                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 99-2174
                                     ___________

Timothy S. Hunt,                        *
                                        *
              Appellant,                *
                                        *
       v.                               *
                                        * Appeal from the United States
City of Minneapolis, Minnesota; Police * District Court for the
Officers, personally and in their       * District of Minnesota.
capacities as employees/agents of the   *
City of Minneapolis; Dan Wells;         *
Jeffery Marcell; Anthony Barragan;      *
John or Jane Doe, Police Officers,      *
Other (whose identities are unknown at *
this time),                             *
                                        *
              Appellees.                *
                                   ___________

                           Submitted: October 22, 1999
                         Initially Filed: December 9, 1999
                     Opinion Vacated, Rehearing Granted, and
                  Opinion Refiled as Modified: * February 11, 2000


      *
        Appellant Hunt has filed a petition for rehearing en banc. Pursuant to Eighth
Circuit Rule 40A(b), we granted rehearing by the panel. Having reviewed the entire
record, we conclude that, with one exception, the points raised in the petition lack
merit. The district court was justified in disregarding Hunt’s late-filed statement of the
case and motions in limine, and Hunt concedes that his witness list was inadequate, that
he failed to make several exhibits available for review by opposing counsel, and that
                                     ___________

Before WOLLMAN, Chief Judge, ROSS and LOKEN, Circuit Judges.
                             ___________




he failed to disclose his ability to perform “administrative or light duty functions” for
the Army National Guard, as sworn to by the officer in charge of his unit. Moreover,
Hunt’s attempts to minimize the impact of his pattern of dilatory conduct throughout
this case are unavailing, particularly in light of the need for an order to compel
discovery and the previous issuance of sanctions against him.

       Hunt does correctly point out, however, that the district court may have
overlooked Hunt’s September 9, 1997, disclosure of Dr. David Schultz when it
concluded that Hunt would have been “precluded from offering any expert testimony”
even if the witness list he submitted on February 23, 1999, had complied with the
January 20, 1999, court order. Although it appears to be erroneous, this statement by
the district court served merely as an alternative basis for dismissal. The district court
had already properly concluded that Hunt was “precluded from offering any exhibits
or witnesses at trial” on the basis of the noncompliant witness list, and the prior
disclosure of one expert witness does not change this fact. Moreover, Hunt’s failure
to disclose his Army Reserve duty left him unable to prove his loss of earnings claim.
Thus, because we are convinced that the district court would have dismissed the case
even if it had been aware of the 1997 disclosure, and because it would have been well
within its discretion in doing so, we find that its conclusion that no expert testimony
would have been available to Hunt even if the witness list had been compliant
constituted harmless error. See Knoth v. Smith & Nephew Richards, 195 F.3d 355,
357 (8th Cir. 1999). We therefore reinstate our original opinion, as herein modified,
affirming the dismissal with prejudice.

                                           -2-
WOLLMAN, Chief Judge.

       Timothy S. Hunt appeals the district court's1 dismissal with prejudice of his civil
rights and tort claims against the City of Minneapolis and certain police officers arising
out of Hunt's 1995 arrest. We affirm.

                                            I.

       Hunt was arrested in October 1995 outside The Gay Nineties, a Minneapolis
night club, in connection with an altercation that had occurred inside the bar. In
November 1996, he named the city and several police officers in a complaint alleging
excessive force in violation of 42 U.S.C. § 1983, as well as raising several state law
tort claims. Hunt subsequently amended his complaint to include additional police
officers. The district court entered summary judgment against Hunt on some of his
claims and found that some of the officers named in the lawsuit were not present at the
arrest.2 The remaining claims were scheduled for trial on March 1, 1999.

        On January 20, 1999, the district court issued a detailed pretrial order specifying
that all motions in limine must be filed no later than February 16, with responses due
by February 23, and requiring both parties to submit a statement of the case, exhibit list,
witness list, and list of deposition testimony by February 23. The order indicated that
only exhibits, witnesses, and deposition testimony properly listed in accordance with
its specifications would be admissible into evidence.




      1
      The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
      2
        Appellee Anthony Barragan asserts in this appeal that he too was not at the
arrest scene and should never have had to defend himself in this lawsuit. Because we
affirm the district court's dismissal of the entire case, we need not reach this issue.

                                           -3-
       Between the issuance of the pretrial order and the date set for trial, the following
events occurred. First, on February 11 the court learned that Hunt had performed light
administrative work in October of 1998 in connection with Army Reserve duty,
contrary to his earlier deposition testimony that he was completely unable to work
because of permanent and total disability. Second, Hunt failed to file his motions in
limine or his responses to defendants' motions in limine until February 24. Third, Hunt
neglected to submit a statement of the case. Fourth, Hunt disregarded the court's order
by not making his exhibits available for review. Fifth, Hunt's witness list did not
include the witnesses' addresses or summaries of their testimony. Finally, the witness
list improperly indicated that Hunt intended to call as an expert witness Dr. Michael G.
Farnsworth, whom he had not previously designated as an expert witness pursuant to
Federal Rule of Civil Procedure 26(a)(2)(B).

       Based on these instances of noncompliance, the district court dismissed Hunt's
case with prejudice on February 26, 1999. The court characterized Hunt's failure to
disclose his ability to perform light administrative work as "an egregious violation of
his ongoing duty to supplement discovery as provided in the Federal Rules of Civil
Procedure," and noted previous difficulties in securing Hunt's compliance with
deposition requests. Because Hunt’s prior behavior in the case had necessitated
multiple orders to compel discovery and had even led to a threat to dismiss the case
with prejudice unless Hunt agreed to submit to a mental examination, the court
determined that his repeated violation of court orders and the Federal Rules was willful
and intentional. After observing that Hunt could not offer any witnesses or exhibits
because of his multiple violations of the pretrial order, the district court concluded that
trial would be a futile waste of judicial resources and that dismissal was the appropriate
response.




                                           -4-
                                           II.

       The Federal Rules of Civil Procedure permit dismissal with prejudice "[f]or
failure of a plaintiff to prosecute or to comply with these rules or any order of court."
Fed. R. Civ. P. 41(b). Despite the breadth of this language, however, we have
recognized that dismissal with prejudice is an extreme sanction that should be used only
in cases of willful disobedience of a court order or where a litigant exhibits a pattern
of intentional delay. See Hutchins v. A.G. Edwards & Sons, Inc., 116 F.3d 1256, 1260
(8th Cir. 1997). This does not mean that the district court must find that the appellant
acted in bad faith, but requires "only that he acted intentionally as opposed to
accidentally or involuntarily." Rodgers v. Univ. of Missouri, 135 F.3d 1216, 1219 (8th
Cir. 1998). We review for clear error the district court's factual finding of a willful
disregard of court orders or of a pattern of persistent delay. See id.

       Even where the facts might support dismissal with prejudice, this "ultimate
sanction . . . should only be used when lesser sanctions prove futile." Id. at 1222
(citations and quotation marks omitted). "A district court should weigh its need to
advance its burdened docket against the consequence of irrevocably extinguishing the
litigant's claim and consider whether a less severe sanction could remedy the effect of
the litigant's transgressions on the court and the resulting prejudice to the opposing
party." Hutchins, 116 F.3d at 1260 (citation omitted). Because district courts are
"more familiar with proceedings before them and with the conduct of counsel than we
are," we give them "a large measure of discretion in deciding what sanctions are
appropriate for misconduct." Id. (citation and quotation marks omitted). Although we
have encouraged district courts to warn litigants when they are "skating on the thin ice
of dismissal," such admonitions are not necessary to sustain a Rule 41(b) dismissal.
Rodgers, 135 F.3d at 1221. The ultimate decision of what sanctions are appropriate
is reviewed for abuse of discretion. See Hutchins, 116 F.3d at 1260.




                                          -5-
       We conclude that the district court did not err in finding that Hunt engaged in a
persistent pattern of intentional delay by willfully disregarding court orders and
violating the Federal Rules. The question might be a closer one if Hunt had failed to
follow only one or two of the court's specific instructions. See, e.g., Givens v. A.H.
Robins Co., Inc., 751 F.2d 261, 263-64 (8th Cir. 1984) (reversing dismissal order
where litigant's sole transgression was failing to comply with a discovery deadline).
As it was, however, the district court was presented with a pattern of dilatory conduct
that began well before the January 20 pretrial order was issued. For example, in 1997
Hunt had to be ordered to appear at his own deposition after failing to appear once and
then, after it had been rescheduled, unilaterally canceling at the last minute; when he
finally did show up pursuant to the court order, Hunt walked out upon learning that the
deposition was to be recorded.

        Then, between the issuance of the pretrial order and the date trial was set to
commence, Hunt engaged in at least six distinct violations of the court's orders or of the
Federal Rules. These included missing deadlines for the submission of motions in
limine, failing to comply with numerous specific requirements set forth in the pretrial
order, listing a previously undesignated expert witness (Dr. Farnsworth) in violation of
Rule 26(a)(2)(B), and tardily revealing evidence of work history that contradicted
Hunt's deposition testimony and seriously undermined his claim for damages. We hold
that it was not clear error for the district court to conclude that this behavior, taken
together, amounted to a persistent pattern of delay, willful violation of court orders, and
intentional disregard of the Federal Rules. See Hutchins, 116 F.3d at 1260.

      Hunt argues that much of his noncompliance is justified by his struggle with Post
Traumatic Stress Disorder (PTSD). This claim is similar to one we recently rejected
in Rodgers, where the appellant urged that his "cognitive disabilities secondary to
traumatic closed head injuries" rendered his acts of noncompliance involuntary or
accidental. Rodgers, 135 F.3d at 1222. We upheld dismissal with prejudice in


                                           -6-
Rodgers, finding that the injuries had not contributed to the appellant's behavior that led
to dismissal. See id.

       We reach the same conclusion here. Although Hunt's PTSD may have affected
his behavior at the deposition and medical examination, it clearly was not responsible
for the vast majority of the delays caused by Hunt and his attorney.3 Therefore, PTSD
cannot provide an excuse for their numerous and varied failures to comply with court
orders and procedural rules.

       In light of the foregoing, we hold that dismissal was a justifiable and
proportionate response to a demonstrated pattern of dilatory conduct. Hunt's multiple
violations on the eve of trial burdened the court and prejudiced the defendants. See
Hutchins, 116 F.3d at 1260. Moreover, the district court considered the possibility of
imposing an appropriate lesser sanction – preventing introduction of the exhibits and
testimony that had been rendered inadmissible by Hunt's failure to comply with the
pretrial order. See Fed. R. Civ. Pro. 16(f) (authorizing, by reference to Rule
37(b)(2)(B), exclusion from evidence of designated matters where a party fails to
comply with a pretrial order); cf. Rodgers, 135 F.3d at 1222; Hutchins, 116 F.3d at
1260. Because this preclusion would have left Hunt totally unable to prove his claims,
however, the district court was left with no practical alternative but to dismiss the case
with prejudice.



      3
        Hunt’s counsel attempts to explain the delays by arguing that his schedule was
overburdened and that he was confused by his simultaneous participation in state and
federal cases. Such excuses cannot be deemed valid, however, lest the courts be
rendered unable to enforce any orders or procedural rules. Cf. Sutherland v. ITT
Continental Baking Co., Inc., 710 F.2d 473, 475-77 (8th Cir. 1983) (attorney
carelessness is not "excusable neglect" under Rule 60(b)); Buckley v. United States,
382 F.2d 611, 613-15 (10th Cir. 1967) (attorney's busy law practice does not excuse
errors so as to justify relief under predecessor to Rule 60(b)).

                                           -7-
The judgment is affirmed.

A true copy.

      Attest:

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




                            -8-
