                        United States Court of Appeals
                                  FOR THE EIGHTH CIRCUIT
                                       _____________

                                          No. 96-2989
                                         ____________

Matthew Duke Rodgers,               *
                                    *
                 Appellant,         *
                                    *
      v.                            *
                                    * Appeal from the United States
The Curators of the University of   * District Court for the
Missouri; Charles Geiss; James      * Western District of Missouri
Parker; Ray Dockweiler; Jenice      *
Stewart, Jo Behymer; Suzanne        *
Holland; Wanda Kent,                *
                                    *
                 Appellees.         *
                               ____________

                                   Submitted:       March 12, 1997

                                                 Filed:         February 3, 1998
                                         ____________

Before McMILLIAN, FLOYD R. GIBSON and JOHN R. GIBSON,
      Circuit Judges.
                              ____________

McMILLIAN, Circuit Judge.

       Matthew Duke Rodgers (“appellant”) appeals from a final order of the district
court1 dismissing his action with prejudice pursuant to Rule 41(b) of the Federal Rules




       1
        The Honorable Scott O. Wright, United States Senior District Judge for the Western District
of Missouri.
of Civil Procedure for failure to prosecute and follow court orders, and awarding
attorneys’ fees in favor of The Curators of the University of Missouri, Charles Geiss,
James Parker, Ray Dockweiler, Jenice P. Stewart, Jo Behymer, Suzanne Holland, and
Wanda Kent (collectively, “appellees”). For reversal, Rodgers argues that the district
court (1) abused its discretion in failing to consider lesser sanctions and (2) erroneously
found that his conduct was “wilful.” For the reasons discussed below, we affirm the
order of the district court.

                                     I. Jurisdiction

      Jurisdiction was proper in the district court based upon 28 U.S.C. §§ 1331 and
1367. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The notice of
appeal was timely filed under Rule 4(a) of the Federal Rules of Appellate Procedure.

                                    II. Background

      The following facts are derived from the findings of the district court and the
record on appeal. On May 14, 1989, appellant, then a student at the University of
Missouri at Columbia (“University”), was in an automobile accident in which he
suffered serious head injuries. Upon returning to the University in 1990, Rodgers
requested accommodation for his injury-related learning difficulties.

        On July 11, 1994, appellant filed suit in federal district court against appellees
alleging violations of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101
et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq. In brief, appellant
claimed that the University neglected his needs and failed to provide the
accommodations that he requested or, alternatively, provided inadequate
accommodations. On June 10, 1996, the district court dismissed appellant’s action




                                            -2-
with prejudice, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and
awarded attorneys’ fees in favor of appellees. 2

       The circumstances which occasioned the district court’s dismissal occurred over
a two-year period (following the filing of appellant’s complaint) in which appellant
repeatedly disregarded orders of the district court. First, appellant failed to comply in
a timely fashion with the district court’s order to produce certain material documents
(specifically, bank and income tax records) that appellees had sought unsuccessfully
from appellant since 1995. Instead, appellant sporadically produced selected
documents, some of which were not produced until March 29, 1996, the day of the
hearing on the district court’s order to show cause why the action should not be
dismissed for appellant’s violation of discovery orders.

      Second, appellant failed to appear at a properly-noticed, court-ordered
deposition. On April 12, 1996, appellees informed the district court that appellant had
been only partially deposed and certain aspects of the litigation required further inquiry.
The district court subsequently ordered appellant to complete his deposition with
appellees on April 22, 1996.3 However, appellant failed to appear at his deposition.

        Finally, appellant violated a court order prohibiting him from firing his fourth set
of counsel. Specifically, during a scheduling conference on October 5, 1995, the
district court forewarned appellant via his then-current counsel, Lynn Bratcher, that his




       2
        Appellant does not appeal the district court’s award of attorneys’ fees.
       3
        The parties had previously agreed to complete appellant’s deposition after the close of
discovery in order to accommodate a scheduling conflict between appellant and his then-current
counsel. Accordingly, the district court scheduled appellant’s deposition for April 15, 1996.
However, as this date did not comport with appellant’s schedule, the deposition was rescheduled for
April 22, 1996, in Kansas City, Missouri.

                                                -3-
case would be dismissed with prejudice if he should fire her. The following
exchange occurred:

      THE COURT:     If this guy fires you Lynn
      [Bratcher], I’m going to dismiss his case with
      prejudice.

      MS. BRATCHER:            Okay.       I understand that, Your
      Honor.

      THE COURT:         You better tell him that.

      MS. BRATCHER:            Okay.       I understand that, Your
      Honor.


Joint Appendix (“J.A.”) at 119 (District Court Order of
June 10, 1996 (“Order”), at 3 (citing Transcript of
Telephone Conference of Oct. 5, 1995, at 8)). Bratcher
subsequently informed appellant in writing that her
withdrawal would trigger the dismissal of his case with prejudice. Specifically,
Bratcher wrote: “[Judge Wright] said that if your lawyers
withdraw again, he will dismiss the case with prejudice.
I just want you to be aware of that.”         J.A. at 213
(Exhibit E of Motion to Reconsider, Letter from Bratcher
to appellant of Oct. 6, 1995, at 1).

       Despite this warning, on April 21, 1996, appellant fired Bratcher. By that time,
four sets of counsel had withdrawn and been replaced as attorneys-of-record in
appellant’s suit. As a result of these changes in counsel and the new issues raised in
appellant’s amended complaints, the district court extended the discovery cut-off date
five times and reset the trial date three times.




                                          -4-
      On April 29, 1996, appellees moved to dismiss appellant’s action with prejudice
pursuant to Federal Rule of Civil Procedure 41(b).4 The next day, appellant obtained




       4
       The Curators had previously moved for a dismissal of appellant’s case with prejudice on
September 13, 1995. However, the district court declined to rule on that motion.

                                             -5-
his fifth and current set of counsel. On June 10, 1996, the district court granted
appellees’ motion, finding that appellant had deliberately violated court orders and
engaged in dilatory conduct, that appellant’s conduct had prejudiced appellees by
inhibiting their preparation for trial and compelling the expenditure of scarce
educational resources, that the imposition of lesser sanctions would be ineffective and
unjustified, and that appellant’s conduct was conscious, intentional, taken deliberately
for tactical gain, and had the effect of attacking the integrity of the court. More
specifically, the district court found that appellant was
dilatory in his prosecution of the case based on his
filing a second amended complaint, which significantly
expanded the scope of the litigation, and his repeated
change of counsel. J.A. at 119-20 (Order at 3-4).


      On June 25, 1996, appellant filed a motion for reconsideration of the district
court’s order of dismissal. Appellant’s motion was denied on July 15, 1996. This
appeal followed.

                                    II. Discussion

A. Standard of Review

       Rule 41(b) of the Federal Rules of Civil Procedure provides that a district court
may dismiss a case for failure to prosecute a claim or comply with court orders; unless
otherwise specified, such dismissal operates as an adjudication on the merits. Fed. R.
Civ. P. 41(b); Brown v. Frey, 806 F.2d 801 (8th Cir. 1986) (Brown). This court reviews
a Rule 41(b) dismissal under an abuse of discretion standard. Wright v. Sargent, 869
F.2d 1175, 1176 (8th Cir. 1989) (per curiam). When reviewing under this standard, this
court employs a balancing test that focuses foremost upon “the degree of egregious
conduct which prompted the order of dismissal and to a lesser extent upon the adverse



                                          -6-
impact of such conduct upon both the defendant and the administration of justice in the
district court.” Omaha Indian Tribe v. Tract I -- Blackbird Bend Area, 933 F.2d 1462,
1468 (8th Cir.), cert. denied, 502 U.S. 942 (1991) (Omaha Tribe) (citations omitted).
Moreover, the sanction imposed by the district court must be proportionate to the litigant’s
transgression. See Mann v. Lewis, 108 F.3d 145, 147 (8th Cir. 1997) (citing Moore v. St. Louis
Music Supply Co., Inc., 539 F.2d 1191, 1194 (8th Cir. 1976) (Moore)).


    “Dismissal with prejudice is an extreme sanction and
should be used only in cases of wilful disobedience of a
court order or . . . persistent failure to prosecute a
complaint.” Givens, 751 F.2d at 263 (emphasis added).
Thus, where, as here, a case has been dismissed with prejudice, this court considers
“whether in the particular circumstances of the case the needs of the court in advancing
a crowded docket and preserving respect for the integrity of its internal procedures are
sufficient to justify the harsh consequences of forever denying a litigant his day in
court.” Moore, 539 F.2d at 1193.     However, the district court need
not have found that appellant acted in bad faith, only
that he acted intentionally as opposed to accidentally or
involuntarily. E.g., Welsh v. Automatic Poultry Feeder
Co., 439 F.2d 95, 97 (8th Cir. 1971).

    The district court’s determination that appellant
wilfully disregarded court orders and engaged in
intentional delay is a finding of fact, and hence is
subject to the clearly erroneous standard of review. See
Fed. R. Civ. P. 52(a). The clearly erroneous standard
applies “even when the district court’s findings do not
rest on credibility determinations, but are based instead
on physical or documentary evidence or inferences from
other facts.”   Anderson v. City of Bessemer City, 470
U.S. 564, 574 (1985) (Anderson); see Fed. R. Civ. P.
52(a). Thus, we may not overturn the district court’s


                                             -7-
factual findings merely because we might have concluded
differently had we initially decided the issue. Rather,
a finding is clearly erroneous only when, “even though
there is evidence in the record to support it, the
reviewing court is left with a




                          -8-
definite and firm conviction that a mistake has been
committed.” Anderson, 470 U.S. at 573.

B. Analysis

    Appellant argues that the district court abused its
discretion in dismissing his action with prejudice and
thereby permanently barring him from pursuing his claims
against appellees.   Specifically, Rodgers charges that
dismissal was inappropriate because the court’s decision
was based, in part, on the erroneous finding that his
conduct was wilful. In addition, Rodgers argues that the
district court abused its discretion in failing to impose
lesser sanctions prior to dismissing the action with
prejudice.

    The record in the instant case contains instances in
which appellant both wilfully violated court orders and,
apparently, accidentally disregarded them. In light of
the   evidence of appellant’s acts of intentional
noncompliance, we find that the district court’s finding
of wilfulness is not clearly erroneous.

    For example, appellant failed to comply with the
district court’s March 29, 1996 order to produce certain
financial records.     Appellant argues that he timely
delivered these documents to his own counsel of record
and that any delay in their production to appellees was
the fault of his counsel and therefore unintentional.
However, this argument fails for two reasons. First, by
virtue of his agency relationship with his attorneys,
appellant is generally bound by the actions (or inaction)
of his attorney when his attorney acts in her

                           -9-
representational capacity.    See, e.g., Link v. Wabash
R.R., 370 U.S. 626, 633-34 (1962) (holding that, with
respect to attorney misconduct that leads to Rule 41(b)
dismissals, “each party is deemed bound by the acts of
his [or her] lawyer-agent.”); Omaha Tribe, 933 F.2d at
1471 (“It is unfortunate in a case such as this that the
client must live or die by the conduct of its counsel.”).
Second,   appellant   has   proffered   no  evidence   to
substantiate his allegation that he timely produced the




                           -10-
subject documents to his then-current counsel who then
failed to turn them over to appellees. Accordingly, we
do not find that the district court erred in concluding
that appellant’s derogation of the order to produce the
subject documents was intentional and deliberate.
Moreover, although appellant proffered testimony that he
was unaware that certain documents were within the scope
of the order, this court does not find that this
testimony is sufficient to prove that the district
court’s finding that appellant wilfully violated this
order is erroneous.

    Similarly,   the   district   court’s   finding  that
appellant intentionally violated the district court’s
October 5, 1995 order against firing his then-current
counsel was not erroneous in light of appellant’s
awareness of the order and his prolonged history of
difficulty in retaining counsel.        See Grunewald v.
Missouri Pac. R.R. Co., 331 F.2d 983 (8th Cir.)
(affirming dismissal where trial was postponed after
plaintiff’s original counsel withdrew, trial was again
postponed when plaintiff failed to retain new counsel
until eve of reset trial date, and new counsel withdrew
on eve of trial), cert. denied, 379 U.S. 839 (1964).
Appellant argues that he did not understand Bratcher’s
characterization of the October 5, 1995 order to mean
that firing his counsel would trigger dismissal. Rather,
appellant contends that there is a meaningful distinction
between proscribing the “firing” of one’s counsel and
proscribing their     “withdrawal”, and that the order
proscribed the latter only.      We are of the opinion,
however, that appellant’s argument is based upon a
distinction without a difference.      It is clear that,

                           -11-
whether an attorney is fired or elects to discontinue her
representation of a client, she must withdraw as the
attorney of record in the underlying suit. Bratcher’s
letter made clear that her withdrawal from the instant
case, presumably under any circumstance, would be cause
for dismissal.

    Moreover, the particular facts of the instant case
suggest that appellant clearly understood what happens
when counsel withdraws from a case. Appellant’s first
attorney, David Steelman, withdrew and was replaced as
counsel of record in November 1994. His second attorney,
Edward Clausen, withdrew and was replaced




                           -12-
as counsel of record in August 1995. His third attorney,
Richard Crites, withdrew on September 13, 1995, citing
that appellant had requested him to engage in borderline
unethical conduct. Crites was replaced by appellant’s
fourth attorney, Lynne Bratcher, on September 26, 1995,
who was replaced by appellant’s current counsel, Tom
Jones and Bryan Round, on April 30, 1996. In each of
these instances, regardless of what precipitated the
attorney’s withdrawal, that attorney ultimately withdrew
as counsel of record.    That Bratcher’s letter did not
distinguish “firing” from voluntary withdrawal is thus
inconsequential   because   the   end  result   is   the
same–Bratcher withdrew from the case.

    Furthermore, where, as here, there is evidence that
appellant’s dilatory conduct and disregard of court
orders    continued   over    a   two-year    period,   a
miscommunicated warning threatening dismissal will not
compel reversal.     Indeed, while a warning from the
district court that a particular litigant is skating on
the thin ice of dismissal is encouraged, see First Gen.
Resources Co. v. Elton Leather Corp., 958 F.2d 204, 206
(8th Cir. 1992) (per curiam) (First General) (Rule 41(b)
dismissal proper after court warned party of consequence
for failure to engage in discovery), this circuit has yet
to hold that such an admonition is necessary to sustain
a Rule 41(b) dismissal and declines to so hold now.

      Appellant also challenges the district court’s finding that appellant wilfully
disobeyed its order to attend a scheduled deposition. Appellant contends
that the deposition was not properly noticed and thus his
failure       to     attend      it     cannot        be    deemed       wilful.
Specifically, appellant maintains that his attorney did

                                        -13-
not inform him about the deposition and that appellees
improperly sent a notice of the deposition directly to
him as opposed to notifying him through his attorney.
The record on appeal reflects that these allegations are
supported only by the testimony of appellant’s father and
are in direct conflict with the district court’s finding
that appellant’s deposition was properly noticed. Order
at 3. In addition, appellant still elected not to appear at the deposition after becoming aware
that the deposition was court-ordered and therefore mandatory.




                                             -14-
        In light of the foregoing, this court finds that, despite any difficulties appellant may have had
communicating with his attorney, his failure to attend his court-ordered deposition was accurately
deemed a direct violation of a court order. See Aziz v. Wright, 34 F.3d 587, 589 (8th Cir. 1994)
(finding dismissal with prejudice was appropriate when plaintiff failed to comply with court-ordered
deposition), cert. denied, 513 U.S. 1090 (1995) (Aziz). Accordingly, we accept
the district court’s finding that notice was proper and
that defendant’s conduct was wilful.

       The record also supports the district court’s finding that appellant wilfully
delayed his litigation against appellees, to the extent that appellant changed counsel
four times during the course of this litigation, thereby delaying discovery and trial. In
fact, appellant’s final change in counsel occurred on the eve of his April 22, 1996
court-ordered deposition, at which he failed to appear. Appellant maintains
that appellees also contributed to the delay in the
proceedings by requesting trial and discovery extensions.
Appellant therefore argues that the district court erred
in considering these extensions as a basis for dismissal.
Moreover, appellant contends that the time extensions
that are attributable to him were requested by his
counsel and thus should not affect the disposition of his
case. The record suggests, however, that these delays
were either initiated by appellant or requested as a
result of appellant’s dilatory tactics. See Order at 3-
4. Appellant offers no counter-evidence on this point.

    Having found that the district court’s finding of
wilful conduct was not clearly erroneous, we will not
reverse its selection of a sanction unless the court
abused its discretion. Moreover, because a district court may
dismiss a case for any violation of a court order, Brown,
806 F.2d at 803, and there is evidence of several
intentional acts of delay, we affirm.


                                                  -15-
      While we agree with appellant that the instant case does not approach the most
egregious conduct upon which this court has previously affirmed dismissals with
prejudice, and while “not every instance of failure to comply with an order of court,




                                        -16-
however inexcusable, justifies total extinction of a client’s cause of action,” Givens, 751
F.2d at 263, dismissal with prejudice is not subject to reversal here where appellant has
engaged in several acts of wilful noncompliance with orders of the court. Moreover,
evidence of appellant’s eleventh-hour attempt to cure his violation of a discovery order,
unsubstantiated allegations of attorney neglect, and an acknowledgment by the district
court that the obstreperous conduct of appellant’s parents was the heart of appellant’s
problem in this case do not make appellant’s conduct any less wilful or sanctionable for
purposes of this analysis. Appellant was given ample opportunities to explain or cure
his violations of discovery orders and the delay prejudiced appellees. Cf. Jackson v.
Schoemehl, 788 F.2d 1296, 1299 (8th Cir. 1986) (reversing dismissal with prejudice
despite plaintiffs’ failure to file proposed findings of fact and conclusions of law for two
years because court gave plaintiffs no opportunity to explain or cure tardiness and delay
did not prejudice defendants).

       The above analysis notwithstanding, this case differs from other cases involving
similar acts of noncompliance because of appellant’s traumatic head injuries. Indeed,
appellant’s counsel compellingly argues that appellant “is a young man with cognitive
disabilities secondary to traumatic closed head injuries suffered in an automobile
accident that nearly took his life” and that the district court’s finding that appellant’s
actions were “wilful and deliberate and taken deliberately to gain tactical advantage”
ignores this fact. Upon careful examination of the record, however, we find no evidence that
appellant’s injuries contributed to his acts of noncompliance so as to render them involuntary or
accidental. Absent such proof, we do not find that the district court abused its discretion
in dismissing the appellant’s action with prejudice pursuant to Rule 41(b).

       In the alternative, appellant argues that the district court abused its discretion in
dismissing his claims without first imposing lesser sanctions or explaining why lesser
sanctions would have been ineffective. This court has held that “[t]he ultimate sanction
of dismissal with prejudice should only be used when lesser sanctions prove futile.”


                                              -17-
Herring v. Whitehall, 804 F.2d 464, 468 (8th Cir. 1986); cf. Givens, 751 F.2d at 263-64
(reversing dismissal with prejudice where lesser sanctions were available). In the instant
case, the district court, relying on First General, supra, 958 F.2d at 206, concluded that any
lesser sanction would be ineffective. Order at 7. Indeed, unlike Givens, upon which
appellant relies, any lesser sanction would have involved further delay or forced
appellees to try their case without completing discovery.

        In Givens, this court reversed a Rule 41(b) dismissal with prejudice where the
litigant’s sole transgression was failing to comply with the discovery deadline. Id. The
court reasoned that dismissal with prejudice was disproportionate to this act of
noncompliance; instead, the appropriate sanction would be to disallow any further
discovery and move forward to trial on the evidence theretofore adduced. Id. at 263.
At the time that the instant case was dismissed in June 1996, however, appellant had yet
to produce fully records that appellees had requested in 1995. Further, appellant had yet
to be fully deposed by appellees despite the district court’s efforts to accommodate
appellant’s schedule. Thus, lesser sanctions such as forcing appellant to proceed to trial
without further discovery would have prejudiced appellees, not appellant. Consequently,
we hold that the district court did not abuse its discretion in concluding that lesser
sanctions would be ineffective and unjustified or in granting dismissal with prejudice.5
See First General, 958 F.2d at 206 (no harm in failing to consider lesser sanctions before
dismissal where lesser sanctions would have prejudiced defendant); Rogers v. Kroger
Company, 669 F.2d 317 (5th Cir. 1982) (“A clear record of
delay coupled with tried or futile lesser sanctions will
justify a Rule 41(b) dismissal with prejudice.”).




       5
        As a last ditch effort to compel reversal, appellant contends that he was misled by the district
court to believe that appellees’ Rule 41(b) motion would not be granted because the underlying
proceedings were not stayed pending resolution of that motion. We fail to see any basis for
appellant’s assumption and reject this argument on appeal as meritless.

                                                  -18-
                                      III. Conclusion

       In light of the foregoing, we hold that the district court did not abuse its discretion
in dismissing appellant’s action with prejudice on the ground that appellant’s conduct
constituted a wilful disregard of court orders. See First General, 958 F.2d at 206
(“Although dismissal with prejudice is a severe sanction, the court may impose such a
sanction where the plaintiff has engaged in a pattern of intentional delay.”); Burgs v.
Sissel, 745 F.2d 526, 528 (8th Cir. 1984) (per curiam) (“Although a dismissal with
prejudice is a drastic remedy, a pattern of intentional delay by the plaintiff is sufficient
to warrant such action by the trial court.”). Accordingly, we affirm the judgment of the
district court.

       A true copy.

              Attest:

                                 CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.




                                            -19-
