                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-1957
                        ___________________________

                                     Henry Akins

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

Southern Glazer's Wine and Spirits of Arkansas LLC, Originally named as Glazers
                           Distributors of Arkansas

                       lllllllllllllllllllllDefendant - Appellee
                                      ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: August 14, 2019
                              Filed: August 29, 2019
                                  [Unpublished]
                                  ____________

Before BENTON, SHEPHERD, and KELLY, Circuit Judges.
                          ____________

PER CURIAM.

      Henry Akins appeals after the district court dismissed with prejudice his
employment discrimination complaint as a sanction for not obeying a discovery order
under Federal Rule of Civil Procedure 37(b)(2)(A). Having jurisdiction under 28
U.S.C. § 1291, this court reverses and remands.
       Akins filed a pro se employment discrimination complaint against his former
employer, Southern Glazer’s Wine and Spirits of Arkansas LLC. Throughout the
proceedings, there were several discovery disputes, including Akins’s (alleged)
failure to appear for a scheduled deposition. Opposing counsel told Akins,
incorrectly, that depositions could only be conducted between 9 a.m. and 5 p.m.
Akins requested that his deposition be scheduled over two days between 2 and 5 p.m.
to accommodate his work schedule. The district court ordered him to appear for his
deposition over two days, warning that if he failed to appear, the case would be
dismissed. Southern’s notice of deposition stated that the deposition would begin at
2 p.m. each day, but did not state an ending time. On the first day, the deposition
adjourned prior to 5 p.m. On the second day, Akins left the deposition at 5 p.m. to
go to work, despite opposing counsel’s statement that she had an additional 15
minutes of questioning. The district court ruled that although Akins attended the
deposition, he refused to complete it, and concluded that dismissal under Rule
37(b)(2)(A) was the only appropriate sanction.

       Rule 37 authorizes dismissal as a sanction if there is (1) an order compelling
discovery, (2) willful violation of that order, and (3) prejudice. Before dismissing a
case as a discovery sanction, the court must investigate whether less extreme
sanctions would suffice, unless the failure was deliberate or in bad faith. Fed. R. Civ.
P. 37. Dismissals are reviewed for an abuse of discretion. Comstock v. UPS Ground
Freight, Inc., 775 F.3d 990, 992 (8th Cir. 2014). Factual findings of willful or
intentional failure to comply with a court order are reviewed for clear error. Smith
v. Gold Dust Casino, 526 F.3d 402, 404 (8th Cir. 2008).

       Akins did not violate the “fails to appear” discovery order, nor did he act in bad
faith. He appeared for his deposition both days at the ordered time, and was deposed
for nearly six hours over the two days. Both the discovery order and notice of
deposition were silent about when the deposition would end. Akins had reason to
believe the deposition would end at 5:00 because Southern’s counsel erroneously told

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him depositions must occur between 9 a.m. and 5 p.m., and he requested that his
deposition be scheduled between 2 and 5 p.m. each day. Southern did not identify the
additional questions counsel would ask if the deposition continued past 5 p.m. so
Southern did not demonstrate prejudice. This court concludes that the dismissal of
Akins’s complaint was an abuse of discretion because his conduct did not violate the
district court’s discovery order, and the court erred when it failed to consider
sanctions less severe than dismissal with prejudice.

       The dismissal of Akins’s complaint is reversed, and the case remanded for
further proceedings.
                      ______________________________




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