                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 12-2852
                         ___________________________

                                   James Bergstrom

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

   Sgt. Michelle Frascone, in her individual capacity; Sgt. Vicki Braman, in her
    individual capacity; Vanessa Rew, an individual; Sgt. Stacey Webb, in her
individual capacity; Commander Kris Mienert, in her individual capacity; Sgt. Sue
   McMahon, in her individual capacity; Det. Chris Donohoe, in his individual
              capacity; Det. Chris Ployart, in his individual capacity

                      lllllllllllllllllllll Defendants - Appellees
                                       ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                              Submitted: June 12, 2013
                                Filed: March 6, 2014
                                   ____________

Before LOKEN, BRIGHT, and BYE, Circuit Judges.
                           ____________

BYE, Circuit Judge.

       James Bergstrom filed suit claiming malicious prosecution and violations of
his civil rights. After numerous delays drawing out the discovery period for eighteen
months, Bergstrom’s attorney failed to comply with a court ordered deadline to
submit answers to written discovery requests. The district court dismissed
Bergstrom’s suit with prejudice for failure to prosecute and failures to comply with
a court order and the Federal Rules of Civil Procedure. We vacate the order of
dismissal and remand the matter to the district court.

                                          I

      In relation to events occurring on April 23, 2010, officers of the Woodbury,
Minnesota, Police Department charged Bergstrom with violating an Order for
Protection which had prohibited him from having contact with his ex-wife, Vanessa
Rew. The charges were later dismissed.

      Represented by attorney Jill Clark, Bergstrom filed suit in state court against
Rew, Sergeant Michelle Frascone, Sergeant Vicki Braman, Sergeant Sue McMahon,
Sergeant Stacey Webb, Detective Chris Donohoe, Detective Chris Ployart, and
Commander Kris Mienert (collectively “the Defendants”). The case was removed to
federal court and an initial scheduling order issued on November 17, 2010.

       Although the initial scheduling order set the deadline for discovery for
November 2011, a series of delays attributable almost exclusively to Clark drew out
the discovery period until the middle of 2012. Those delays can be grouped into two
main categories. Prior to September 1, 2011, except for one request from Bergstrom
to reschedule his deposition, the delays were the product of conflicts with Clark’s
schedule. On three occasions, Clark asked the Defendants to accommodate those
conflicts by rescheduling the depositions of the parties. The Defendants did so. As
a result, by the beginning of September 2011, the depositions of only three of the
Defendants had been taken. The depositions of three of the remaining Defendants
were rescheduled for mid-September 2011, and the Defendants had proposed
rescheduling Bergstrom’s deposition for a date approximately a week thereafter.

                                         -2-
       Beginning in early September 2011, however, Clark began to repeatedly take
unpredictable periods of medical leave due to health issues. As a result of the first
such leave, Clark unilaterally cancelled the scheduled depositions and did not respond
to the proposal to reschedule Bergstrom’s deposition. As her health issues
progressed, Clark occasionally returned to work on a limited basis, but was often
again put on medical leave with little or no notice to the Defendants. The
unpredictable nature of Clark’s unavailability frustrated the Defendants’ attempts to
reschedule the cancelled depositions. Clark also failed to submit Bergstrom’s
answers to the Defendants’ discovery requests, which they had first served in June
2011. Pursuant to party stipulations, the district court twice amended the scheduling
order during this period to extend the deadlines for discovery.

       On March 18, 2012, Clark notified the Defendants she had returned to work on
a sustained basis. The Defendants responded by offering to stipulate to a third
extension of the discovery deadlines. When Clark failed to respond, the Defendants
moved to dismiss for failure to prosecute and failure to comply with an earlier court
order.

       On May 1, 2012, the district court denied the motion without prejudice. The
district court ordered the parties to participate in a scheduling conference to
determine whether Clark could continue prosecuting the case and, if necessary, to
amend the scheduling order. The district court’s order also instructed Clark, in the
event she could not continue to represent Bergstrom, she would have sixty days from
the entry of the order to dismiss the case or withdraw, either in favor of new counsel
or Bergstrom proceeding pro se. In the order, the district court expressly warned any
failure on Clark’s part to obey the court’s orders or the Federal Rules of Civil
Procedure would result in dismissal.

       Based on Clark’s representations that she was capable of representing
Bergstrom and could meet all deadlines, a final amended scheduling order issued.

                                         -3-
The order established a number of discovery deadlines, including a June 15, 2012,
deadline to submit answers to the Defendants’ written discovery requests.

       When Clark failed to submit Bergstrom’s answers by the deadline, the
Defendants again moved to dismiss. On June 22, 2012, the district court issued an
Order to Show Cause. Noting Clark had done significant work on other cases in the
days leading up to the missed deadline, the district court directed Bergstrom to file
a memorandum explaining why the case should not be dismissed. On the date the
memorandum was due, an attorney representing Clark in an unrelated matter
submitted a written letter on Clark’s behalf. The letter indicated Clark had suffered
a severe relapse of her health issues in the days leading up to the June 15 deadline and
had later been hospitalized. Clark’s attorney further asked the district court for a
thirty-day continuance to allow Bergstrom to find substitute counsel. The district
court dismissed the case with prejudice for failure to prosecute, failure to follow the
Federal Rules of Civil Procedure, and failure to comply with the final amended
scheduling order. Bergstrom appeals.

                                           II

      On appeal, Bergstrom contends the district court abused its discretion by
imposing an excessive sanction. The Defendants contend dismissal with prejudice
was appropriate under either Rule 41(b) or Rule 37(b)(2) of the Federal Rules of Civil
Procedure.

                                           A

       We review an involuntary dismissal with prejudice pursuant to Rule 41(b) for
abuse of discretion. Arnold v. ADT Sec. Servs., Inc., 627 F.3d 716, 722 (8th Cir.
2010) (citing Hunt v. City of Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000)). A
district court may dismiss a cause of action with prejudice “for failure of a plaintiff

                                          -4-
to prosecute or comply with [the Federal Rules] or any court order.” Fed. R. Civ. P.
41(b). “The power to dismiss under Fed. R. Civ. P. 41(b) is not unlimited, however.”
M. S. v. Wermers, 557 F.2d 170, 175 (8th Cir. 1977). “[T]he sanction imposed by the
district court must be proportionate to the litigant’s transgression.” Rodgers v.
Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th Cir. 1998) (citations omitted).
“Dismissals with prejudice are drastic and extremely harsh sanction[s].” Sterling v.
United States, 985 F.2d 411, 412 (8th Cir. 1993) (alteration in original) (internal
quotation marks and citation omitted). Accordingly, we have found such dismissals
proper “only when there has been a clear record of delay or contumacious conduct by
the plaintiff[.]” DiMercurio v. Malcom, 716 F.3d 1138, 1140 (8th Cir. 2013) (internal
quotation marks and citations omitted). “And we have admonished . . . this ultimate
sanction should only be used when lesser sanctions prove futile.” Id. (internal
quotation marks and citation omitted).

      On review, “this court employs a balancing test that focuses foremost upon the
degree of egregious conduct which prompted the order of dismissal and to a lesser
extent upon the adverse impact of such conduct upon both the defendant and the
administration of justice in the district court.” Rodgers, 135 F.3d at 1219 (internal
quotation marks and citation omitted).

      This is a close case. No one disputes Clark’s delays and failure to comply with
the ordered deadlines merited some form of sanction.1 In addition, there is some

      1
       We find significant, however, that the conduct is attributable almost
exclusively to Clark. A litigant may be held liable for the dilatory actions of his
attorney. See e.g., Link v. Wabash R.R., 370 U.S. 626, 633-34 (1962). Our case law,
however, suggests dilatory conduct may be considered less worthy of dismissal with
prejudice when attributable solely to a litigant’s attorney. See Mann v. Lewis, 108
F.3d 145, 147-48 (8th Cir. 1997) (reversing dismissal with prejudice where dilatory
conduct solely attributable to counsel); see also Haley v. Kansas City Star, 761 F.2d
489, 491 (8th Cir. 1985) (“Dismissal of the actions is inappropriate in this case where
the noncompliance was solely the fault of the attorney.”); but see Siems v. City of

                                         -5-
merit to the Defendants’ contention they were prejudiced by Clark’s delays. See
Avionic Co. v. Gen. Dynamics Corp., 957 F.2d 555, 559 (8th Cir. 1992) (holding
prejudice in the discovery context exists where adversary’s failure to make discovery
impairs litigant’s ability to assess factual merits of a claim). Further, as the district
court expressly warned a failure to abide by the deadlines would result in dismissal,
a decision not to dismiss could have adversely impacted the district court’s ability to
manage the parties and other litigants. See Nat’l Hockey League v. Metro. Hockey
Club, Inc., 427 U.S. 639, 643 (1976) (noting purpose of imposing sanctions is to deter
future offensive conduct by the responsible individual and others). As such, the
record here weighs at least somewhat in favor of dismissal being an appropriate
sanction.

       However, “[e]ven where the facts might support dismissal with prejudice, this
‘ultimate sanction . . . should only be used when lesser sanctions prove futile.’” Hunt,
203 F.3d at 527 (alteration in original) (quoting Rodgers, 135 F.3d at 1222). Nothing
in the record indicates the district court even considered the viability of lesser
sanctions as to the circumstances which existed at the time it entered the dismissal.
At the time the district court dismissed the case, Clark had been effectively removed
as Bergstrom was looking for new counsel.2 As every failure to comply with court
orders and all but one delay in this case can be traced to Clark, there is no indication
imposing a lesser sanction on Bergstrom would have been futile. Accordingly,
although we are mindful the district court must have available to it the full range of
sanctions, in these circumstances it was an abuse of discretion to impose the “ultimate




Minneapolis, 560 F.3d 824, 827 (8th Cir. 2009) (holding dismissal with prejudice
warranted where attorney violated nearly every court order and lesser sanctions would
have been futile).
      2
       We note this search for new counsel was taking place within the sixty-day
period instructed by the district court’s May 1, 2012, order.
                                          -6-
sanction” of dismissal with prejudice without first considering the viability of lesser
sanctions.

                                           B

       The Defendants contend dismissal with prejudice would nonetheless have been
appropriate as a sanction under Rule 37(b)(2), which authorizes sanctions for failure
to comply with discovery orders. Although we typically review the imposition of
discovery sanctions for abuse of discretion, such discretion “narrows as the severity
of the sanction or remedy [the district court] elects increases.” Sentis Grp., Inc. v.
Shell Oil Co., 559 F.3d 888, 898 (8th Cir. 2009) (quoting Wegener v. Johnson, 527
F.3d 687, 692 (8th Cir. 2008)). “The sanction of dismissal is among the harshest of
sanctions, and ‘[t]here is a strong policy favoring a trial on the merits and against
depriving a party of his day in court.’” Id. at 899 (alteration in original) (quoting Fox
v. Studebaker-Worthington, Inc., 516 F.2d 989, 995-96 (8th Cir. 1975)).
“Accordingly . . . we more closely scrutinize dismissal imposed as a discovery
sanction because ‘the opportunity to be heard is a litigant’s most precious right and
should sparingly be denied.’” Id. (quoting Schoffstall v. Henderson, 223 F.3d 818,
823 (8th Cir. 2000)).

       Dismissal as a discovery sanction is available only if there is “(1) an order
compelling discovery, (2) a willful violation of the order, and (3) prejudice to the
other party.” Schoffstall, 223 F.3d at 823. In addition, “[i]n this circuit, before
dismissing a case under Rule 37(b)(2) the court must investigate whether a sanction
less extreme than dismissal would suffice, unless the party’s failure was deliberate or
in bad faith.” Avionic, 957 F.2d at 558 (citing Denton v. Mr. Swiss of Mo., Inc., 564
F.2d 236, 240-41 (8th Cir. 1977)); see also Shelton v. Am. Motors Corp., 805 F.2d
1323, 1330 (8th Cir. 1986) (requiring both willfulness and bad faith).




                                          -7-
       As we have already noted, there is no indication the district court considered
the viability of lesser sanctions here. There also is no finding in the record of bad
faith which would have excused the district court from considering lesser sanctions.
Thus, the district court also would have abused its discretion had it dismissed
Bergstrom’s suit with prejudice as a discovery sanction without first considering the
propriety of lesser sanctions.

                                         III

      Based on the foregoing, we vacate the order dismissing Bergstrom’s claim with
prejudice and remand this matter back to the district court for further proceedings.

LOKEN, Circuit Judge, dissenting.

        I respectfully dissent. In my view, the procedures described in detail in the
district court’s Order dated May 1, 2012; Order To Show Cause dated June 22, 2012;
and Order dismissing the action with prejudice dated July 6, 2012, constituted the
same “persistent pattern of delay” by Bergstrom’s attorney that persuaded us to affirm
orders dismissing with prejudice in Arnold v. ADT Security Services, Inc., 627 F.3d
716, 722 (8th Cir. 2010), and in Siems v. City of Minneapolis, 560 F.3d 824, 826-27
(8th Cir. 2009). Moreover, the court understates plaintiff Bergstrom’s personal
participation in and responsibility for the extended dilatory conduct -- the record on
appeal includes emails from his attorney to defendants’ attorney stating that
Bergstrom could not appear for a duly noticed deposition on September 1, 2011, or
for a rescheduled deposition proposed by defendants on November 15, 16, 17, or 18,
for various personal reasons.

      As the court acknowledges that “Clark’s delays and failure to comply with the
ordered deadlines merited some form of sanction,” op. at 5, I interpret our decision



                                         -8-
as leaving the district court free on remand to impose a monetary sanction that will
compensate defendants for the costly and prejudicial delays they have endured.
                         ______________________________




                                        -9-
