                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 April 10, 2008
                                No. 07-13238                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                      D. C. Docket No. 06-80334-CV-WJZ

RENEE BETTIS,


                                                                Plaintiff-Appellant,

                                     versus

TOYS "R" US - DELAWARE, INC.,
a Delaware Corporation,

                                                              Defendant-Appellee.

                          ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                                (April 10, 2008)

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

     Renee Bettis appeals the district court’s dismissal without prejudice of her
employment discrimination action, brought pursuant to Title VII, 42 U.S.C.

§ 2000e, the Pregnancy Discrimination Act (“PDA”), 42 U.S.C. § 2000e(k), the

Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, and the Florida Civil

Rights Act (“FCRA”), Fla. Stat. § 760.11. For the following reasons, we vacate

and remand.

                                           I.

      Bettis filed a six count complaint against Toys “R” Us, alleging gender

discrimination under Title VII and the FCRA and violations of the PDA in

connection with changes to the terms of her employment and her ultimate

discharge. The court later granted Bettis’s motion to amend her complaint to add

one count under the FMLA.

      On July 16, 2006, the court issued its order setting the pre-trial conference

date for June 29, 2007, and advising the parties, inter alia, to be ready for trial any

time after that date and that pre-trial stipulations were due by June 15, 2007.

Dispositive motions were due April 30, 2007.

      Toys “R” Us began its deposition of Bettis on February 6, 2007. Because

Bettis had not submitted all the documents requested, the parties agreed to continue

the deposition at a later date. When Bettis amended her complaint to include the

FMLA claim, the parties agreed that this issue would be addressed at a subsequent



                                            2
deposition in March 2007. Bettis, however, canceled the deposition a week before

it was scheduled to occur.

       During discovery, Toys “R” Us filed a motion to compel discovery requests,

asserting that Bettis’s responses to discovery requests had been inadequate,

evasive, incomplete, and unresponsive.1 Prior to filing the motion to compel,

defense counsel attempted to resolve the discovery disputes with Bettis’s counsel,

and Bettis’s counsel expressed an intent to supplement the responses. However,

counsel failed to follow through. The district court ordered Bettis to respond to the

motion to compel within ten days or the court would grant the motion. After

receiving Bettis’s response, the court then granted the motion to compel in part,

ordering Bettis to file proper responses to two interrogatories by April 4, 2007. Per

the court’s order, Bettis submitted “plaintiff’s better answers to defendant’s first

set of interrogatories.” Toys “R” Us did not consider the answers acceptable and

filed a motion for sanctions for the failure to comply with the court’s order. The

court granted the motion for sanctions because Bettis failed to comply with the

court’s order to answer the interrogatories, and instructed Bettis to answer by May



       1
           We note that the record reflects that throughout the litigation, Bettis’s counsel was
uncooperative, failed to correspond with defense counsel or to respond to defense counsel’s
communications, and failed to comply with the court’s orders. In addition, during depositions,
Bettis’s attorney repeatedly instructed Bettis not to answer questions, interrupted defense counsel,
and coached the witness.

                                                 3
1 or face contempt or dismissal.

      Toys “R” Us moved (1) to compel Bettis’s deposition, (2) for sanctions due

to discovery violations, and (3) for an extension of time to file dispositive motions.

The court granted the motion to compel the deposition, but denied the motion for

sanctions and for an extension of time. The deposition was rescheduled for April

11, 2007.

      Toys “R” Us then filed a motion for a protective order with respect to

Bettis’s fourth set of requests to admit, which included 399 requests, and the

subsequent corrected version, which listed 375 requests. Toys “R” Us noted that

the case was a single issue, “garden variety” employment action, and that the

requests were duplicative, overbroad, repetitive, and irrelevant. On April 30,

2007, the court granted a protective order with respect to the fourth corrected set of

requests to admit, but otherwise denied the motion. That same day, Bettis filed her

opposition to the protective order.

      Toys “R” Us moved for summary judgment on April 30, 2007, and later

amended the motion after it learned that Bettis had not disclosed her bankruptcy

filing during her depositions. On May 2, 2007, the day after Bettis’s responses

were due, Toys “R” Us moved for relief due to Bettis’s failure to respond to the

court’s order to answer the interrogatories, asserting that the response, which was



                                           4
received a day late, was still deficient. Bettis requested an extension to respond to

the summary judgment motion, and the court granted the request, ordering Bettis to

respond to the amended summary judgment motion by noon on June 11, 2007. On

June 11, at 12:53 pm, Bettis filed her response.

       Per the court’s order at the beginning of the case, the pre-trial stipulations

were due June 15, 2007. On June 14, Bettis filed a motion for extension of time.2

Toys “R” Us responded that it had made several attempts to coordinate the pre-trial

statement with Bettis’s counsel, but that counsel had refused to respond and had

waited until the day before the statement was due to seek the extension. The court

denied Bettis motion for an extension of time. The court then sua sponte issued a

“final order of dismissal,” dismissing the complaint without prejudice for failure to

comply with the court’s order to set a pre-trial conference and to comply with

Local Rule 16.1.3 The court denied all pending motions as moot.

       Bettis now appeals, challenging the court’s dismissal without prejudice, the

decision granting a protective order on discovery requests, and arguing that the

district court judge should have recused himself due to bias. She further asserts

that, on remand, the case should be reassigned to a different judge. Toys “R” Us

       2
           Bettis filed the motion after 5 p.m. on June 14.
       3
          Rule 16.1 governs pre-trial procedure in civil actions. S.D. Fla. L. R. 16.1. This rule also
requires the parties to file pre-trial stipulations. Rule 16.1(E). The penalty for failure to comply
includes dismissal. Rule 16.1(M).

                                                  5
also challenges whether we have jurisdiction over the appeal.

                                                  II.

         A. Jurisdiction

         Toys “R” Us argues that there is no final order disposing of all claims

because the FCRA and FMLA claims can be refiled within the limitations period.

According to Toys “R” Us, where a party seeks to appeal fewer than all claims, the

district court must certify the appeal under Fed. R. Civ. P. 54(b).4

         We review de novo questions concerning jurisdiction. Williams v. Chatman,

510 F.3d 1290, 1293 (11th Cir. 2007). Where there is a question as to the court’s

appellate jurisdiction, we must address it before turning to the merits of the appeal.

Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d 1228, 1229 (11th Cir.

2007).

         Section 1291 provides the general rule that this court has “jurisdiction of

appeals from all final decisions of the district courts of the United States.” 28

U.S.C. § 1291. Because the district court’s order in the instant case disposed of all

claims, we have jurisdiction. Robinson v. Federal Nat. Mortg. Ass’n, 673 F.2d

         4
           Rule 54(b) is inapplicable here. Under Fed. R. Civ. P. 54(b), “[w]hen an action presents
more than one claim for relief . . . the court may direct entry of a final judgment as to one or more,
but fewer than all, claims or parties only if the court expressly determines that there is no just reason
for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than
all the claims . . . does not end the action as to any of the claims or parties and may be revised at any
time before the entry of a judgment adjudicating all the claims . . . .” Fed. R. Civ. P. 54(b). Here,
the court adjudicated all the claims by dismissing the amended complaint without prejudice.

                                                   6
1247, 1249 (11th Cir 1982).

       B. Dismissal without prejudice

       Bettis argues that although the court dismissed without prejudice, the fact

that the limitations period has run on some of her claims makes the dismissal the

equivalent of a dismissal with prejudice. She contends that the court failed to

determine if lesser sanctions would suffice, and failed to consider whether there

was a clear record of willful conduct.

       We review dismissals under Fed.R.Civ.P. 41 for abuse of discretion.5

Gratton v. Great American Communications,178 F.3d 1373, 1374 (11th Cir. 1999);

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985). “Discretion means the

district court has a ‘range of choice, and that its decision will not be disturbed as

long as it stays within that range and is not influenced by any mistake of law.’”

Betty K Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005)

(quoting Guideone Elite Ins. Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d

1317, 1324 (11th Cir. 2005)).

       The district court possesses the inherent power to police its docket. Link v.



       5
           The district court also has broad authority under Rule 37 to control discovery, including
dismissal as the most severe sanction. See Fed.R.Civ.P. 37(b)(2)(C); Phipps v. Blakeney, 8 F.3d
788, 790 (11th Cir. 1993) (reviewing dismissal under Rule 37 for abuse of discretion). Rule 37
sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the
discovery process. See Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982).

                                                 7
Wabash R.R. Co., 370 U.S. 626, 629-30, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734

(1962). Rule 41(b) authorizes a district court to dismiss a complaint for failure to

comply with a court order or the federal rules. Fed.R.Civ.P. 41(b); Goforth, 766

F.2d at 1535. As this court has explained,

      [A] dismissal with prejudice, whether on motion or sua sponte, is an
      extreme sanction that may be properly imposed only when: (1) a party
      engages in a clear pattern of delay or willful contempt (contumacious
      conduct); and (2) the district court specifically finds that lesser
      sanctions would not suffice.... Moreover, the harsh sanction of
      dismissal with prejudice is thought to be more appropriate in a case
      where a party, as distinct from counsel, is culpable.

Betty K. Agencies Ltd., 432 F.3d at 1339; Gratton, 178 F.3d at 1374; Goforth, 766

F.2d at 1535.

      Thus, dismissal under Rule 41(b) is appropriate where there is a clear record

of “willful” contempt and an implicit or explicit finding that lesser sanctions would

not suffice. Gratton, 178 F.3d at 1374; see also Zocaras v. Castro, 465 F.3d 479,

484 (11th Cir. 2006); Goforth, 766 F.2d at 1535. Mere negligence or confusion is

not sufficient to justify a finding of delay or willful misconduct. McKelvey v. AT

& T Techs., Inc., 789 F.2d 1518, 1520 (11th Cir. 1986). In general, where the

plaintiff has been forewarned, dismissal following the plaintiff’s disregard of an

order is not an abuse of discretion. Moon v. Newsome, 863 F.2d 835, 837 (11th

Cir. 1989).



                                          8
       Here, although the court dismissed the complaint without prejudice, some of

Bettis’s claims would now be time barred;6 thus the dismissal was in effect a

dismissal with prejudice. When an order “has the effect of precluding [plaintiff]

from refiling [her] claim due to the running of the statute of limitations ... [t]he

dismissal [is] tantamount to a dismissal with prejudice.” Burden v. Yates, 644

F.2d 503, 505 (5th Cir. Unit B 1981).7

       After a thorough review of the record, we conclude that the district court

abused its discretion by dismissing the complaint. Although the record is replete

with instances in which Bettis’s counsel failed to comply with court orders, and the

court warned Bettis that the failure to comply could result in dismissal, there is no

explicit finding that the conduct was willful and not mere negligence. And, based

on the record before us, we cannot infer such a finding. Moreover, although the

court imposed other sanctions, those sanctions were to compel discovery and did

not include fines, contempt, or disciplinary actions against the attorney. Because


       6
          As the parties concede, the Title VII and PDA claims are time-barred. The FMLA claims
either expired in 2007 or are still viable until August of 2008, depending on whether the two or
three-year limitations period applies. 29 U.S.C. § 2917(c). The only remaining claims are the
FCRA issues, which enjoy a four-year limitations period. Fla. Stat. § 760.11(1).
       7
            The decisions of the former Fifth Circuit rendered before October 1, 1981 are binding on
this circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). After that
date, however, only the decisions of the continuing Fifth Circuit’s Administrative Unit B are binding
on this circuit, while Unit A decisions are merely persuasive. Dresdner Bank AG v. M/V
OLYMPIA VOYAGER, 446 F.3d 1377, 1381 n.1 (11th Cir. 2006); Stein v. Reynolds Sec., Inc., 667
F.2d 33, 34 (11th Cir. 1982).

                                                 9
the dismissal is, in effect, with prejudice, the district court abused its discretion,

and we vacate and remand with instructions for the court to consider other

sanctions.

       C. Protective Order

       Bettis next argues that the court abused its discretion by granting the motion

for a protective order without waiting for her to file her response.

       We review the district court’s efforts to manage discovery for abuse of

discretion. Adkins v. Christie, 488 F.3d 1324, 1330 (11th Cir. 2007), cert. denied,

128 S.Ct. 903 (2008); Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th

Cir. 1999). This court will reverse if it concludes that in limiting discovery, the

district court “made a clear error of judgment ... or ... applied an incorrect legal

standard.” Peat, Inc. v. Vanguard Research, Inc., 378 F.3d 1154, 1159 (11th Cir.

2004) (citing Alexander v. Fulton County, 207 F.3d 1303, 1326 (11th Cir. 2000)).

       Federal Rule of Civil Procedure 26(c) specifically provides that a party may

file a motion for a protective order to:

       protect a party or person from annoyance, embarrassment, oppression,
       or undue burden or expense, including ... including one or more of
       the following: (A) forbidding the disclosure or discovery; (B)
       specifying terms, including time and place, for the disclosure or
       discovery; (C) prescribing a discovery method other than the one
       selected by the party seeking discovery; (D) forbidding inquiry into
       certain matters, or limiting the scope of disclosure or discovery to
       certain matters.

                                            10
Fed.R.Civ.P. 26(c)(1(A)-(D).

       Considering the court’s inherent power to manage its docket, Link, 370 U.S.

at 629-630, we conclude that the court did not abuse its discretion. Bettis

submitted her fourth request for admissions, which contained 399 requests. She

then submitted a corrected version, which contained 375 requests. The case

involved a single issue employment claim and the requests were repetitive and

sought irrelevant information.

       With respect to whether there was an abuse stemming from the court’s

granting of the motion prior to receiving Bettis’s response, there was no error.

Neither the Federal Rules of Civil Procedure nor the Local Rules require the court

to obtain a response from the non-moving party before ruling on a motion for a

protective order. See Fed. R. Civ. P. 26; S.D. Fla. L.R. 26.1(H)(3).

       D. Recusal and Reassignment

       Finally, Bettis argues that this court should assign the case to a different

judge on remand because the district judge should have recused himself due on

bias or the mere appearance of bias against working mothers in light of his

connections to a conservative, Christian law school and other conservative

organizations.8


       8
        Specifically, Bettis argues that the judge’s hiring of several law clerks from Ava Maria
Law School, his financial support of that school, and his participation in organizations such as the

                                                11
               1. Recusal

       Because Bettis failed to seek recusal of the district court judge in the

proceedings below by filing an affidavit pursuant to 28 U.S.C. § 144, we review

the judge’s decision not to recuse himself sua sponte under 28 U.S.C. § 455 for

plain error. Hamm v. Members of Bd. of Regents of State of Fla., 708 F.2d 647,

651 (11th Cir. 1983). “To disqualify a judge under § 455(a), the bias ‘must stem

from extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias

and prejudice that it unfairly prejudices one of the parties.’”9 United States v.

Bailey, 175 F.3d 966, 968 (11th Cir. 1999). An adverse ruling does “‘not provide

a party with a basis for holding that the court’s impartiality is in doubt.’” Byrne v.

Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001)).

       Here, there was no plain error in the judge’s failure to sua sponte recuse.

Bettis has established no bias – or even an appearance of bias. Moreover, a review

of the record establishes that the court was even-handed in resolving the motions

before it.

               2. Reassignment on remand


Federalist Society establish bias.
       9
           The federal code provides: “Any justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned . . . He shall also disqualify himself in the following circumstances: (1) Where he has
a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).

                                                12
         This court has authority to reassign a case on remand. See 28 U.S.C. § 2106

(1994); United States v. Remillong, 55 F.3d 572, 577-78 n.12 (11th Cir. 1995).

Three factors inform the decision to reassign a case on remand: “(1) whether the

original judge would have difficulty putting his previous views and findings aside;

(2) whether reassignment is appropriate to preserve the appearance of justice; (3)

whether reassignment would entail waste and duplication out of proportion to the

gains realized from reassignment.” Chudasama v. Mazda Motor Corp.,123 F.3d

1353, 1373 (11th Cir. 1997) (citation omitted); see also CSX Transp., Inc. v. State

Bd. of Equalization, manuscript op. at 2-3 (No. 05-16000) (11th Cir. Mar. 25,

2008).

         Considering these factors, we conclude reassignment is unnecessary.

Notably, the facts Bettis relies upon to argue an appearance of impropriety were

not before the district court. Rather, it seems that she is attempting to create an

appearance of impropriety to further her request for recusal and reassignment.

There is no appearance of impropriety. Moreover, this case has been pending for a

significant length of time, and although the case is not complex, it would be a

waste of judicial resources to reassign the case. Accordingly, we decline to order

the case reassigned on remand.

         VACATED and REMANDED.



                                           13
