip, Piggee reserved 41 rooms at
the Marriott in Baton Rouge. A day or two later, Marriott
canceled the reservation. Appellants allege that Marriott’s
decision to cancel was racially motivated. As a result of
the cancellation, appellants did not have a place to stay
in Baton Rouge and had to drive through the night to
their next destination in Texas.
1
Despite the numerosity of the plaintiffs, no claims were
brought as a class action.
2
Originally, all 224 of the dismissed plaintiffs were part of the
appeal currently before this court. While the appeal was
pending, however, appellants’ counsel filed a motion to volun-
tarily dismiss 171 of the appellants after discovering that
they should not have been a part of the case to begin with.
No. 10-3849 3
Based on these allegations, Piggee filed suit in the
Northern District of Indiana for himself, the students, and
the chaperones that attended the April 2008 trip. In
December 2009, Marriott served extensive discovery
requests on all 268 plaintiffs, including requests for
the production of documents, responses to interrogatories,
and responses to Fed.R.Civ.P. Rule 36 requests for admis-
sion. In January 2010, appellants asked for their
first extension. They initially asked Marriott for a 45-day
extension, but before receiving a response, they requested
a 60-day extension from the court, which was granted
without objection. The new deadline of March 29, 2010
came and went without any production or response
from appellants. On April 6th, Marriott wrote a letter
to appellants’ counsel asking when to expect a response
to the discovery requests, but received no answer. Appellee
sent another letter requesting production on April 13th,
and in response to this second letter, appellants emailed
Marriott requesting an extension until May 31, 2010.
The third deadline once again passed with no response
from appellant.
On June 16, 2010, five months after the original discovery
deadline, Marriott filed a motion to compel a response to
discovery. The district court granted the motion with
respect to the interrogatories and document requests, but
noted that requests for admission cannot be compelled
as these requests are deemed admitted after 30 days of
no response. The court ordered that appellants respond
to discovery requests by July 16, 2010. On the date of
the fourth deadline, appellants filed a Motion for Extension
of Time, seeking an extension to July 23, 2010. The
4 No. 10-3849
court did not grant the motion because of technical prob-
lems with appellants’ motion. Thus, for a fourth time,
appellants did not meet their deadline. As a result,
Marriott filed a motion for sanctions and contempt, seek-
ing dismissal and payment for Marriott’s expenses,
including attorney’s fees.3 The court declined to dismiss,
but granted Marriott’s request for expenses as a
sanction against appellants. The court also granted appel-
lants’ second Motion for Extension of Time, giving
them until August 17th to comply with the court’s or-
der. This extension was granted in part because of plaintiff-
counsel’s representations that he was a sole practitioner,
that he only had one administrative assistant, that he
had been working round-the-clock to comply with the
court’s orders, and that he had interviewed a law firm
to help with the discovery requests. In granting appel-
lants’ motion, the district court made clear that this was the
“final extension” that would be granted, and that further
requests would be “viewed with disfavor.” In addition, a
magistrate judge’s Findings, Report, and Recommendation
regarding Marriott’s motion for sanctions listed the court’s
3
Shortly after filing their motion for sanctions, Marriott also
filed a motion for summary judgment based on the requests for
admission, which were deemed admitted due to appellants’ lack
of a response. When the district court dismissed the claims of the
appellants before this court, it also granted a motion to with-
draw default admissions by the plaintiffs whose claims were not
dismissed by the court (and are therefore not before this court
on appeal). Due to the withdrawal of the default admissions, the
summary judgment motion was rendered moot.
No. 10-3849 5
sanctioning options if appellant failed to respond to
discovery. These options included the possibility of
dismissal.
For the fifth and final time, appellants failed to meet their
discovery deadline. On August 20, 2010, Marriott filed
another motion for contempt and sanctions, naming over
200 plaintiffs that had not yet responded to the appellees’
discovery requests. In plaintiff-counsel’s September 27th
response to this motion, he indicated that 60 plaintiffs
had responded to the discovery requests and that he
had not received a response from the others. He also
sought class certification due to the unmanageability of
the discovery requests. During oral arguments for that
motion, plaintiff-counsel acknowledged that he had only
communicated with roughly 75 to 100 of the plaintiffs,
which led the district court to concluded that the majority
of the plaintiffs may not have even been aware that the
suit had been filed on their behalf.
On November 10, 2010, in its ruling on Marriott’s motion
for sanctions, the district court concluded that the
Fed.R.Civ.P. 37(b) sanction of dismissal was necessary in
the face of appellants’ willful delay and avoidance
of Marriott’s requests for discovery. The district court
based this decision on appellants’ pattern of delay and
non-compliance, which included the following actions
or omissions: 1) appellants’ disregard of two of the court’s
orders to compel discovery; 2) appellant’s lack of response
when faced with the less severe sanction of payment
of defendants’ expenses; 3) appellants’ lack of a
showing that additional sanctions would be effective
6 No. 10-3849
in forcing them to comply with the court’s orders;
4) plaintiff-counsel’s lack of communication with the
majority of the plaintiffs; and 5) plaintiff-counsel’s lack
of secured co-counsel, which, the court noted, would be
a difficult task given the posture of the case at the time
of dismissal.
On December 10, 2010, appellants filed their notice of
appeal from the district court’s decision to dismiss their
claims. Our preliminary review of appellants’ appeal
indicated that the district court’s order may not have
been a final judgment under 28 U.S.C. § 1291 4 (“§ 1291”),
and on December 21, 2010, we ordered appellants to file
a Jurisdictional Memorandum, due on January 4, 2011.
One day before the deadline, appellants returned to
the district court and filed a motion requesting an entry
of final judgment pursuant to Fed.R.Civ.P. Rule 54(b)
and 58(d).5 The next day —the due date for the Jurisdic-
tional Memorandum —appellants filed a motion entitled
“Routine Motion For An Extension of Time to File Jurisdic-
4
Section 1291 states, “The courts of appeals . . . shall have
jurisdiction of appeals from all final decisions of the district
courts of the United States.”
5
Rule 54(b) states that if an action contains more than one claim
for relief—through either multiple claims from one party,
multiple parties to a claim, or both —"the court may direct entry
of a final judgment as to one or more, but fewer than all, claims
or parties only if the court expressly determines that there is no
just reason for delay.” Fed. R. Civ. P. 54(b). Rule 58(d) allows a
party to request that a Rule 54(b) judgment be set out in a
separate document. Fed. R. Civ. P. 58(d).
No. 10-3849 7
tional Memorandum,” which was granted. On January 7,
2011, the district court granted appellants’ Rule 54(b)
motion, finding that appellants’ claims are separate from
the claims of the remaining plaintiffs, the decision dismiss-
ing appellants’ claims is final, and there is no just reason
for delay. A final judgment was therefore entered.
Appellants subsequently filed their Jurisdictional
Memorandum with this court, which advised the court
of the case’s procedural history and concluded that the
district court’s Rule 54(b) motion rendered the jurisdic-
tional question moot. The next day, this court issued
an order stating, “On consideration of the ‘JURISDIC-
TIONAL STATEMENT’ filed by plaintiffs-appellants
on January 11, 2011, IT IS ORDERED that briefing will
proceed.”
II. Discussion
A. Jurisdiction
Before we turn to the relatively straight forward
matter of the propriety of appellants’ dismissal, we must
address Marriott’s assertion that we lack jurisdiction
to decide this appeal in the first place. Whether we
have jurisdiction depends on the interaction between
three statutory rules: Congress’ conferral of jurisdiction
on this court under § 1291, Rule 54(b) of the Federal Rules
of Civil Procedure (“Rule 54(b)”), and Rule 4(a) of the
Federal Rules of Appellate Procedure (“Rule 4(a)”).
To start, § 1291 generally limits our jurisdiction to
the review of only “final decisions” of the federal district
8 No. 10-3849
courts. See Lac Courte Oreilles Band of Lake Superior
Chippewa Indians v. Wisconsin, 760 F.2d 177, 180 (7th
cir. 1985); 28 U.S.C. § 1291. Decisions are final when
they “end[] the litigation and leave[] nothing to be decided
in the district court.” United States v. Ettrick Wood
Prods., Inc. 916 F.2d 1211, 1216 (7th Cir. 1990). Generally,
if an action involves either multiple parties or one
party with multiple claims, the dismissal of some but
not all of the parties or claims is not immediately
appealable; the parties or claims that still exist prevent
the order from being “final.” Id. at 1216-17; Fed.R.Civ.P.
Rule 54(b). Rule 54(b), however, empowers a district
court to “direct entry of a final judgment as to one or
more, but fewer than all, claims or parties,” but only if
the court “expressly determines that there is no just
reason for delay,” Fed.R.Civ.P. 54(b), a process commonly
referred to as “certification.” See, e.g., Parish v. City of
Elkhart, 614 F.3d 677, 679 n. 2 (7th Cir. 2010). The
Supreme Court has established that in addition to
the absence of any reason for delay, a certifiable claim must
be separable from the remaining claims in the litigation
and the decision entered as to those claims must meet the
definition of finality under § 1291—meaning there is
nothing left to be decided by the district court as to the
certified claims —in order for a Rule 54(b) ruling to be
proper. See ODC Communications Corp. v. Wenruth Invest-
ments, 826 F.2d 509, 511-12 (7th Cir. 1987) (citing Curtiss-
Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-8 (1980)).
Marriott argues that § 1291 and Rule 54(b), in concert
with the requirements of Fed.R.App.P. Rule 4(a)(1)
(“Rule 4(a)(1)”), clearly prevent this court from exercis-
No. 10-3849 9
ing jurisdiction over this appeal. Rule 4(a)(1) requires
that an appellant file a notice of appeal within 30 days
of the judgment from which that party is appealing.
Marriott correctly asserts that when the district court
dismissed appellants’ claims on November 10, 2009,
the entire case was not terminated, since there were
remaining plaintiffs litigating their claims. Those plain-
tiffs continue to litigate to this day. Thus, the district
court’s November 10th decision, which was not accompa-
nied by a Rule 54(b) judgment, was not a final judg-
ment under § 1291 and was not immediately appealable.
See Ettrick Wood Prods., 916 F.2d at 1217 (“Absent proper
entry of judgment under Rule 54(b), an order
that determines one claim in a multi-claim case, or
disposes of all claims against one or more parties in
a multi-party case, is not final and appealable.”). Appel-
lants’ December 10th notice of appeal was therefore
premature, since it was filed as a challenge to the Novem-
ber 10th nonfinal order. The district court eventually
granted appellants’ motion requesting a Rule 54(b) judg-
ment on January 7, 2011, making the appellants’ dis-
missal both final and appealable under § 1291, but appel-
lants did not file a new notice of appeal from the January
7th order. Instead, they rested on their December 10th
notice of appeal from the November 10th nonfinal or-
der. The question, then, is whether appellants’ original
notice of appeal satisfies the federal appellate
notice requirements under Rule 4(a)(1) despite the fact
that appellants technically appealed from a nonfinal
decision rather than the Rule 54(b) final judgment entered
on January 7th.
10 No. 10-3849
Appellants argue that this court’s jurisdiction is
saved under Fed.R.App.P. Rule 4(a)(2). Rule 4(a)(2) pro-
vides, “A notice of appeal filed after the court an-
nounces a decision or order—but before the entry of
the judgment or order —is treated as filed on the date of
and after the entry.” Appellant argues that, for the pur-
poses of Rule 4(a)(2), the district court announced
its decision to dismiss appellants’ claims on November
10, 2010 —the date the court ruled on Marriott’s second
motion for sanctions —but that its judgment was not
entered until January 7, 2011 —the date the court ruled on
appellants’ Rule 54(b) motion for entry of final judg-
ment. The appellants’ notice of appeal should therefore
be considered as having been constructively filed
on January 7, 2011 pursuant to Rule 4(a)(2), or so they
argue. Marriott argues that Rule 4(a)(2) does not resurrect
notices of appeal that were made prematurely in the
context of a belated Rule 54(b) motion. This is made clear,
they argue, by the Supreme Court’s decision in FirsTier
Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269(1991).
In FirsTier, the plaintiff brought claims against
an insurance company for refusing to pay claims submitted
by the plaintiff. Id. at 270. The defendant filed a motion
for summary judgment, and after orally granting
the defendant’s motion, the court asked the defendant
to submit proposed findings of fact and conclusions of
law, to which the plaintiff had a right to object. Id. at
271. Before the court accepted the defendant’s proposed
findings and conclusions —and thus before a final judgment
was technically entered —the plaintiff filed its notice
No. 10-3849 11
of appeal. Id. at 272. Relying on Rule 4(a)(2), the Supreme
Court held that the defendant’s notice of appeal
was timely, despite the fact that it was technically prema-
ture. Id. at 277. The Court interpreted Rule 4(a)(2)
as “permit[ing] a notice of appeal from a nonfinal deci-
sion to operate as a notice of appeal from the final judg-
ment only when a district court announces a decision
that would be appealable if immediately followed by
the entry of judgment.” 498 U.S. at 276 (emphasis in
original). The reasoning underlying this interpretation
is that “Rule 4(a)(2) was intended to protect the unskilled
litigant who files a notice of appeal from a decision that
he reasonably but mistakenly believes to be a final judg-
ment.” Id. Rule 4(a)(2) does not, however, permit “a
notice of appeal from a clearly interlocutory decision —such
as a discovery ruling or a sanction order under Rule 11
of the Federal Rules of Civil Procedure —to serve as a
notice of appeal from the final judgment.” Id. In
FirsTier, Rule 4(a)(2) saved the plaintiff’s premature appeal,
since the bench ruling announced a decision “purporting
to dispose of all of FirsTier’s claims,” and thus the
notice of appeal was deemed filed on the date that the
final judgment was actually entered. Id. at 277.
Marriott argues that in this case, unlike in FirsTier,
the entry of judgment was not all that stood in the way
of appellants’ dismissal becoming appealable. Rather,
the district court would have had to conduct a Rule
54(b) analysis or dispose of the remaining parties in
order for the dismissal to become final and appealable.
Thus, under Marriott’s suggested framework, the
order dismissing appellants’ claims was a clearly interlocu-
12 No. 10-3849
tory order, and under FirsTier, an appeal from an interlocu-
tory order cannot be saved by Rule 4(a)(2). Given that
it has been more than 30 days since the district court’s
January 7, 2011 order granting appellants’ motion to
enter final judgment, Marriott claims that any notice
of appeal now filed by appellant would be time-barred.
In light of FirsTier, we agree with those Circuits that
have held that, generally speaking,6 premature notices
of appeal in civil cases can only ripen when under the
auspices of Rule 4(a)(2), as defined by the Supreme
Court in FirsTier. See, e.g., Outlaw v. Airtech Air
Conditioning and Heating, Inc., 412 F.3d 156, 160 (D.C.
Cir. 2005); United States v. Cooper, 135 F.3d 960, 963 (5th
Cir. 1998) (interpreting Fed.R.App.P. Rule 4(b), which
is the equivalent of Rule 4(a)(2) for criminal cases, and
is interpreted as such); Serine v. Peterson, 989 F.2d 371, 372-
73 (9th Cir. 1993). But see Lazy Oil Co. v. Witco Corp.,
166 F.3d 581, 587 (3rd Cir. 1999) (“[FirsTier] did not
hold that the rule 4(a)(2) situation —announcement of a
final decision followed by notice of appeal and then
entry of the judgment —is the only situation in which a
premature notice of appeal will ripen at a later date.”).7
6
The exception to this rule can be found in Fed.R.App.P.
4(a)(4)(B), which tolls an appeal during the pendency of certain
post-judgment motions if a litigant’s notice of appeal is filed
after a final judgment has been rendered but before at least one
qualifying post-judgment motion has been granted or denied.
7
While we recognize that our interpretation is in conflict with
the Third Circuit’s precedent, see Lazy Oil, 166 F.3d at 587, we
(continued...)
No. 10-3849 13
Thus, we must determine whether Rule 4(a)(2) and FirsTier
permit a premature notice of appeal to ripen upon a
belated Rule 54(b) certification.
In the context of a case with multiple, separable
claims, the holding of FirsTier could take on two meanings.
The Supreme Court’s warning that Rule 4(a)(2) should
only apply when a decision would be appealable if imme-
diately followed by the entry of judgment, id. at 276,
could be interpreted to mean that nothing can stand
between the decision rendered and the appealability of
that decision but the ministerial task of actually entering
judgment on the docket. This is the interpretation
that Marriott advances. If we were to accept this
strict reading, a premature appeal from the dismissal
of one claim in a multi-claim suit, or one party in a multi-
party suit, could not be saved by Rule 4(a)(2), since there
is more for the court to do beyond the mere ministerial task
of entering judgment. Specifically, the court would
either have to dispose of the remaining claims or conduct
a Rule 54(b) examination, in which the court would have
to make specific findings of finality, separability, and a lack
of just cause for delay. Alternatively, FirsTier can be read
to hold that Rule 4(a)(2) will save a premature notice if,
regarding the claim being appealed, the entry of judgment
is all that is left for the court to do. Under this more lenient
reading, the dismissal of a single claim or party in a multi-
7
(...continued)
believe that the Third Circuit’s reading of FirsTier renders its
holding a virtual nullity, and thus we decline to follow it.
14 No. 10-3849
claim case would be an immediately appealable decision
had the entry of judgment directly followed the dismissal.
The situation would require a Rule 54(b) motion to enter
that judgment, but the entry of judgment would nonethe-
less be all that was required for the decision to become
appealable.
We have not directly confronted the question of whether
a belated Rule 54(b) judgment can save a premature
notice of appeal after FirsTier, but we have had the chance
to interpret FirsTier, and it is clear that we have decided
that the more lenient interpretation is the correct one.
In Garwood Packaging, Inc. v. Allen & Co., Inc, we found
that Rule 4(a)(2) gave us jurisdiction over an appeal
from a granted summary judgment despite the fact
that one of the defendants still had claims pending against
it, given that all of the claims were finalized
before we decided the appeal. 378 F.3d 698, 700-01 (7th
Cir. 2004). Citing FirsTier, we reasoned that “once [a]
decision is announced, a premature notice of appeal
lingers until the final decision is entered.” Id. at 701
(citing FirsTier, 498 U.S. 269). Thus, if finality is subse-
quently achieved through the disposal of all other
claims, Rule 4(a)(2) can save a premature appeal from a
judgment that did not dispose of all the parties in
a suit. See Garwood Packaging, Inc., 378 F.3d at 700-01.
In the case before us, we see no reason why we should
not reach the same conclusion where finality is reached
through a Rule 54(b) certification rather than the disposal
of all claims. Accord In re Bryson, 406 F.3d 284, 288
(4th Cir. 2005); Swope v. Columbian Chemicals Co., 281
F.3d 185, 191-92 (5th Cir. 2002); Clausen v. Sea-3, Inc.,
No. 10-3849 15
21 F.3d 1181, 1187 (1st Cir. 1994). In either case, the
district court’s decision represented the end of the litiga-
tion for a certain claim or certain claims, and all that
was needed for those claims to be appealable was
for judgment to be formally entered, thus providing true
finality. We therefore hold that, in the context of a multi-
party or multi-claim suit, a premature notice of
appeal from the dismissal of a party or claim will ripen
upon the entry of a belated Rule 54(b) judgment under
Rule 4(a)(2) and FirsTier. 498 U.S. at 275.
We conclude that this holding comports with the teach-
ing of FirsTier. It is reasonable, we think, for an unsophisti-
cated litigant to believe that he could appeal a court’s
decision to throw out his only claim despite the exis-
tence of other claims still pending. As was the
case in FirsTier, the district court in this case “purport[ed]
to dispose of all of [appellants’] claims.” 498 U.S. at
277. Also similar to FirsTier is the lack of any preju-
dice to Marriott. At no point since appellants’ original
notice of appeal was it unclear that they were appeal-
ing the district court’s dismissal of their claims. Moreover,
the Rule 54(b) judgment entered by the district court
in no way changed the nature of appellants’ dismissal;
it merely made that dismissal appealable. Not only
was Marriott satisfactorily able to brief the issues
of this case, but as is clear below, their defense of the dis-
trict court’s dismissal was successful.
This is not to say that all decisions made by a court can
be prematurely appealed and subsequently revived by
Rule 4(a)(2). As FirsTier cautions, an appeal from a
16 No. 10-3849
clearly interlocutory decision will not be saved by
Rule 4(a)(2). FirsTier, 498 U.S. at 276. But a decision that
functionally ends the litigation for a party can hardly
be considered “clearly interlocutory.” In this context,
the FirsTier line ought to be drawn at whether a
decision ends the litigation for a particular party or
for a separable claim, and thus is the potential subject of
a Rule 54(b) judgment, whether or not that Rule
54(b) judgment is ever actually entered. Accord Outlaw,
412 F.3d at 161-62 (basing its jurisdiction on the fact
that the district court could have entered judgment
on the appealed from claims using Rule 54(b)).
Before moving to the merits, it is worth noting that
the district court could have entered its Rule 54(b) judg-
ment nunc pro tunc, making the November 10, 2010
dismissal constructively appealable as of November
10th, 2010, thus avoiding the need for Rule 4(a)(2). See
Local-171, Amalgamated Meat Cutters and Butcher Workmen
of North America v. Thompson Farms Co., 642 F.2d 1065,
1073 (7th Cir. 1981). The fact that a failure by
the district court to add a Latin addendum to its
Rule 54(b) judgment could have been fatal to appel-
lants’ appeal illustrates the illogical and overly technical
results that would flow from too strict a reading of
Rule 4(a)(2).
B. Dismissal of Suits
Appellants argue that the district court abused its
discretion in dismissing appellants’ claims as a discovery
No. 10-3849 17
sanction for two reasons. First, appellants claim that
their discovery violations were not willful, were not
in bad faith, and did not involve fault, and thus dismiss-
al was too severe a sanction under our precedent.
Second, appellants argue that they were not adequately
warned that their claims would be dismissed, which,
they assert, is also required by our precedent. A district
court’s entry of sanctions is reviewed for abuse of discre-
tion, while factual findings are reviewed for clear error.
In re: Thomas Consolidated Industries, 456 F.3d 719, 724
(7th Cir. 2006).
The dismissal of a case as a Fed.R.Civ.P. Rule 37 discov-
ery sanction should be upheld as long as a reasonable
jurist could have concluded that the sanction was appro-
priate. Long v. Steepro, 213 F.3d 983, 986 (7th Cir.
2000). Given the severity of the sanction, this
court has warned that it will be vigilant in its review of
Rule 37 dismissals. Maynard v. Nygren, 332 F.3d 462,
467 (7th Cir. 2003). Despite the fact that the district
court dismissed appellants’ claims as a discovery sanction
under Rule 37, both parties cite cases discussing dismiss-
als under Fed.R.Civ.P. Rule 41(b)’s failure to prosecute
provision. The standards for dismissal under Rules
41(b) and 37(b) overlap, but there are differences
between the two. Under Rule 41(b), a case should only
be dismissed when “there is a clear record of delay or
contumacious conduct, or when other less drastic san-
ctions have proven unavailing.” Maynard, 332 F.3d at
467 (quoting Williams v. Chicago Bd. of Educ., 155 F.3d
853, 857 (7th Cir. 1998)). Rule 37, on the other hand,
requires a finding of willfulness, bad faith or fault on
18 No. 10-3849
the part of the defaulting party. Id; see also Bolanowski
v. GMRI, Inc, 178 Fed.Appx. 579, 581 (7th Cir. 2006)
(“Rule 37(b)(2)’s standard is willfulness, bad faith or fault,
while Rule 41(b)’s requires a clear record of delay or
contumacious conduct.”). The difference between these
two standards has caused some confusion, but we
have made clear that the Rule 41(b) standard is actually
a stricter standard than the Rule 37(b) standard, In re
Pansier, 417 Fed.Appx. 565, 569 (7th Cir. 2011), and we
have intimated that a finding of willfulness, bad faith or
fault is only necessary if Rule 41(b)’s “clear record”
of delay is not present. See Maynard, 332 F.3d at 468(“[E]ven without a clear record of delay, contumacious
conduct or prior failed sanctions, a court can apply
the sanction of dismissal for Rule 37 violations with
a finding of willfulness, bad faith, or fault.” (internal
quotation marks omitted)).
In the case at hand, the district court made a finding
that appellants displayed a pattern of “willful delay and
avoidance,” 8 thus meeting the Rule 37 standard of willful-
ness, bad faith, or fault. A comparison to relevant case
law clearly illustrates that this finding was not erroneous.
8
There has been some discussion as to whether a finding of
willfulness must be based on clear and convincing evidence or
merely a preponderance of the evidence. See Watkins v.
Nielsen, 405 Fed.Appx. 42, 46 (7th Cir. 2010) (citing Maynard,
332 F.3d at 468). This distinction is unimportant to this case, as
the facts would meet either standard.
No. 10-3849 19
In Aura Lamp & Lighting, Inc. v. International Trading
Corp., for instance, we did not find an abuse of discretion
when a Rule 37 dismissal9 was based on a plaintiff’s
repeated failures to meet court-ordered deadlines despite
several extensions, including “one final extension” and
a warning that dismissal was impending. 325 F.3d 903, 904-
906. While the court considered the fact that the attorney
handling the appellant’s case was a sole practitioner
and was overwhelmed by the amount of discovery,
it found that his request to find someone else to handle
the case was too late at the time of dismissal. Id. at 908.
Similarly, in Watkins v. Nielsen, this court held
that a plaintiff’s failure to meet deadlines despite several
extensions, failure to heed a warning of dismissal,
and submission of incomplete interrogatories warranted
dismissal under Rule 37(b). 405 Fed.Appx. 42, 43
(7th Cir. 2010).
Conversely, this court found that the plaintiff in Long
did not act with willfulness, bad faith, or fault when
he missed a single court-ordered deadline because of
the mistaken belief that a summary judgment motion
suspended all other proceedings. Long, 213 F.3d at 985-
87. In reaching this decision, the court explained that
the “fault” portion of the Rule 37 standard is different
than the “willfulness” and “bad faith” portions in
that fault does not require intentional or reckless behavior,
but counseled that fault “suggests unreasonable behavior”
9
The court held that a dismissal on either Rule 41(b) or Rule 37
would have been appropriate. Aura Lamp, 325 F.3d at 907.
20 No. 10-3849
and it “does not include conduct that we would classify
as a mere mistake.” Id. at 987.
The appellants’ discovery violations in this case
are undeniably more comparable to the plaintiffs in Aura
Lamp and Watkins than the plaintiff in Long. Unlike
the plaintiff in Long, appellants did not make a single
discovery error, and their repeated missteps were
not explainable by a reasonable misunderstanding. Appel-
lants missed five discovery deadlines and violated
two court orders. They completely failed to respond to
numerous interrogatories —a violation even more grave
than the incomplete interrogatories found in Watkins.
Like the attorney in Aura Lamp, appellants’ counsel did
not have the resources to handle a case of this nature,
yet he failed to either decline the case or enlist the help
of outside counsel at a reasonable point in the litigation.
Perhaps most telling was counsel’s inability to even
speak with the majority of the plaintiffs that he was
supposed to be representing. The dismissal is further
supported by the fact that the district court first attempted
to use the less severe sanction of paid expenses to
compel compliance from the appellants, but to no avail.
See Lowe v. City of East Chicago, Ind., 897 F.2d 272, 274
(7th. Cir 1990) (“The district court should consider
less severe sanctions than dismissal for a party’s noncom-
pliance with court orders or failure to prosecute his or
her claim expeditiously, unless there exists a clear record
of delay or contumacious conduct or when less
drastic sanctions have proven ineffective.” (emphasis added)
(internal quotation marks omitted)).
No. 10-3849 21
It is evident that the district court was within its discre-
tion to find that the appellants acted willfully, in bad
faith, or with fault.
Appellants also argue that the district court failed
to adequately warn them that their claims could be dis-
missed. They assert that this is a requirement for a Rule
37 dismissal, and the court therefore abused its discre-
tion. Appellants are correct that we encourage district
courts to provide an explicit warning before a Rule 37
or Rule 41 dismissal is ordered. See, e.g., Ball v. City of
Chicago, 2 F.3d 752, 760 (7th Cir. 1993) (“[T]here must be
an explicit warning before the case is dismissed [on Rule
41(b) grounds].”). More recent case law, however, has
clarified that an explicit warning is not absolutely neces-
sary; rather, the language in Ball should be taken as
a guideline for district court judges and should be treated
as a safe harbor rather than a requirement. Fischer
v. Cingular Wireless, LLC, 446 F.3d 663, 665 (7th Cir. 2006).
Further, a warning of dismissal need not come from
the judge. Id. at 666. In Fischer, for example, the fact that
the defendant requested dismissal if the plaintiff con-
tinued to violate discovery orders was deemed to contrib-
ute to the plaintiff’s warning that dismissal was a possibil-
ity. Id.In a case involving as many repeated discovery violations
as this, a warning may not even be necessary, but regard-
less, the district court and Marriott sufficiently warned
appellants of the possibility of dismissal. As in Fischer,
appellees filed more than one motion asking the court
to dismiss appellants’ claims due to their inability to
22 No. 10-3849
meet established discovery deadlines. The court also
warned appellants that the extension to August 2010
was their “final extension” and that another request for an
extension would not be looked upon with favor. Finally,
the magistrate judge’s Findings, Report, and Recommenda-
tion included dismissal as a possible sanction, providing
further warning. Given the nature and volume of appel-
lants’ discovery violations, along with the warnings of
dismissal that were issued, the district court did not
abuse its discretion in granting a Rule 37 motion to dismiss
without having explicitly warned appellants of
that possibility.
III. Conclusion
For the foregoing reasons, we A FFIRM the judgment of
the lower court.
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