227 F.3d 854 (7th Cir. 2000)
Leroy Bolt, Plaintiff-Appellant,v.Robert Loy and Village of Winthrop Harbor, Defendants-Appellees.
No. 00-1280
In the  United States Court of Appeals  For the Seventh Circuit
Argued August 9, 2000
Decided September 13, 2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern Division.  No. 99 C 2841--William J. Hibbler, Judge.
Before Posner, Ripple, and Williams, Circuit Judges.
Posner, Circuit Judge.


1
This appeal from the  dismissal of a suit because of the plaintiff's  failure to meet a deadline presents a new twist  on the old problem of dismissal as a sanction for  untimely pleadings. The plaintiff filed this suit  under 42 U.S.C. sec. 1983 in April of last year  in state court, from which the defendants removed  the case to federal district court (an odd move,  considering that the defendants are an Illinois  municipality and its head). The defendants then  filed a motion to dismiss the suit for failure to  state a claim. Fed. R. Civ. P. 12(b)(6). The  plaintiff asked for and received an extension of  time until September 15 to respond to the motion.  On December 9, the plaintiff having failed to  file his response, the defendants asked the judge  to set a definite briefing schedule. They noticed  the motion for a hearing before him on January 5,  and the plaintiff filed his response that day,  but it was too late, for on the previous day the  judge had dismissed the suit with prejudice  because of the plaintiff's failure to file a  response. The judge pointed out that the response  was nearly three months overdue, and concluded  that the plaintiff had abandoned the case,  adding: "had plaintiff not intended to respond to  defendants' motion, he should have submitted a  one-page motion to voluntarily dismiss this  action." The judge did not address the merits of  the defendants' Rule 12(b)(6) motion. The  plaintiff promptly filed a motion to alter the  judgment, pointing out that he had not intended  to abandon the case. The judge denied the motion  without explanation.


2
We can think of three possible grounds for  dismissing a suit because a response by the  plaintiff to a defendant's motion is overdue: the  plaintiff by his action has indicated that he is  abandoning his suit; the plaintiff is failing to  prosecute the suit, whether or not he intends to  abandon it; the plaintiff should be sanctioned,  by dismissal, for his tardiness. The judge's  ground was the first, that the plaintiff by his  tardiness had demonstrated his intention to  dismiss the suit; that is why the judge chided  the plaintiff for not moving for voluntary  dismissal. It was unreasonable for the judge to  draw such an inference and to fail to correct it  when the error was pointed out to him. There are  a myriad of reasons why a party might be months  late in responding to a motion. The likeliest,  and apparently the one here, is carelessness,  rather than intent to abandon the suit. Another  possibility, one we encounter frequently in our  court, is that the party opposing the motion  thinks the motion's lack of merit so patent that  no response is required. When that happens the  court either orders the party to respond or  decides the motion without the benefit of a  response. The district judge might have decided  the defendants' motion to dismiss on the merits  when the plaintiff missed the deadline for  responding, a risk the plaintiff knew he was  running because the judge had indicated that he  would rule on the motion by mail, implying that  the ruling could come anytime after September 15.  See N.D. Ill. R. 12(P).


3
A plaintiff's failure to respond that delays the  litigation can be a basis for a dismissal for  lack of prosecution, Link v. Wabash R.R., 370  U.S. 626, 629, 633 (1962), or, what often amounts  to the same thing, see Fed. R. Civ. P. 41(b);  Federal Election Comm'n v. Al Salvi for Senate  Comm., 205 F.3d 1015, 1018 (7th Cir. 2000), as a  sanction for misconduct. But the judge should  warn the plaintiff that he is considering the  imposition of such a sanction, Kruger v. Apfel,  214 F.3d 784, 787 (7th Cir. 2000); Ball v. City  of Chicago, 2 F.3d 752, 755 (7th Cir. 1993);  Gardner v. United States, 211 F.3d 1305, 1309-10  (D.C. Cir. 2000); Angulo-Alvarez v. Aponte de la  Torre, 170 F.3d 246, 252 (1st Cir. 1999); but cf.  Hunt v. City of Minneapolis, 203 F.3d 524, 527  (8th Cir. 2000), either explicitly or by making  clear that no further extensions of time will be  granted. Williams v. Chicago Board of Education,  155 F.3d 853 (7th Cir. 1998) (per curiam); In re  Bluestein & Co., 68 F.3d 1022, 1027 (7th Cir.  1995); Patterson by Patterson v. Coca Cola  Bottling Co., 852 F.3d 280, 285 (7th Cir. 1988)  (per curiam). Even without a warning, egregious  misconduct can be punished by dismissal. In re  Bluestein & Co., supra, 68 F.3d at 1026; In re  Eisen, 31 F.3d 1447, 1455 (9th Cir. 1994).


4
Ordinary misconduct, however, can be punished by  dismissal only after a warning and after the  judge determines that dismissal is an appropriate  sanction in the circumstances. Kovilic  Construction Co. v. Missbrenner, 106 F.3d 768,  773 (7th Cir. 1997); see also Ball v. City of  Chicago, supra, 2 F.3d at 758. That requires him  to consider the gravity of the misconduct, the  prejudice if any to the defendant, and whether  the suit has any possible merit (if not, there is  no reason to keep it alive). Id. at 759-60;  Williams v. Chicago Board of Education, supra,  155 F.3d at 857; Knoll v. American Tel. & Tel.  Co., 176 F.3d 359, 363 (6th Cir. 1999). The  touchstone is proportionality. It will be open to  the district court on remand, therefore, to  consider whether under the governing standards  dismissal of this suit with prejudice would be an  appropriate sanction for the plaintiff's failure  to respond to the defendants' motion to dismiss  until January 5; whether an alternative sanction,  such as not allowing the plaintiff's response to  be filed and deciding the Rule 12(b)(6) motion on  the merits without the aid of that response,  would be more appropriate, see LeBeau v. Taco  Bell, Inc., 892 F.2d 605, 610 (7th Cir. 1989);  Gardner v. United States, supra, 211 F.3d at  1309-10; Garland v. Peebles, 1 F.3d 683, 687 (8th  Cir. 1993); Doyle v. Murray, 938 F.2d 33, 34 (4th  Cir. 1991); or whether no sanction would be  appropriate, given the absence of prejudice to  the defendants and the fact that the plaintiff's  tardiness, while careless and regrettable, was  not egregious. It also was not his error but his  lawyer's, and it is ordinarily preferable (see  Dunphy v. McKee, 134 F.3d 1297, 1301-02 (7th Cir.  1998); Ball v. City of Chicago, supra, 2 F.3d at  758; Adams v. Trustees of New Jersey Brewery  Employees' Pension Trust Fund, 29 F.3d 863, 873  (3d Cir. 1994)) to sanction the lawyer for the  lawyer's mistake than, by dismissing the suit, to  precipitate a second suit--a suit against the  lawyer for malpractice. The courts have more than  enough legal business as it is.


5
What is clear is that the ground upon which the  district judge did dismiss the plaintiff's suit  was, in the circumstances, improper.


6
Reversed and Remanded.

