UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEE N. KOEHLER,
Plaintiff-Appellant,

v.

A. DAVID DODWELL,
Defendant,

SUSAN J. MITCHELL,
Party in Interest,
                                                               No. 99-1776
THE REEFS; JENKINS AND GIBSON,
LIMITED; WINDWARD PROPERTIES,
LIMITED;
Garnishees,

and

THE REEFS BEACH CLUB, LIMITED,
Garnishee-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-92-2982-S)

Argued: May 2, 2000

Decided: June 2, 2000

Before WILKINS and LUTTIG, Circuit Judges, and
Frank W. BULLOCK, Jr., United States District Judge for the
Middle District of North Carolina, sitting by designation.

_________________________________________________________________

Reversed and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Brian Grayson West, Towson, Maryland, for Appellant.
Thomas Carroll Beach, III, WHITEFORD, TAYLOR & PRESTON,
L.L.P., Baltimore, Maryland, for Appellee. ON BRIEF: Paul F.
Newhouse, Towson, Maryland, for Appellant.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Lee N. Koehler appeals an order of the district court dismissing his
garnishment action against The Reefs Beach Club, Limited (The
Reefs). We reverse the dismissal and remand for further proceedings.

I.

The Reefs is a closely held Bermuda corporation, of which A.
David Dodwell is president and in which Dodwell owns 60 percent
of the voting stock. Koehler, who is an attorney, initiated this garnish-
ment action attempting to collect on a default judgment he had
obtained against Dodwell in 1993 in the federal district court for the
District of Maryland. On November 18, 1993, Koehler served
Dodwell and The Reefs with writs of garnishment of wages and prop-
erty. Koehler served second writs of garnishment of wages and prop-
erty on Dodwell and The Reefs on September 12, 1994, when
Dodwell was present in Maryland. When neither Dodwell nor The
Reefs answered the garnishment writs, Koehler moved the district
court for entry of an order of default. Senior District Judge Frank A.
Kaufman entered an order of default on June 24, 1996.

The Reefs finally responded to the garnishment writs on July 18,
1996 by moving unsuccessfully to vacate the default order against it.

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In his order denying the motion to vacate, Judge Kaufman specifically
rejected The Reefs' claim that the district court lacked personal juris-
diction over The Reefs, ruling that the jurisdictional challenge was
untimely. In that order, however, Judge Kaufman also stated the fol-
lowing:

          If, as Garnishee has submitted, Garnishee has no assets in
          Maryland, and Garnishee files an appropriate document--
          which it has not seemingly done to date--setting forth in
          form which will be appropriate if Federal Civil Rule 56 is
          applicable the fact that Garnishee has no assets in Maryland,
          then such a submission by Garnishee would seemingly, at
          least for the time being, result in no garnishment being
          accomplished in this case in this Court.

J.A. 95. On September 11, The Reefs filed a response to this order,
incorporating by reference an affidavit of a director of The Reefs,
which stated that The Reefs held no assets in Maryland and owed no
debts to Dodwell. Koehler subsequently filed a reply with which he
submitted an affidavit from his counsel in a prior court proceeding
stating that the director's representation that The Reefs did not own
assets in Maryland was inconsistent with representations the director
had made in that prior proceeding. On October 29, Judge Kaufman
granted Koehler the right to conduct discovery through January 20,
1997 to determine "what assets, if any, of [Dodwell's] exist[ ] in
Maryland and/or in any other jurisdiction within or without the 50
states of the United States." Id. at 147.

On December 20, 1996, Koehler served The Reefs with written
interrogatories and requests for document production. The Reefs
replied on January 16, 1997, but restricted its answers solely to assets
located within the United States. On February 20, Judge Kaufman
conducted an on-the-record telephone conference with legal counsel
for the parties. During this conference, the discovery dispute was dis-
cussed, and Judge Kaufman indicated that The Reefs was primarily
to blame for the discovery difficulties. Following the conference,
Judge Kaufman referred the discovery matter to Magistrate Judge
Daniel E. Klein, Jr. and directed him to provide the court with evi-
dence of his actions, rulings, and recommendations no later than July

                    3
11. Koehler failed to undertake any further discovery prior to July 11,
however.

On July 14, Koehler's law partner, Brian G. West, entered an
appearance for Koehler in the garnishment proceeding and wrote to
Judge Klein explaining why he had been unable to complete discov-
ery. In this letter, West also requested enlargement of the time period
allowed for the completion of discovery. The Reefs subsequently
responded to the motion and simultaneously moved to dismiss the
garnishment action with prejudice. In the motion to dismiss, The
Reefs chronicled Koehler's failure to take advantage of the time allot-
ted for discovery and asserted that his failure to identify any assets
subject to jurisdiction of the district court mooted the garnishment
action.

Acting for Judge Kaufman, Judge Andre M. Davis issued an order,
dated July 22, that referred the motion to dismiss to Judge Klein for
a "[h]earing (if necessary), proposed findings of fact, and recommen-
dations." Id. at 213. Before entry of this order on July 24, however,
Judge Klein issued an order denying Koehler any time for further dis-
covery. Judge Kaufman died on July 31.

On August 4, the day on which Koehler's response to The Reefs'
motion to dismiss was due, Koehler moved for an extension of time
in which to respond. See Fed. R. Civ. P. 6(b)(1). In support of the
motion, Koehler asserted that he intended to file objections to the
order denying him further time for discovery and that The Reefs'
motion to dismiss on the basis of Koehler's failure to complete dis-
covery was therefore premature. Koehler requested that he be allowed
ten days following the ruling on his objections in which to respond
to the motion to dismiss. Koehler subsequently filed objections to
Judge Klein's order on August 8. Because of Judge Kaufman's death,
the case was reassigned to District Judge Frederic N. Smalkin on
August 12.

On August 15, three days after having been assigned the case,
Judge Smalkin issued a memorandum opinion and order that (1)
rescinded Judge Davis' July 22 order of reference, (2) affirmed Judge
Klein's denial of Koehler's request for an extension of time in which
to complete discovery, (3) denied Koehler's motion for enlargement

                    4
of time to respond to the motion to dismiss, and (4) dismissed the gar-
nishment action "without prejudice," subject to reinstitution if Koeh-
ler "file[d] an affidavit of counsel asserting that there is property of
[Dodwell] located in Maryland in the custody of [The Reefs]." J.A.
270. In dismissing the action, Judge Smalkin wrote that "the Court
sees utterly no reason to justify the plaintiff's failure to respond to the
motion to dismiss pending resolution of the objection" to Judge
Klein's denial of Koehler's request for an extension of the time for
discovery. Id. at 269. Judge Smalkin added that "there is absolutely
no reason to keep this case open, the plaintiff having failed diligently
to pursue discovery of assets subject to garnishment within the juris-
diction of this Court." Id.

Koehler moved for reconsideration on August 29, and in an order
dated September 2, Judge Smalkin directed The Reefs to respond. On
that same date, however, Dodwell moved to vacate the underlying
default judgment, claiming that it was void. Dodwell's motion
prompted Judge Smalkin to vacate his September 2 order pending dis-
position of Dodwell's motion to vacate the underlying default judg-
ment. Judge Smalkin subsequently granted Dodwell's motion to
vacate the default judgment and dismissed Koehler's complaint for
lack of federal subject matter jurisdiction. This court reversed that
vacatur in Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998).

Following reversal of the vacatur, The Reefs filed a response in
opposition to Koehler's motion for reconsideration, and Koehler
replied. Judge Smalkin denied Koehler's motion for reconsideration,
opining that dismissing the garnishment action without having
received a response to the motion to dismiss from Koehler was not
an abuse of discretion.

II.

Koehler first argues that Judge Smalkin abused his discretion in
denying Koehler's request for an extension of time in which to
respond to the motion to dismiss. We agree.

Federal Rule of Civil Procedure 6(b) governs enlargement of time
periods prescribed by the Federal Rules of Civil Procedure or by court
order. When a request for additional time is made before the expira-

                     5
tion of the period originally prescribed, a district court may enlarge
the period "for cause shown." Fed. R. Civ. P. 6(b)(1). "[A]n applica-
tion under Rule 6(b)(1) normally will be granted in the absence of bad
faith or prejudice to the adverse party." 4A Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 1165, at 475 (2d
ed. 1987). As is true of all of the Federal Rules of Civil Procedure,
Rule 6 is to "be construed and administered to secure the just, speedy,
and inexpensive determination of every action." Fed. R. Civ. P. 1. We
review the denial of a Rule 6(b)(1) motion for abuse of discretion. See
Buchanan v. Sherrill, 51 F.3d 227, 228 (10th Cir. 1995) (per curiam).

Here, Koehler clearly demonstrated cause for his requested exten-
sion. In his request, Koehler pointed out that The Reefs' claim that
Koehler failed to conduct discovery in the period allowed was prema-
ture because the scope of the period allowed had not yet been finally
determined. Allowing Koehler to obtain a ruling on his objections to
Judge Klein's refusal to extend the time for discovery could have
saved Koehler from having to respond to the motion to dismiss and
saved the district court from having to rule on the motion. Moreover,
granting Koehler's request could not have been expected to cause sig-
nificant delay. Koehler's response to the motion to dismiss was due
August 4, 1997, and his objections to Judge Klein's order denying the
request for further time for discovery were due by August 8. Koehler
requested only ten days from the ruling on his objections to Judge
Klein's order in which to respond to the motion to dismiss. Indeed,
The Reefs conceded at oral argument that it would have suffered no
prejudice from such a delay. Considering that Koehler requested an
extension before the original period prescribed for his response
expired, that he clearly advanced cause for his request, and that grant-
ing the request would not have significantly delayed the action, we
hold that the denial of Koehler's motion did not serve to "secure the
just . . . determination" of this action and therefore constituted an
abuse of discretion.

III.

Koehler next contends that the district court erred in dismissing the
garnishment action. We agree. The Reefs advances three bases upon
which it maintains that the dismissal was justified. We address them
seriatim.

                    6
The Reefs first maintains that dismissal is supported by Maryland
Rule of Civil Procedure 2-645(g), which states:

          If the garnishee files a timely answer, the matters set forth
          in the answer shall be treated as established for the purpose
          of the garnishment proceeding unless the judgment creditor
          files a reply contesting the answer within 30 days after its
          service. If a timely reply is not filed, the court may enter
          judgment upon request of the judgment creditor, the judg-
          ment debtor, or the garnishee.

Md. R. Civ. P. 2-645(g) (emphasis added). This rule plainly does not
apply here because the document that The Reefs claims is its "an-
swer" was not "timely." Maryland Rule 2-321 requires the filing of
an answer within 30 days of service within Maryland. See id. 2-
321(a). From the latest personal service in Baltimore on September
12, 1994, The Reefs waited almost two years to file what it character-
izes as its answer.

The Reefs also maintains that the dismissal of this action was
"equivalent to a F.R.C.P., Rule 56(c) motion for summary judgment
and a F.R.C.P., Rule 12(c) judgment on the pleadings." Brief of Gar-
nishee/Appellee at 19. The order of dismissal makes clear, however,
that the dismissal was not based on any deficiency in the pleadings.1
Nor can the dismissal be affirmed as a grant of summary judgment
on the basis that Koehler has failed to create a genuine issue of mate-
rial fact regarding whether The Reefs holds any assets that can be gar-
nished, because the district court has never ruled on that question.2
_________________________________________________________________
1 As we have noted, the court relied upon the facts that Koehler failed
to respond to The Reefs' motion to dismiss and failed to diligently pur-
sue discovery.

2 The Reefs argues that Koehler responded to the motion to dismiss in
his motion for reconsideration of the subsequent dismissal. Nevertheless,
Judge Smalkin's order denying Koehler's motion for reconsideration
makes clear that the denial was not based on an evaluation of affidavits
or evidence submitted by Koehler, but rather on Judge Smalkin's conclu-
sion that dismissing the action without allowing Koehler to respond to
the motion to dismiss was within his discretion.

                    7
The Reefs finally maintains that the dismissal was justified as a
sanction for failure to complete discovery by July 11, 1997. See Fed.
R. Civ. P. 41(b) (allowing involuntary dismissal for failure by the
plaintiff to prosecute). We disagree. In deciding whether to dismiss
a case for failure to prosecute, a court must consider four factors: "(1)
the plaintiff's degree of personal responsibility; (2) the amount of
prejudice caused the defendant; (3) the presence of a drawn out his-
tory of deliberately proceeding in a dilatory fashion; and (4) the effec-
tiveness of sanctions less drastic than dismissal." Hillig v.
Commissioner, 916 F.2d 171, 174 (4th Cir. 1990).

Here, the first factor arguably weighs in favor of dismissal in that
Koehler might be held personally responsible for West's failure to
pursue discovery because West was his law partner. 3 Review of the
other factors demonstrates that dismissal as a sanction would have
been unjustified, however. The Reefs was not prejudiced by Koeh-
ler's failure to take advantage of the time allotted to him for discov-
ery, and there was no history of deliberate delay by Koehler.4 More-
over, Judge Smalkin gave no indication that he considered the
effectiveness of less drastic sanctions, such as an award of attorneys'
fees, and we are aware of no reason why a less drastic sanction would
not have been effective. Accordingly, dismissal of the action is not
justifiable under Rule 41(b).

IV.

In sum, we conclude that Judge Smalkin erred in denying Koeh-
ler's request for an extension of time in which to respond to The
_________________________________________________________________
3 Koehler contends that West took over responsibility for discovery
only on July 14, 1997, and that prior to that date another attorney was
managing discovery. However, in his July 14 letter to Magistrate Judge
Klein, West offers the demands of his practice over the preceding three
months as the reason Koehler did not complete discovery in the allotted
time.
4 Koehler's failure to take advantage of the time allotted for discovery
did not delay the proceedings because the time was allotted for discovery
whether he used it or not and his motion for enlargement of the time for
discovery was denied.

                     8
Reefs' motion to dismiss and in dismissing the action. Accordingly,
we reverse and remand for further proceedings.

REVERSED AND REMANDED

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