Appellate Judges

Judge Ho’s Not Allowing the Northern District of Texas to Redistrict a Regular Visitor and Lawyer Without A Word of Advice

Judge Mark Pittman, a 2019 Trump nominee to the Federal Bench in Northern District in Texas gets reversed at the Fifth Circuit by Judge Jim Ho, et al.

No. 20-11002

United States Court of Appeals
Fifth Circuit
Lyle W. Cayce Clerk

FILED
February 19, 2021

Casey Campbell, Plaintiff—Appellant,

versus

Robert M. Wilkinson, Acting U.S. Attorney General; William Onuh, Defendants—Appellees.

Appeal from the United States District Court for the Northern District of Texas
USDC No. 4:20-CV-00638
aka Casey v. Barr

HAYNES, CATHARINA

HO, JAMES “JIM” C.

WILLETT, DON R.

Before Haynes, Willett, and Ho, Circuit Judges. James C. Ho, Circuit Judge:

Plaintiff brought claims of discrimination and retaliation under Title VII of the Civil Rights Act. The district court dismissed the suit under Federal Rule of Civil Procedure 41(b) on the ground that Plaintiff’s counsel failed to retain local counsel as required by local rules. We hold that dismissal was unwarranted and therefore reverse and remand for further proceedings.

I.

Casey Campbell filed this lawsuit in the Northern District of Texas, alleging discrimination and retaliation by his employer, the Federal Bureau of Prisons, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.

A few days later, the district court’s Electronic Case Filing (ECF) system reminded Campbell’s counsel that, “if necessary, [attorneys] must comply with Local Rule 83.10(a) within 14 days or risk the possible dismissal of this case without prejudice or without further notice.” Local Rule 83.10(a) of the Northern District of Texas states that, absent leave of court or an applicable exemption, “local counsel is required in all cases where an attorney appearing in a case does not reside or maintain the attorney’s principal office in this district.”

Campbell’s counsel neither resides nor maintains his office in the Northern District of Texas. Yet counsel did not obtain local counsel. Nor did he ask the court to waive the rule. Nor did he inform his client of the ECF notice or the local rule, or of his intention not to comply with either. He simply made a unilateral determination that the local rule did not apply to him, because he has practiced for decades in the Northern District of Texas, and because he currently lives and offices less than ten miles away in the neighboring Eastern District of Texas.

Approximately six weeks after issuing the ECF notice, the district court reviewed the record, determined that counsel was not in compliance with the local rule, and dismissed the case without prejudice under Rule 41(b) of the Federal Rules of Civil Procedure.

In response, counsel filed a motion to reconsider the dismissal and a motion to proceed without local counsel. The district court denied both motions. In doing so, the court noted that 45 days had elapsed between the ECF notification and the court’s order of dismissal, without counsel either obtaining local counsel or requesting leave to proceed without local counsel.

MR. WILLIAM JOSEPH DUNLEAVY

II.

Dismissal of Plaintiff’s Title VII claim under Rule 41(b) of the Federal Rules of Civil Procedure was not warranted. To understand why, however, we must examine both the text of Rule 41(b) and various past decisions of our court.

Under Rule 41(b), “a defendant may move to dismiss the action or any claim against it” “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b). It is well established that Rule 41(b) permits dismissal not only on motion of the defendant, but also on the court’s own motion. See, e.g., Morris v. Ocean Sys., Inc., 730 F.2d 248, 251 (5th Cir. 1984) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 631 (1962)). The question nevertheless remains whether this particular dismissal on the district court’s own motion was warranted under Rule 41(b).

This case does not involve a violation of either “these rules”—that is, the Federal Rules of Civil Procedure—or “a court order.” Fed. R. Civ. P. 41(b). It involves the violation of a local rule.

But Rule 41(b) does not mention local rules. This absence of any express reference to “local rules” in Rule 41(b) thus raises the question whether it is ever appropriate to invoke Rule 41(b) based on nothing more than the violation of a local rule.

Outside the Rule 41(b) context, we have observed that “[a] local rule must be adopted by a majority of the district judges and followed by all, in effect serving as a standing order within the district,” and that a local rule is accordingly equivalent to “a court order.” Jones v. Central Bank, 161 F.3d 311, 313 (5th Cir. 1998). But see id. at 313–14 (Smith, J., dissenting) (noting that various provisions of the Federal Rules of Civil Procedure, including Rules 6, 26, 30, 73, and 77, expressly apply to both court orders and local rules, and thus “indicate, with precision, that court orders are not the same things as local rules”).

We have not taken that approach within the Rule 41(b) context, however. In Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992), we reaffirmed that a “dismissal of plaintiff’s suit for failure to file a motion for default judgment, as required by local rule, [is] treated as dismissal for failure to prosecute” under Rule 41(b). Id. at 1190 (citing Williams v. Brown & Root, Inc., 828 F.2d 325, 326–27 (5th Cir. 1987)).

So Berry did not dismiss under Rule 41(b) because a “local rule is a court order.” Jones, 161 F.3d at 313. Rather, Berry dismissed because it held that the particular violation of local rule presented there should be “treated as dismissal for failure to prosecute”—as permitted under the plain text of Rule 41(b). 975 F.2d at 1190 (citing Williams, 828 F.2d at 326–27).

Our decision in Berry to analyze the local rule violation as a failure to prosecute, rather than as a violation of court order, could be decisive here. After all, unlike the local rule violated in Berry, it is harder to characterize a violation of the local rule presented here as a failure to prosecute.

In Berry, counsel failed to comply with a local rule that required the plaintiff to move for default judgment. Had the plaintiff complied with that rule, the case would have been terminated. So the court had some basis for treating the plaintiff’s failure to move for default judgment, as required by local rule, as a failure to prosecute. See id. (“A dismissal for failure to file a motion for default judgment is equivalent to a dismissal for failure to prosecute [W]e treat the dismissal of Berry’s suit for failure to prosecute as an involuntary dismissal under Fed. R. Civ. P. 41(b).”).

Failure to hire local counsel, by contrast, does not affect the timing or resolution of proceedings. So the rationale underlying Berry—that a violation of a local rule might constitute a failure to prosecute—does not appear to fit the local rule violation presented here.

And even if we ultimately concluded that Berry applies here, dismissal of Plaintiff’s Title VII claim was demonstrably unwarranted. That is because Berry sets forth a strict framework that district courts must meet to justify dismissal with prejudice—and one that the district court plainly failed to meet here.1

Although we review a dismissal for failure to prosecute for abuse of discretion, we recognize that dismissal with prejudice is a severe sanction. Accordingly, we are careful to limit a district court’s discretion to dismiss a case with prejudice. See, e.g., Berry, 975 F.2d at 1191; Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986); Callip v. Harris Cty. Child Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985).

As Berry makes clear, “

[w]e will affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay or contumacious conduct by the plaintiff, and (2) the district court has expressly determined that lesser sanctions would not prompt diligent prosecution, or the record shows that the district court employed lesser sanctions that proved to be futile.” 975 F.2d at 1191.

1 We acknowledge that the district court here dismissed this suit without prejudice. But we “treat the dismissal of [Campbell’s] case as a dismissal with prejudice.” Id. at 1191. That is because, “[w]here further litigation of [a] claim will be time-barred, a dismissal without prejudice is no less severe a sanction than a dismissal with prejudice, and the same standard of review is used.’” Id. (quoting McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. 1981)). Campbell’s Title VII claim is subject to a 90-day limitations period. Where, as here, a Title VII complaint pursuant to an EEOC right-to-sue letter is later dismissed, the 90-day limitations period is not tolled. 42 U.S.C. § 2000e-5(f); Berry, 975 F.2d at 1191. So Campbell is time-barred from bringing his suit again.

Moreover, in most cases where we have affirmed a dismissal with prejudice, we have found at least one of three aggravating factors: “(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.” Id. (quotations omitted).

This case fails this analytical framework at every turn. To begin with, there is no “clear record of delay or contumacious conduct by the plaintiff” in this case. Id. Indeed, counsel did not inform Campbell about Local Rule 83.10(a) or the ECF notification. Counsel simply made a unilateral determination not to hire local counsel, based on his conclusion that the local rule did not apply to him. So the failure to comply with local rules here falls entirely on counsel.

It is also far from obvious that the amount of time elapsed here is sufficient to constitute a “clear record of delay” in any event. Id. After all, “[t]he decisions of this court affirming Rule 41(b) dismissals with prejudice involve egregious and sometimes outrageous delays.” Rogers v. Kroger Co., 669 F.2d 317, 320–21 (5th Cir. 1982) (collecting cases involving multi-year delays). In Berry, by contrast, we concluded that the short delay there was insufficient to constitute a “clear record of delay.” 975 F.2d at 1191.

Here, the district court did not explain why a mere 45-day delay, without more, justified the severe sanction of dismissal with prejudice. Cf. Price, 792 F.2d 474–75 (upholding a dismissal for a delay of almost a full year where counsel also failed to file a pretrial order and failed to appear at a pretrial conference).

And even setting all that aside, there is no indication that the district court either “employed lesser sanctions that proved to be futile” or “expressly determined that lesser sanctions would not prompt diligent prosecution.” Berry, 975 F.2d at 1191.

Nor is there any record evidence to establish any of the aggravating factors discussed in Berry: The delay here was caused entirely by counsel, not by Campbell.

Defendants were not prejudiced because, as of the date of dismissal, no responsive pleadings were due and neither defendant had appeared in the case. And there is no evidence that counsel intended to delay proceedings. He may have wrongly concluded the local rule did not apply to him. But he was otherwise ready and prepared to litigate Campbell’s case himself.

In sum, the record shows neither a clear record of delay or contumacious conduct, nor the futility of lesser sanctions, nor any aggravating factor.

Dismissal of Plaintiff’s Title VII claim under Rule 41(b) was unwarranted here. We therefore reverse and remand for further proceedings.2

2 Campbell also appealed the denial of his motion for leave to proceed without local counsel, filed together with his Rule 59 motion. He contends that his attorney’s long experience with the Northern District of Texas and close proximity to the courthouse should have supported an exemption from the local counsel requirement. We leave this issue for the district court to address in the first instance on remand.

LIT located 3 other cases in N.D. Texas that Dunleavy is listed as counsel ;

Arencibia v. AGA Service Company (4:20-cv-00819)
Assigned To: Reed C. O’Connor

Magiera v. City of Dallas (3:08-cv-01023)
Assigned To: Allen Joe Fish

Warren v. Methodist Healthcare System (3:16-cv-00133)
Assigned To: James E. Kinkeade

 

APPEAL,CLOSED,JURY,TDIV-IN

U.S. District Court
Northern District of Texas (Fort Worth)
CIVIL DOCKET FOR CASE #: 4:20-cv-00638-P

Campbell v. Barr et al
Assigned to: Judge Mark Pittman

Related Case: 3:20-cv-01605-G
Case in other court:  United States Court of Appeals Fifth Circuit, 20-11002

Cause: 42:2000e Job Discrimination (Employment)

Date Filed: 06/16/2020
Date Terminated: 08/03/2020
Jury Demand: Plaintiff
Nature of Suit: 442 Civil Rights: Employment
Jurisdiction: U.S. Government Defendant
Plaintiff
Casey Campbell represented by William J Dunleavy
Law Offices of William J Dunleavy
825 Market Street
Building M, Suite 250
Allen, TX 75013
972-247-9200
Fax: 972-247-9201
Email: bill@williamjdunleavy.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Bar Status: Admitted/In Good Standing
V.
Defendant
William P Barr
Attorney General of the United States
Defendant
William Onuh
Date Filed # Docket Text
11/30/2020 APPEARANCE FORM FILED at USCA5 by Attorney William J. Dunleavy for Appellant Casey Campbell in 20-11002. Access to the EROA has been granted. (tle) (Entered: 11/30/2020)
10/16/2020 Record on Appeal for USCA5 20-11002 (related to 13 appeal): Record consisting of: 1 ECF electronic record on appeal (eROA) is certified,.
PLEASE NOTE THE FOLLOWING: Licensed attorneys must have filed an appearance in the USCA5 case and be registered for electronic filing in the USCA5 to access the paginated eROA in the USCA5 ECF system. (Take these steps immediately if you have not already done so. Once you have filed the notice of appearance and/or USCA5 ECF registration, it may take up to 3 business days for the circuit to notify the district clerk that we may grant you access to the eROA in the USCA5 ECF system.) To access the paginated record, log in to the USCA5 ECF system, and under the Utilities menu, select Electronic Record on Appeal. Pro se litigants may request a copy of the record by contacting the appeals deputy in advance to arrange delivery. (tle) (Entered: 10/16/2020)
10/15/2020 15 Transcript Order Form: re 13 Notice of Appeal, transcript not requested Reminder to appellant: this document must also be filed with the appeals court. (Dunleavy, William) (Entered: 10/15/2020)
10/14/2020 14 USCA Case Number 20-11002 in United States Court of Appeals Fifth Circuit for 13 Notice of Appeal, filed by Casey Campbell. (tle) (Entered: 10/14/2020)
10/02/2020 13 NOTICE OF APPEAL as to 8 Order, to the Fifth Circuit by Casey Campbell. Filing fee $505, receipt number 0539-11232225. T.O. form to appellant electronically at Transcript Order Form or US Mail as appropriate. Copy of NOA to be sent US Mail to parties not electronically noticed. IMPORTANT ACTION REQUIRED: Provide an electronic copy of any exhibit you offered during a hearing or trial that was admitted into evidence to the clerk of the district court within 14 days of the date of this notice. Copies must be transmitted as PDF attachments through ECF by all ECF Users or delivered to the clerk on a CD by all non-ECF Users. See detailed instructions here. (Exception: This requirement does not apply to a pro se prisoner litigant.) Please note that if original exhibits are in your possession, you must maintain them through final disposition of the case. (Dunleavy, William) (Entered: 10/02/2020)
09/02/2020 12 ORDER denying 10 … Before the Court is Plaintiffs Motion to Reconsider Dismissal and Motion to Proceed Without Local Counsel. ECF No. 10. Having reviewed the Motion, related briefing, case filings, and docket entries, the Court finds that both requests in the Motion should be and are hereby DENIED. (Ordered by Judge Mark Pittman on 9/2/2020) (wxc) (Entered: 09/03/2020)
08/31/2020 11 Brief/Memorandum in Support filed by Casey Campbell re 10 MOTION for Reconsideration re 8 Order, (Attachments: # 1 Declaration(s)) (Dunleavy, William) (Entered: 08/31/2020)
08/31/2020 10 MOTION for Reconsideration re 8 Order, filed by Casey Campbell (Dunleavy, William) (Entered: 08/31/2020)
08/03/2020 9 ORDER… This Final Judgment is issued pursuant to Federal Rule of Civil Procedure 58. It is ORDERED, ADJUDGED, and DECREED that this civil action is DISMISSED without prejudice. It is further ORDERED, ADJUDGED, and DECREED that all costs and expenses are taxed against the party incurring the same. The Clerk shall transmit a true copy of this Final Judgment to the parties. (Ordered by Judge Mark Pittman on 8/3/2020) (wxc) (Entered: 08/04/2020)
08/03/2020 8 ORDER…Plaintiff Casey Campbell was notified on June 19, 2020, to comply with Local Rule 83.10 within fourteen days. (ECF No. 7 ). A review of the record reveals that Plaintiff is still not in compliance with Local Rule 83.10(a). Because Plaintiff has failed to follow the Local Rules of the Northern District, the Court ORDERS that this case is DISMISSED without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. (Ordered by Judge Mark Pittman on 8/3/2020) (wxc) (Entered: 08/03/2020)
06/19/2020 7 New Case Notes: A filing fee has been paid. File to: Judge Pittman. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge. Clerk to provide copy to plaintiff if not received electronically. Attorneys are further reminded that, if necessary, they must comply with Local Rule 83.10(a) within 14 days or risk the possible dismissal of this case without prejudice or without further notice. (wxc) (Entered: 06/19/2020)
06/19/2020 New case number 4:20-cv-00638-P Campbell v. Barr et al has been opened following the order of transfer entered in case number 3:20cv1605-G. Future filings should be made in the FORT WORTH division and reflect the new case number as indicated. Clerk to complete new case processing and mail notice of this entry to any party who did not receive it electronically. (ldm) (Entered: 06/19/2020)
06/19/2020 6 Order: There being no apparent connection between this case and this division, on the court’s own motion, this case is TRANSFERRED to the Fort Worth Division, 28 U.S.C.§ 1404(a), for random reassignment to a judge resident in that division. (Ordered by Senior Judge A. Joe Fish on 6/19/2020) (ykp) (Entered: 06/19/2020)
06/17/2020 5 Summons issued as to William P Barr, William Onuh, U.S. Attorney, and U.S. Attorney General. (hml) (Entered: 06/17/2020)
06/16/2020 4 New Case Notes: A filing fee has been paid. Pursuant to Misc. Order 6, Plaintiff is provided the Notice of Right to Consent to Proceed Before A U.S. Magistrate Judge (Judge Horan). Clerk to provide copy to plaintiff if not received electronically. (hml) (Entered: 06/17/2020)
06/16/2020 3 ADDITIONAL ATTACHMENTS Civil Cover Sheet to 1 Complaint, by Plaintiff Casey Campbell. (Dunleavy, William) Modified Text on 6/17/2020 (hml). (Entered: 06/16/2020)
06/16/2020 2 CERTIFICATE OF INTERESTED PERSONS/DISCLOSURE STATEMENT by Casey Campbell. (Dunleavy, William) (Entered: 06/16/2020)
06/16/2020 1 COMPLAINT WITH JURY DEMAND against Casey Campbell filed by Casey Campbell. (Filing fee $400; Receipt number 0539-10921840) Clerk to issue summons(es). In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements and Judge Specific Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information – Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit(s)) (Dunleavy, William) (Entered: 06/16/2020)

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