                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 19a0090p.06

                   UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT



 PETER J. MAGER,                                        ┐
                                 Plaintiff-Appellant,   │
                                                        │
                                                        >      No. 18-1421
        v.                                              │
                                                        │
                                                        │
 WISCONSIN CENTRAL LTD.,                                │
                                Defendant-Appellee.     │
                                                        ┘

                        Appeal from the United States District Court
                     for the Western District of Michigan at Marquette.
                    No. 2:16-cv-00145—Gordon J. Quist, District Judge.

                                  Argued: April 30, 2019

                             Decided and Filed: May 15, 2019

                   Before: GUY, SUTTON, and NALBANDIAN, Circuit Judges.
                                 _________________

                                        COUNSEL

ARGUED: Michael B. Gunzburg, RIDGE & DOWNES, Chicago, Illinois, for Appellant. Mary
C. O’Donnell, GALLAGHER SHARP LLP, Detroit, Michigan, for Appellee. ON BRIEF:
Michael B. Gunzburg, James T. Foley, RIDGE & DOWNES, Chicago, Illinois, for Appellant.
Mary C. O’Donnell, GALLAGHER SHARP LLP, Detroit, Michigan, for Appellee.

        GUY, J., delivered the opinion of the court in which SUTTON and NALBANDIAN, JJ.,
joined. SUTTON, J. (pp. 12–14), delivered a separate concurring opinion.
                                    _________________

                                         OPINION
                                    _________________

      RALPH B. GUY, JR., Circuit Judge. Peter Mager sought to recover damages under the
Federal Employer’s Liability Act (FELA), 45 U.S.C. § 51, et seq., for injuries he allegedly
 No. 18-1421                  Mager v. Wisconsin Central Ltd.                            Page 2


sustained while employed by Wisconsin Central Ltd. (WCL) as a trackman at a railway yard near
Marquette, Michigan. Mager appeals the dismissal of his complaint with prejudice, which was
ordered as a sanction primarily for his and his attorney’s conduct at a court-ordered independent
medical examination. Reviewing the dismissal for abuse of discretion, we affirm.

                                               I.

       Mager alleged that he was seriously and permanently injured on July 29, 2013, when he
slipped on hydraulic oil that had leaked onto the rear deck of a truck where he was working.
Mager filed suit in June 2016, was deposed in June 2017, and was sent notice that defendant had
scheduled an independent medical examination (IME) in early August 2017. Plaintiff’s counsel,
James T. Foley, objected to the IME because the examiner’s office was in Appleton,
Wisconsin—a substantial drive from where Mager lived in the Upper Peninsula of Michigan.
That prompted WCL, through its counsel Mary O’Donnell, to move both for an order compelling
the IME pursuant to Rule 35(a) of the Federal Rules of Civil Procedure and to delay the third-
party mediation scheduled for late August 2017. At a hearing on the motion on September 27,
counsel reached an agreement at the magistrate judge’s urging. Namely, it was agreed that
Mager would submit to the IME, that WCL would pay his mileage, and that a settlement
conference would be scheduled with the court in lieu of mediation. A new Case Management
Order was promptly entered on September 28, 2017.

       Once the IME was rescheduled, Mager was asked to complete a five-page written
questionnaire prior to the appointment. That questionnaire—which is in the record—inquired
into Mager’s complaints, medical history, medications, prior evaluations, and how and where his
injury occurred. When Foley objected to the questionnaire as unnecessary in light of plaintiff’s
recent deposition, O’Donnell brought the matter before the magistrate judge by way of a
conference call. O’Donnell asked that Mager be required to either complete the questionnaire or
be interviewed by a doctor’s assistant. The magistrate judge “determined that background
information was necessary for the IME.” Accordingly, a Rule 35 Order was entered the next day
expressly directing Mager to “appear at the IME on October 20, 2017 at 10:00 a.m. C.S.T., for
an interview by a physician assistant and for Dr. Revord to conduct an IME. The interview and
exam shall not exceed three (3) hours.” (Emphasis added.) No other conditions were specified.
 No. 18-1421                         Mager v. Wisconsin Central Ltd.                                         Page 3


         Mager appeared for the IME as directed and was joined there by his attorney James
Foley, who not only remained present throughout the appointment but also surreptitiously made
an audio recording of the visit. Later, Foley conceded that he did so without prior notice to
defense counsel; stated that he regularly attended IMEs with other clients; and explained that he
had determined ahead of time that one-party-consent recording is legal in Wisconsin. As a result
of that recording, however, there can be no dispute that Mager himself repeatedly declined to
answer relevant questions about his condition, his medications, and how the injury occurred.

         An unofficial transcript of the recording1 reflects that although Mager provided some
identifying information to the receptionist upon arrival, he and Foley did not allow his driver’s
license to be copied. An assistant then escorted Mager and Foley to an exam room, where she
attempted to conduct an interview. Mager was asked what problems or concerns he wanted to
have addressed—one of the questions highlighted on the questionnaire—but Mager would not do
so and said he had already answered questions about his problems during his deposition. Foley
interjected that Mager was there to be evaluated at defendant’s request and not to have any
problems addressed. The assistant explained that the doctor still wanted some of the questions
answered, but Mager replied that he was sure that they had all of his medical records. Finally,
Mager declined to list the medications he was taking, again referring the assistant to the
deposition transcript that he had brought with him. That concluded the assistant’s attempt to
interview Mager.

         Forewarned, Dr. Revord introduced himself to Mager and Foley; confirmed that Mager
did not want to answer any questions; indicated that he had reviewed Mager’s records; and took
the copy of Mager’s deposition when it was offered. During that exchange, Foley also stated that
Mager was “not trying to be an obstructionist” but did not want to “rehash” his deposition
testimony. Dr. Revord explained that he was there to see Mager, listen to his story, and write a
report evaluating his condition and what had caused it. Dr. Revord tried to ask about how the
injury occurred and about Mager’s physical problems, but Mager referred him to the deposition

         1In   fairly contentious briefing, WCL’s counsel impugns the transcript because it was made by an
unidentified individual in Foley’s office. Despite having received a copy of the recording, however, WCL does not
suggest that the transcript is inaccurate in any way. Indeed, WCL relies on that very transcript as proof of deliberate
violation of the Rule 35 Order.
 No. 18-1421                   Mager v. Wisconsin Central Ltd.                              Page 4


for those answers. The full exchange was as follows:

       [Dr. Revord]: . . . Now I was a little confused. You’re talking in the summons of
       oil and slipping in the back of a truck but on your, when you filled out the injury
       report that day, you were saying you were walking to the front door of the truck
       and your legs gave way.
       [Peter Mager]: Everything is in the deposition there.
       DR: Got it.
       PM: We went over all the, all the stuff.
       DR: Got it.
       PM: I’m not trying to give you a hard time.
       DR: I understand.
       PM: All the information should be there.
       DR: I think you are smart to listen to your attorney. If your attorney, if my
       attorney told me to dye my hair red, I’d dye my hair red. You know, so if your
       attorney has told you not to …
       [FOLEY]: You’re assuming I told him that.
       DR: to answer specific questions.
       JTF: That might be his own, his own line of thinking.
       DR: He had told me, we had been told, eh, that . . . Well is it, let me ask you, is it
       your idea not to fill out the form?
       JTF: That’s not relevant doc.
       PM: I’m complying with the Order. They told me I had to come down here and
       be examined by you.
       DR: Very good. Ok I will go with the history in the chart and what you said
       when you filled out the initial report.
       (inaudible)
       Ok great. Do you want to tell me what problems you are having or would you
       rather I just look at your deposition?
       PM: It’s all in the deposition.

Mager then complied as Dr. Revord conducted a physical examination. Lastly, Dr. Revord asked
Mager what medications he was currently taking, but Mager declined to answer and responded
that it was all in his deposition and medical records. That concluded the IME.
 No. 18-1421                        Mager v. Wisconsin Central Ltd.                                      Page 5


        Dr. Revord prepared a six-page report the same day, which noted Mager’s refusals to
answer questions, relied on a review of Mager’s medical and other records, and concluded—in
short—that Mager presented with a “volitional” tremor, had no significant pathology in his
lumbar region, required no further treatment, and was asserting contradictory claims about how
the injury occurred. The report added that Mager’s deposition “did not contain the answers to
the questions [Dr. Revord] was asking him.” The deposition itself is not part of the district court
record.2

        Ten days later, WCL moved to dismiss the complaint pursuant to Rule 37(b)(2)(A)(v) of
the Federal Rules of Civil Procedure because Mager had violated the “spirit and letter” of the
Rule 35 Order. WCL also argued that it had been denied the opportunity to object to Foley’s
presence or to have the magistrate judge consider whether to allow Foley’s presence as a
condition of the IME. Plaintiff’s response to the motion was filed one day late—at 1:30 a.m. on
November 15—and revealed the audio recording. Defendant replied on November 21.

        A hearing was held on November 28, 2017, which also was the date set for the agreed
settlement conference. That conference was cancelled, however, because Foley had failed to
send a “confidential settlement letter” to the magistrate judge as directed by the Case
Management Order. Although the magistrate judge indicated his intention to impose monetary
sanctions on counsel for that failure, an order to that effect was not entered prior to the dismissal.

        Next, the magistrate judge asked Foley about his and his client’s conduct at the IME.
Foley insisted that Mager had complied by appearing to be interviewed; stated that he was
present at Mager’s request; and explained that both his presence and the recording were in
response to concerns that the IME might be used as a “de facto deposition.”                           O’Donnell
countered that the circumstances showed intentional defiance of the court’s order. On December
28, 2017, the magistrate judge issued a report and recommendation setting forth the facts,
addressing the relevant factors, and concluding that dismissal was warranted because of the
“flagrant and repeated misconduct exhibited by Plaintiff and his attorney.” Over plaintiff’s
objections, the district court adopted the R&R and dismissed the complaint with prejudice on

         2Dr. Revord’s report also commented that although Mager had refused to provide identification, “claimant
appears to be the same individual . . . [in] photographs provided to me.” Nothing in the record suggests otherwise.
 No. 18-1421                        Mager v. Wisconsin Central Ltd.                                      Page 6


March 9, 2018. Plaintiff appealed, and, notably, he is no longer represented by Foley.

                                                       II.

        The decision to dismiss a complaint for failure to comply with a discovery obligation or
other court order is reviewed for abuse of discretion. Nat’l Hockey League v. Metro. Hockey
Club, Inc., 427 U.S. 639, 642 (1976) (per curiam); see also Knoll v. Am. Tel. & Tel. Co., 176
F.3d 359, 363 (6th Cir. 1999); Harmon v. CSX Transp., Inc., 110 F.3d 364, 366 (6th Cir. 1997).

        Rule 37(b) specifically authorizes the imposition of sanctions for failure to comply with a
Rule 35 Order, or for failing to obey a scheduling or other pretrial order under Rule 16(f)(1)(C)
of the Federal Rules of Civil Procedure. Under Rule 37(b)(2)(A), “a district court may sanction
parties who fail to comply with its orders in a variety of ways, including dismissal of the
lawsuit.” Bass v. Jostens, Inc., 71 F.3d 237, 241 (6th Cir. 1995). Four factors are to be
considered in determining whether dismissal is an appropriate sanction for failure to comply with
a discovery obligation or other court order:

        (1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
        the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
        dismissed party was warned that failure to cooperate could lead to dismissal; and
        (4) whether less drastic sanctions were imposed or considered before dismissal
        was ordered.

United States v. Reyes, 307 F.3d 451, 458 (6th Cir. 2002) (quoting Knoll, 176 F.3d at 363).
“Although no one factor is dispositive, dismissal is proper if the record demonstrates delay or
contumacious conduct.” Id.; see also Harmon, 110 F.3d at 366-67. “Contumacious conduct
refers to behavior that is perverse in resisting authority and stubbornly disobedient.” Carpenter
v. City of Flint, 723 F.3d 700, 705 (6th Cir. 2013) (citation and internal quotation marks
omitted).3




        3When    Rule 37(b) applies, there is no need to rely on the court’s inherent powers or on Rule 41(b)’s
authorization to dismiss for failure “to prosecute or to comply with these rules or a court order.” Fed. R. Civ. P.
41(b); see also Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S.
197, 207 (1958).
 No. 18-1421                   Mager v. Wisconsin Central Ltd.                             Page 7


       A.      Willfulness, Bad Faith, or Fault

       To show that a party’s failure to comply was motivated by bad faith, willfulness, or fault,
the conduct “must display either an intent to thwart judicial proceedings or a reckless disregard
for the effect of [his] conduct on those proceedings.” Carpenter, 723 F.3d at 705 (alteration in
original) (quoting Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005)). This court has
expressed reluctance to uphold a dismissal “merely to discipline an errant attorney” to the
detriment of an innocent client. Knoll, 176 F.3d at 363 (citation omitted); see also Mulbah v.
Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir. 2001). Thus, notwithstanding the Supreme
Court’s declaration that dismissal of a plaintiff’s complaint based on his attorney’s unexcused
conduct would not impose an undue penalty on the client in Link v. Wabash R.R. Co., 370 U.S.
626, 633-34 (1962), this court has instructed that “[d]ismissal is usually inappropriate where the
neglect is solely the fault of the attorney,” Carpenter, 723 F.3d at 704 (alteration in original and
citation omitted).

       Here, although there were some failures that were attributable solely to counsel, the
magistrate judge expressly found that “Plaintiff and his attorney acted in bad faith and willfully
violated the [Rule 35] discovery order” that “required Plaintiff to submit to an interview.”
Because that finding is supported by the record, it was not an abuse of discretion to find this
factor weighs in favor of dismissal.

       Late or Missing Filings. The magistrate judge identified two instances of failure to
comply with a scheduling or pretrial order: (1) the tardy filing of the response to the motion to
dismiss; and (2) the failure to submit the confidential settlement letter to the magistrate judge.
Submission of a settlement letter was expressly required by court order. The failure to submit
the letter caused the cancellation of the settlement conference on the day it was scheduled to
occur, and the magistrate judge indicated his intention to impose sanctions at the time.

       Violation of Rule 35 Order. A court “may order a party whose mental or physical
condition . . . is in controversy to submit to a physical or mental examination by a suitably
licensed or certified examiner.” Fed. R. Civ. P. 35(a)(1). The order is to be “made only on a
motion for good cause,” and “must specify the time, place, manner, conditions, and scope of the
 No. 18-1421                    Mager v. Wisconsin Central Ltd.                            Page 8


examination, as well as the person or persons who will perform it.” Fed. R. Civ. P. 35(a)(2)(A),
(B). There is no dispute that Mager’s physical condition was in controversy. Both the extent
and cause of his injuries were contested and central to his claim, and counsel agreed that he
would submit to the examination on the condition that defendant pay his mileage. Plaintiff relies
on email correspondence to suggest that it was defense counsel who asked that the questionnaire
be completed. Be that as it may, what matters is that, as the magistrate judge found, the order
requiring Mager to submit to an interview “was the result of a telephone conference in which
Plaintiff’s counsel discussed his concerns with allowing an interview.”            In other words,
notwithstanding Foley’s objections and concerns, Mager was expressly ordered to submit to an
interview as part of the IME.

       Mager cannot credibly claim either that he was unaware of the obligation or that he
complied with it by sitting for the interview but declining to answer questions regarding his
condition, his current medications, or how his injury occurred. Foley represented that he and
Mager had discussed their concerns about the interview, and Foley denied that he told Mager
what to do. The fact is, Mager arrived for the IME with a copy of his deposition transcript and
his attorney in tow, and then proceeded to repeatedly deflect questions by stating that the
answers could be found in his deposition or prior medical records. Now that he is no longer
represented by Foley, plaintiff asserts that it “was unreasonable for the court to conclude that he
did anything other than follow the instructions of his attorney when he attended the IME.” But
Mager cannot escape the consequences of his own actions by laying blame on the advice of
counsel. The actions that Mager took with the support of Foley were deliberate and calculated to
circumvent the order requiring him to submit to an interview as part of the IME.

       Counsel’s Presence and Secret Recording. Although not a violation of the Rule 35
Order itself, the magistrate judge found that Foley’s unexpected attendance at and surreptitious
recording of the IME “show[ed] bad faith and a lack of respect for the integrity of the legal
profession.” Plaintiff’s new counsel concedes that Foley “should have discussed his desire to
attend and record the IME with opposing counsel and, if necessary, raised the issue with the
court prior to the IME.” Admitting that Foley’s conduct should not be condoned, plaintiff argues
that Mager had no way of knowing that it was improper. But Mager’s hands are not so clean.
 No. 18-1421                    Mager v. Wisconsin Central Ltd.                             Page 9


       Foley and Mager were concerned that the examiner was a defense-side expert who may
try to elicit information adverse to their case—i.e., the “de facto” deposition argument—and
“discussed the advantages of audio-taping the entire IME event.” (Pl’s Br., p. 17.) There is no
reason to doubt that Mager knew Foley was secretly recording the visit on a hidden cell phone,
which was deceitful even if not actually illegal in Wisconsin. That recording, in turn, shows that
Foley’s presence provided support to Mager and furthered the concerted and deliberate effort to
thwart the court-ordered interview and avoid questions they did not want to have to answer.
Plaintiff’s new counsel acknowledges that “[e]ven in state courts where attorneys often attend
and videotape an IME, it is most often done with notice to opposing counsel.” (Reply Br., p. 5.)
It should also go without saying, that, even then, the recording would be done in the open.

       Failure to Request Conditions. These actions were found to be particularly egregious
because plaintiff’s counsel knew or should have known that “federal courts generally do not
allow a third-party to be present during an IME or to have an IME recorded unless the party has
established a special need or good cause.” Plaintiff does not dispute that this is the general rule,
although this court has not had occasion to address the parameters of the trial court’s discretion
to grant or deny such a request. See, e.g., Elder v. Harrison Twp., No. 10-cv-13144, 2014 WL
6668696, at *3-5 (E.D. Mich. Nov. 24, 2014) (finding inherently adversarial nature was not
sufficient reason); Lahar v. Oakland Cty., No. 05-72920, 2006 WL 2269340, at *7-8 (E.D. Mich.
Aug. 8, 2006) (finding interest in assuring accuracy was insufficient reason); but see Gohl v.
Livonia Pub. Schs., No. 12-cv-15199, 2015 WL 1469749, at *2-5 (E.D. Mich. Mar. 30, 2015)
(allowing parental presence for exam of children with cognitive deficiencies but finding no good
cause for it to be recorded).

       Nor is there reason to think the state courts would condone what happened here. See,
e.g., Metro. Prop. & Cas. v. Overstreet, 103 S.W.3d 31, 39 (Ky. 2003) (Kentucky’s similar rule
allows third persons to attend where there is good cause, although an attorney’s presence is
“most likely to be problematic because of the potential to unfairly disrupt the examination”).
Indeed, even though Michigan law provides a statutory right to have counsel present during an
 No. 18-1421                          Mager v. Wisconsin Central Ltd.                                      Page 10


IME, that condition would be included in the order. See Mich. Ct. R. 2.311 (order “may provide
that the attorney for the person to be examined may be present at the examination”).4

         It was not an abuse of discretion to find that the concerted actions of plaintiff and his
attorney displayed an intent to thwart the judicial proceedings, or at least a reckless disregard for
the effect of that conduct on the proceedings. Nor is this a case in which the dismissal was
merely to discipline an attorney “to the detriment of an innocent client.” Knoll, 176 F.3d at 363.
This factor weighs in favor of dismissal.

         B.       Prejudice to the Adversary

         As noted earlier, plaintiff conceded that prejudice resulted from the cancellation of the
settlement conference on the day it was scheduled to occur. The magistrate judge also found that
WCL was prejudiced because Mager and Foley failed to comply with the order requiring him to
submit to an interview as part of the IME. Plaintiff argues that there was no prejudice because
the refusals did not prevent Dr. Revord from preparing his report and providing an opinion based
on a physical examination and review of the prior medical records. In fact, the report did not
identify the conditions that Mager claimed were disabling, describe the manner of the injury, or
list the medications he was taking at the time. Nor did Dr. Revord believe the deposition
answered the questions he was asking. Plaintiff counters that Dr. Revord did not insist on
answers, but Dr. Revord was not wrong in believing that it was not his place to do so. The
magistrate judge found that WCL was prevented “from receiving an expert report with all the
medical information that the physician was seeking.” Although the report was favorable to the
defense, it was arguably incomplete and potentially subject to impeachment. Plaintiff has not
shown it was clear error to conclude that the deliberate circumvention of the Rule 35 Order
prejudiced the ability of the defense to rely on the IME report.




         4Plaintiff’s  new counsel wisely abandoned reliance on Wright & Miller, which observes that “the norm in
federal court is that counsel will not be allowed to attend unless good cause is presented to justify that.” 8B Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2236 at 496 (3d ed. 2010). That same passage
also explains that concerns about overreaching or abusive behavior during an IME “can be minimized in other ways,
particularly by excluding from evidence any statements made by the party to the doctor relating to nonmedical
matters.” Id.
 No. 18-1421                    Mager v. Wisconsin Central Ltd.                          Page 11


       C.      Prior Warning

       The magistrate judge recognized that plaintiff was not expressly warned that failure to
comply with the Rule 35 Order could lead to dismissal, although WCL’s motion provided some
notice that dismissal was a possibility. See Reyes, 307 F.3d at 458. When “a plaintiff has not
been given notice that dismissal is contemplated, a district court should impose a penalty short of
dismissal unless the derelict party has engaged in bad faith or contumacious conduct.” Harmon,
110 F.3d at 367 (internal quotation marks omitted) (quoting Harris v. Callwood, 844 F.2d 1254,
1256 (6th Cir. 1988)). As is discussed at length above, the record supports the conclusion that
plaintiff and his attorney deliberately disobeyed the Rule 35 Order through the calculated
refusals to answer questions during the IME. As such, the lack of a prior warning would not
prevent dismissal of the complaint as a first sanction.

       D.      Alternative Sanctions

       The fourth factor asks whether less drastic sanctions were imposed or considered before
dismissal was ordered. They were. The magistrate judge explained that he “considered lesser
sanctions, such as imposing costs for the IME, striking Plaintiff’s own expert witnesses, and/or
striking Plaintiff’s claim for permanent disability” but found that “[n]one of these sanctions
would reflect the seriousness of the conduct in this case.” This consideration also supports the
decision to dismiss the complaint pursuant to Rule 37(b)(2)(A)(v).

       AFFIRMED.
 No. 18-1421                   Mager v. Wisconsin Central Ltd.                           Page 12


                                      _________________

                                       CONCURRENCE
                                      _________________

       SUTTON, Circuit Judge, concurring. I join Judge Guy’s well-reasoned opinion in full.
I write separately to emphasize the propriety of holding parties accountable for their lawyers’
actions.

       Our system of representative litigation makes the parties principals, the lawyers agents.
See Restatement (Third) of Agency § 1.01 reporter’s note c (Am. Law Inst. 2006); Restatement
(Third) of the Law Governing Lawyers § 26 cmt. b (Am. Law Inst. 2000); William A. Gregory,
The Law of Agency and Partnership § 21 (3d ed. 2001). Under tried and true agency principles,
parties become bound by the actions of lawyers taken with actual or apparent authority.
Restatement (Third) of Agency §§ 2.01–.03; Restatement (Third) of the Law Governing Lawyers
§§ 26–27. That understanding has deep roots, centuries-deep roots, in the common law. The
thirteenth-century jurist Henry de Bracton wrote that “the attorney represents the person of his
lord in almost all matters.” 4 Bracton, On the Laws and Customs of England 85 (George E.
Woodbine ed., Samuel E. Thorne trans., 1977). By Justice Oliver Wendell Holmes’ time, the
idea had become cliché, the well-worn adage being that the “act of the attorney is the act of his
client.” Oliver Wendell Holmes, Jr., Agency, 5 Harv. L. Rev. 1, 7–8 (1891) (quotation omitted).

       This representative ideal pervades every aspect of our modern legal system. We stylize
our cases as contests of “Plaintiff v. Defendant” even though the combatants who appear behind
the lectern are lawyers, not parties. We write that “plaintiff argues so-and-so,” full well knowing
that the client often hasn’t the foggiest about the obscure arguments his lawyer just submitted on
his behalf. The concept even suffuses our vocabulary. The word attorney means one who is
attorned—in other words, a person appointed to act for another. 1 Oxford English Dictionary
772 (2d ed. 1989). Trying to pry apart a lawyer’s representational actions from those of his
client is like trying to separate Mark Twain from Samuel Clemens.

       One implication of this foundational principle is that parties must be held accountable for
their attorneys’ misconduct. That’s why there is “certainly no merit to the contention that
 No. 18-1421                    Mager v. Wisconsin Central Ltd.                             Page 13


dismissal of petitioner’s claim because of his counsel’s unexcused conduct imposes an unjust
penalty on the client. Petitioner voluntarily chose this attorney as his representative in the action,
and he cannot now avoid the consequences of the acts or omissions of this freely selected agent.”
Link v. Wabash R.R. Co., 370 U.S. 626, 633–34 (1962). “Any other notion,” the Court added,
“would be wholly inconsistent with our system of representative litigation, in which each party is
deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice
of which can be charged upon the attorney.” Id. at 634 (quotation omitted). In the past fifty
years, the Court has hammered the point over and over. See Maples v. Thomas, 565 U.S. 266,
280–81 (2012); Pioneer Inv. Servs. Co. v. Brunswick Assocs., 507 U.S. 380, 396–37 (1993);
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 92–93 (1990); United States v. Boyle, 469 U.S.
241, 249–50 (1985).

       Even so, our circuit remains queasy about Link’s iron-clad logic in sanction cases like
this one. Reasoning that dismissal with prejudice unfairly punishes a plaintiff for his lawyer’s
misdeeds, we have “expressed an extreme reluctance to uphold the dismissal of a case merely to
discipline a party’s attorney.” Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 590 (6th Cir.
2001); see also Patterson v. Grand Blanc Twp., 760 F.2d 686, 688 (6th Cir. 1985) (per curiam).
So it is that “[d]ismissal is usually inappropriate where the neglect is solely the fault of the
attorney.” Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013) (quotation omitted).

       This sentiment is unfair to the defendant, is inconsistent with other areas of the law, and
may do more harm than good for the party it tries to help: the plaintiff. Why should a defendant
be made to endure abuses by a plaintiff’s lawyer just because the plaintiff was unaware? That is
not the way we usually think about it. See Link, 370 U.S. at 634 n.10. Our anxiety about
harming blameless plaintiffs also breaks sharply from our usual practices. When a plaintiff loses
his case because his lawyer filed the complaint outside the statute of limitations, we rarely pause
to ask whether the client was responsible for the delay. See, e.g., Rocheleau v. Elder Living
Constr., LLC, 814 F.3d 398, 400–01 (6th Cir. 2016). In that situation, we treat the lawyer’s
actions as those of his client, no matter how steep the cost.

       The law already marks a deeply grooved path for addressing the grievances of clients
bilked out of good claims by bad lawyers. It’s called a malpractice lawsuit. See Link, 370 U.S.
 No. 18-1421                   Mager v. Wisconsin Central Ltd.                         Page 14


at 634 n.10; Inman v. Am. Home Furniture Placement, Inc., 120 F.3d 117, 119 (8th Cir. 1997).
A dismissal with prejudice predicated on lawyer misconduct would provide powerful
ammunition for a client in a malpractice proceeding. See Restatement (Third) of the Law
Governing Lawyers § 53 cmt. b. By departing from our traditional rules of agency to protect
plaintiffs, we may do just the opposite. If we make party misconduct a near precondition in
every dismissal, we unduly complicate the inevitable malpractice action by giving the lawyer a
ready defense: My client behaved just as badly as I did. See Carpenter, 723 F.3d at 704.

       Left to my own devices, I would take a different tack. While a party’s conduct may enter
the equation in determining whether to dismiss the case with prejudice as a sanction, we should
not make it a near precondition for doing so.
