APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, (D.C. Civil No. 85-1922)
Before GIBBONS, WEIS, and MARIS, Circuit Judges.
The plaintiff's complaint alleges racial discrimination in his employment termination by defendant. The suit was dismissed by the district court because plaintiff's lawyer failed to comply with a discovery order. We agree with the district judge that counsel has "exhibited, on the record, blatant disregard for explicit orders." We conclude, nevertheless, that sanctions should have been imposed on the attorney personally rather then denying plaintiff the opportunity to present his case on the merits.
On May 31, 1985, the district court directed that plaintiff submit within twenty days his then overdue answers to the defendant's interrogatories. The plaintiff's lawyer did not file the answers within that time, and on June 24, 1985, defendant asked that the case be dismissed pursuant to Fed.R.Civ.P. 37. The plaintiff's counsel did not respond to this motion; on July 18, 1985, the district judge dismissed the action.
In the interim, the plaintiff's lawyer had failed to appear at a pretrial conference scheduled for June 13, 1985. She gave as an excuse her error in calendaring the conference for 9:30 a.m., (which was when she arrived) rather then 9:00 a.m., the time set by the court. The district court assessed counsel a sanction of $150 for her dereliction. Four days later she sent a letter to the district judge apologizing for her error and asking that the sanction be remitted.
On December 13, 1985, the plaintiff's lawyer filed a motion under Fed.R.Civ.P. 60(b) to reinstate the complaint. Attached to the motion were answers to the interrogatories which apparently had been served on defendant. Also attached was a copy of a money order, dated November 1, 1985, in the amount of $150 made payable to the defendant's attorney.
The district judge denied the motion on December 30, 1985, noting the five-month delay which plaintiff had explained by "vague and understantiated claim that he personally had not learned of the dismissal until September, 1985. "More important, however, the court found counsel's explanation for her failure to file the discovery answers "incredible." The judge also characterized the lawyer's disregard of the May 31, 1985 order as "inexcusable."
On January 9, 1986, plaintiff acting pro se filed a motion for reconsideration and for dismissal of his attorney. He alleged that in June 1985 his lawyer had misled him into believing that she had complied with the discovery request, and that he had not learned of the suit's dismissal until September 26, 1985, when he checked the docket in the clerk's office. He charged his counsel with being derelict in not promptly requesting reconsideration of the July 18, 1985 dismissal order. He had insisted that his counsel take steps to remedy the situation, but when she prepared a petition, it proved to be inadequate under Rule 60(b). Plaintiff described his counsel's conduct as "abandonment," and noted that he had paid $400 as a fee. Because of his financial straits, plaintiff said he had been able to retain other counsel.
The district court denied the pro se motion, remarking that even after becoming aware of his lawyer's misdeeds, plaintiff nevertheless entrusted her with filing the Rule 60(b) motion, rather then acting on his own at that time.
We understand and appreciate the district judge's feelings when his efforts to move his docket expeditiously were frustrated by the inexcusable conduct of the lawyer. She consistently failed to meet her obligations in timely fashion with but one exception. When she was ordered to pay $150 of her own funds, she promptly wrote the district judge asking for reconsideration. Even in that instance, she utilized a letter rather than a motion, the appropriate district court procedure.
We review the district court's order under an abuse of discretion standard, recognizing the superior opportunity for the trial judge to assess the challenged conduct. See Quality Prefabrication, Inc. v. Daniel J. Keating Co., 675 F.2d 77 (3d Cir. 1982).
Nevertheless, we have vacated a dismissal when a client was victimized by his attorney's extreme negligence. In Boughner v. Secretary of Health, Education & Welfare, 572 F.2d 976 (3d Cir. 1978), we directed relief under Rule 60(b) where plaintiff had suffered a default judgment because his attorney had displayed "neglect so gross that it is inexcusable." Id. at 978. We observed that Link v. Wabash R.R. Co., 370 U.S. 626, 8 L. Ed. 2d 734, 82 S. Ct. 1386 (1962), upheld the dismissal of an action because of counsel's delinquency on the reasoning that the client was liable for the acts of the lawyer whom he had retained.
In Link, the Supreme Court concluded that because the plaintiff had voluntarily chosen the attorney to represent him in the action, he could not later avoid the consequences of the acts or omissions of this "freely selected agent." 370 U.S. at 633-34. Although the Court declared a party to be bound by his counsel's acts, it noted that the aggrieved party never availed himself of a corrective remedy such as the "escape hatch provided by Rule 60(b)." Id. at 632. Link did not decide whether it would have been an abuse of discretion to deny a Rule 60(b) motion, since none had been filed. Id. at 635-36. Compare Link with ...