                               RECOMMENDED FOR FULL-TEXT PUBLICATION
                                    Pursuant to Sixth Circuit Rule 206
                                            File Name: 08a0227p.06

                       UNITED STATES COURT OF APPEALS
                                       FOR THE SIXTH CIRCUIT
                                         _________________


                                                     X
                             Plaintiffs-Appellants, -
 MARK SCHAFER et al.,
                                                      -
                                                      -
                                                      -
                                                           No. 07-3933
  v.
                                                      ,
                                                       >
 CITY OF DEFIANCE POLICE DEPARTMENT et al.            -
                            Defendants-Appellees. -
                                                      -
                                                      -
                                                     N
                       Appeal from the United States District Court
                       for the Northern District of Ohio at Toledo.
                   No. 06-07084—James G. Carr, Chief District Judge.
                                         Submitted : June 5, 2008
                                   Decided and Filed: June 26, 2008
               Before: GILMAN and COOK, Circuit Judges; COHN, District Judge.*
                                            _________________
                                                 COUNSEL
ON BRIEF: George R. Royer, Toledo, Ohio, for Appellants. Stephen Dennis Long, BARAN,
PIPER, TARKOWSKY, FITZGERALD & THEIS CO., Toledo, Ohio, for Appellees.
                                            _________________
                                                OPINION
                                            _________________
        RONALD LEE GILMAN, Circuit Judge. In March of 2006, plaintiffs Mark Schafer and his
two minor children filed a complaint against the City of Defiance Police Department (DPD), DPD
officer John Williamson, unidentified DPD officers, and the Defiance County Department of Job
and Family Services (DJFS) (collectively referred to as the defendants), alleging various civil rights
violations, as well as unspecified violations of federal and state law. The district court eventually
dismissed the plaintiffs’ claims for failure to prosecute, and the plaintiffs now appeal. For the
reasons set forth below, we AFFIRM the judgment of the district court.




        *
          The Honorable Avern Cohn, United States District Judge for the Eastern District of Michigan, sitting by
designation.


                                                       1
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                                        I. BACKGROUND
        Mark Schafer was arrested in March of 2004 and charged with various sexual offenses
involving his daughter, who was less than 13 years of age. The complaint alleges that DPD officers
questioned the children in connection with the arrest without the consent of their parents and
“without proper cause or procedure and in violation of their constitutional rights.” It further claims
that DPD officers caused the children to make incriminating statements by threatening to remove
them from their parents’ custody. Finally, the complaint asserts that the defendants falsely accused
Schafer of engaging in criminal conduct and of being an unfit father on the basis of the information
that was allegedly obtained from the children by improper means. On the other hand, Schafer pled
guilty to charges of gross sexual imposition involving his daughter, although he continues to deny
the charges. The district court eventually bifurcated the jointly filed complaint for the reasons set
forth below.
A.     Procedural history of Schafer’s complaint
         Schafer and the children—the latter proceeding by and through their mother and natural
guardian, Andrea Schafer—filed suit as coplaintiffs. (Because Andrea Schafer is effectively
litigating the case on the children’s behalf, all references to “Andrea” throughout this opinion denote
both her and the children collectively, unless otherwise required by the context.) At a scheduling
conference in October of 2006, defense counsel expressed concern to the district court that Schafer
and his children, one of whom was the victim of the offense for which Schafer was convicted, were
all being represented by the same attorney, George Royer. Defense counsel argued that this created
a conflict of interest under Rule 1.7 of the Ohio Rules of Professional Conduct, which addresses
conflicts of interest among clients of an attorney. Royer, they asserted, “was in the untenable ethical
position” of representing both Schafer, a convicted felon, and his daughter, the victim of his crime,
“in an action in which the focus of judicial inquiry was to be the truthfulness of the victim’s
allegations” against Schafer.
       According to the defendants, the district court agreed, stating that such joint representation
was “ill-advised,” and asking Royer whether he wished to proceed as counsel for Schafer or as
counsel for Andrea. Royer allegedly responded that he “would heed the District Court’s advice”
regarding his representation of parties with conflicting interests and would proceed as counsel for
Andrea only. The plaintiffs do not dispute the foregoing facts.
        On October 6, 2006, the district court issued an order providing in pertinent part as follows:
“Claims of plaintiff Mark Schafer dismissed on motion of defendants, without prejudice to refile
within six months of the date of this Order.” Schafer was therefore permitted to refile his complaint
on or before April 2, 2007. The October 6 order effectively bifurcated the initial complaint into two
separate actions: an action by Schafer, which was dismissed without prejudice, and an action by
Andrea, which proceeded to discovery as explained below in Part I.B.
        On June 7, 2007, more than two months after the refiling deadline had passed, Royer—who
was still representing Andrea—requested that the district court extend Schafer’s refiling deadline
to October 31, 2007, citing communication problems with Schafer due to the latter’s incarceration.
The court denied the motion on June 13, 2007 and dismissed with prejudice Schafer’s complaint for
want of prosecution, explaining that “[a] prisoner who files a civil suit, and counsel who undertakes
to represent such prisoner, are not entitled to unlimited postponements due to the problems inherent
in being confined following a conviction.”
       Schafer, still represented by Royer, now appeals the dismissal of his complaint. His brief
argues that the district court erroneously dismissed the complaint with prejudice for failing to
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(1) satisfy the pleading requirements set forth in the Federal Rules of Civil Procedure, and (2) state
a claim for relief under Rule 12(b)(6) thereof.
B.      Procedural history of Andrea’s complaint
        Although Schafer’s complaint was dismissed without prejudice in October of 2006, Andrea’s
complaint was not. The district court issued an order in November of 2006 calling for the deposition
of the remaining plaintiffs (i.e., Andrea Schafer and the children) to be completed on or before
December 30, 2006. According to the order, their suit would be dismissed with prejudice for lack
of prosecution if the depositions did not occur by that date. The defendants contend, and Andrea
does not dispute, that defense counsel repeatedly attempted to contact Royer to schedule Andrea’s
deposition until finally, on December 21, 2006, Royer agreed to hold the deposition on December
28, provided that it last for only one hour. Royer said that he had to attend a continuing legal
education (CLE) seminar on December 28 in order to complete, by December 31, his 2006 and 2007
CLE requirements, and that he planned to attend the deposition during his one-hour lunch break.
Accordingly, Andrea’s deposition was scheduled to take place on that date at noon in the office of
DJFS’s counsel in Toledo, Ohio.
       Royer agreed to that date and time despite the fact that he had lost contact with Andrea.
According to the defendants’ motion to dismiss, Royer indicated to defense counsel that he no
longer had a good address or telephone number for his clients, and that two attempts to contact
Andrea by mail regarding the deposition were returned to him marked “unable to deliver” and “no
forwarding address.” Nevertheless, Royer said that he sent Andrea a letter notifying her that the
deposition would begin at 1:00 p.m. on December 28, 2006. He later realized that he had indicated
the wrong starting time, but eventually he was successful in reaching her by phone and confirmed
with her that the deposition would begin at noon. Andrea, however, did not appear for the
deposition until 1:20 p.m., after both Royer and DPD’s attorney had left.
         Shortly thereafter, the defendants moved to dismiss Andrea’s complaint for want of
prosecution. Royer opposed the motion and requested that the deposition be rescheduled, explaining
that the letter that he had sent to Andrea notifying her of the deposition had specified the wrong start
time (although he later confirmed the correct time with her) and that Andrea had gotten lost on her
way to the deposition. According to the defendants, however, Andrea did not call Royer to alert him
that she would be late or that she was having difficulty in finding where the deposition was to be
taken. Royer also noted that the deposition had been scheduled at an inconvenient time for him
personally because he was moving offices and because of his CLE seminar.
        Ruling on the defendants’ motion in an order dated March 6, 2007, the district court observed
that the “Plaintiffs’ attention to the obligation to prosecute this action . . . can best be described as
nearly imperceptible. For a period of time, [Andrea] failed to keep her counsel informed about her
whereabouts.” The court nevertheless gave “plaintiffs one last chance to get on board” with their
case. It ordered Andrea and, if requested by defense counsel, the children themselves, to appear for
depositions on or before April 16, 2007. Their failure to appear, the court warned, would result in
the dismissal of their complaint with prejudice.
       In addition, Andrea was ordered to reimburse the defendants for the expenses that defense
counsel had incurred in connection with the scheduled December 28, 2006 deposition. The court
ordered defense counsel to provide Royer with a statement of their fees and costs by March 15,
2007, instructed Royer to confirm by April 1, 2007 that Andrea would pay the amount submitted,
and directed Andrea to pay the amount in full no later than June 1, 2007.
      On April 2, 2007, Royer asked for an extension until April 20 to fulfill the requirements of
the March 6 order, explaining that his work had been disrupted because he had been moving his
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office for the previous two months. The district court granted the request “as a final extension” in
an order dated April 9, 2007. It also noted that Royer had once again failed to electronically file the
motion, in violation of prior court orders. The court issued four orders during the course of the
proceedings below directing Royer to file electronically as required by the court’s local rules and
seven notices regarding his failure to do so.
         On May 9, 2007, the defendants renewed their motion to dismiss Andrea’s complaint for
want of prosecution on the ground that she had not complied with the court’s November 17, 2006,
March 6, 2007, or April 9, 2007 orders. They specifically noted that Andrea had failed to attend the
December 28, 2006 deposition or appear for a deposition by the April 20, 2007 deadline, and had
not timely accepted or rejected the defendants’ statement of costs relating to the scheduled
December 28, 2006 deposition. The defendants further argued that the ongoing litigation was
burdensome because it had a detrimental effect on the City of Defiance’s creditworthiness and
ability to finance various capital projects. They also explained that Williamson, the one DPD officer
specifically named as a codefendant, had encountered problems in closing on a home mortgage
because of his involvement in the lawsuit. Royer filed a brief response in opposition, arguing that
the defendants had requested attorney fees that were not related to the December deposition, that
Andrea had not received a bill from the defendants, and that dismissal of the complaint would be
“an extreme remedy” where Andrea had “only” been late to the deposition.
        On June 13, 2007, the district court granted the defendants’ motion to dismiss with prejudice
Andrea’s complaint for want of prosecution, citing the reasons set forth in the defendants’ motion.
It explained that Andrea had failed to comply with the court’s orders and repeatedly requested
deadline extensions when she did not comply, and that “the pendency of the litigation has had, and
will continue to have an adverse impact on [the defendants’] credit-worthiness.”
         The district court went on to note that, even assuming that the defendants had not provided
a statement of their December 28, 2006 deposition expenses, Royer had been “dilatory in not
contacting defendants’ attorney and asking for such a statement. That much, at least, was required
to show a good faith effort to comply with my orders.” Finally, the court stated that “[t]his case has
languished without action, progress, or compliance with orders issued by the undersigned.” Andrea,
still represented by Royer, timely appealed the dismissal of the complaint, raising the same
arguments that she had asserted in opposing the defendants’ final motion to dismiss.
                                          II. ANALYSIS
A.     Standard of review
        “We apply the abuse-of-discretion standard when reviewing a district court’s decision to
dismiss a lawsuit for failure to prosecute.” Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005). “An abuse of discretion exists when the reviewing court is firmly convinced that a mistake
has been made.” Stough v. Mayville Community Sch., 138 F.3d 612, 614 (6th Cir. 1998). “A district
court abuses its discretion when it relies on clearly erroneous findings of fact, when it improperly
applies the law, or uses an erroneous legal standard.” Id.
B.     Dismissal for failure to prosecute
        Rule 41(b) of the Federal Rules of Civil Procedure confers on district courts the authority
to dismiss an action for failure of a plaintiff to prosecute the claim or to comply with the Rules or
any order of the court. Knoll v. AT&T, 176 F.3d 359, 362-63 (6th Cir. 1999). “This measure is
available to the district court as a tool to effect management of its docket and avoidance of
unnecessary burdens on the tax-supported courts and opposing parties.” Id. at 363 (brackets and
internal quotation marks omitted). A district court therefore “must be given substantial discretion
in serving these tasks.” Id.
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          Nevertheless, “[t]he dismissal of a claim for failure to prosecute is a harsh sanction which
the court should order only in extreme situations showing a clear record of contumacious conduct
by the plaintiff.” Wu, 420 F.3d at 643 (internal quotation marks omitted); see also Little v. Yuetter,
984 F.2d 160, 162 (6th Cir. 1993) (identifying the “competing concerns” that guide a court’s
decision to dismiss an action for failure to prosecute as follows: “the court’s need to manage its
docket, the public’s interest in expeditious resolution of litigation, and the risk of prejudice to a
defendant because the plaintiff has failed to actively pursue its claims,” and, “[o]n the other hand[,]
. . . the policy which favors disposition of cases on their merits”). “Contumacious” is defined as
“perverse in resisting authority” and “stubbornly disobedient.” Webster’s Third New International
Dictionary 497 (1986).
       Four factors are considered in reviewing a district court’s dismissal for failure to prosecute:
       (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.
Knoll, 176 F.3d at 363. The foregoing factors “have been applied more stringently in cases where
the plaintiff’s attorney’s conduct is responsible for the dismissal.” Harmon v. CSX Transp., Inc.,
110 F.3d 364, 367 (6th Cir. 1997). “Although typically none of the factors is outcome
dispositive, . . . a case is properly dismissed by the district court where there is a clear record of
delay or contumacious conduct.” Knoll, 176 F.3d at 363.
        To support a finding that a plaintiff’s actions were motivated by willfulness, bad faith, or
fault under the first factor, the plaintiff’s conduct “must display either an intent to thwart judicial
proceedings or a reckless disregard for the effect of his conduct on those proceedings.” Wu, 420
F.3d at 643 (brackets and internal quotation marks omitted) (concluding that the plaintiff’s failure
to seek a default judgment did not evince the requisite intent under the first factor because the
plaintiff had relied on the fact that a stipulated order to stay the proceeding was pending before the
court); see also Mulbah v. Detroit Bd. of Educ., 261 F.3d 586, 592 (6th Cir. 2001) (finding that the
plaintiff was not culpable under the first factor because the record lacked evidence showing that the
plaintiff had either failed to respond to discovery requests or had acted in contempt of a court order
compelling cooperation with such requests). But see Harmon, 110 F.3d at 368 (affirming the
dismissal of the case and finding the plaintiff’s conduct to be “stubbornly disobedient and willfully
contemptuous” where the plaintiff, for nearly one year, failed to respond to discovery requests and
a motion to compel, did not comply with a court order, and filed no response to a motion to dismiss
even after the district court granted an extension).
        This court has held, for purposes of the second factor, that a defendant is prejudiced by the
plaintiff’s conduct where the defendant “waste[d] time, money, and effort in pursuit of cooperation
which [the plaintiff] was legally obligated to provide.” Id.; see also Wu, 420 F.3d at 644 (finding
no prejudice to the defendant from the plaintiff’s failure to prosecute where the defendant did not
oppose the plaintiff’s subsequent efforts to reinstate the lawsuit).
       As for the third factor, “[p]rior notice, or the lack thereof, is . . . a key consideration” in
determining whether a district court abused its discretion in dismissing a case for failure to
prosecute. Stough, 138 F.3d at 615. “This court has repeatedly reversed district courts for
dismissing cases because litigants failed to appear or to comply with pretrial orders when the district
courts did not put the derelict parties on notice that further noncompliance would result in
dismissal.” Wu, 420 F.3d at 644 (internal quotation marks omitted).
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         Finally, “the sanction of dismissal is appropriate only if the attorney’s actions amounted to
failure to prosecute and no alternative sanction would protect the integrity of the pretrial process.”
Id. (brackets, emphasis, and internal quotation marks omitted). Such caution is necessary because
“where the district court has not manifested consideration of less drastic sanctions, it is more
difficult, although not impossible, for this court to conclude that the district court exercised its
discretion with appropriate forethought.” Harmon, 110 F.3d at 368-69. This court, however, has
“never held that a district court is without power to dismiss a complaint, as the first and only
sanction, solely on the basis of the plaintiff’s counsel’s neglect” and is “loathe to require the district
court to incant a litany of the available lesser sanctions.” Id. at 368 (explaining that the court “do[es]
not assume that lesser sanctions were not considered simply because their consideration is not
articulated”). Although this court “understand[s] this factor to require particular caution in the
absence of contumacious conduct,” a district court’s failure to articulate lesser sanctions “is not
necessarily fatal.” Id. at 368 (internal quotation marks omitted).
C.      Dismissal of Schafer’s complaint
         Schafer argues on appeal that the district court erred in dismissing his complaint for failure
to satisfy the pleading standards set forth in Rule 8 and to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure. But the June 7, 2007 order of dismissal shows that the district
court unambiguously dismissed the complaint solely because Schafer had failed to refile his
complaint by the April 20, 2007 deadline. In light of the record, Schafer’s argument at best
demonstrates a lack of understanding of the district court proceedings and, at worst, represents an
attempt to misrepresent to us the reasons for the district court’s decision.
        The district court, to be sure, did not explain the basis for its earlier dismissal of Schafer’s
complaint, without prejudice, in October of 2006. Its order simply states that the complaint was
being dismissed without prejudice “on motion of defendants,” and the record unfortunately contains
no documentation confirming the specific reason for that dismissal. The defendants contend that
the district court dismissed the complaint because of the ethical concern about the same attorney
representing both Schafer and Andrea. Because Schafer does not challenge that assertion, we accept
the defendants’ explanation of the basis for the district court’s dismissal of his complaint without
prejudice in October of 2006.
       So even though more information about the circumstances surrounding the October 2006
dismissal without prejudice would have aided our review, this appeal concerns the district court’s
June 13, 2007 judgment dismissing Schafer’s complaint with prejudice for failure to prosecute his
case. Our analysis therefore applies the four-factor test that is set forth in Part II.B. above to that
judgment.
        1.      The first factor: willfulness, bad faith, or fault
        The district court’s dismissal of Schafer’s complaint with prejudice rested on the fact that
Schafer had not refiled his complaint within the six-month period specified in the court’s October
6, 2006 order. Specifically, the court rejected Schafer’s request for a deadline extension (submitted
two months after the refiling period had expired) as well as his argument that being incarcerated
caused attorney-client communication problems. It explained that prisoner-plaintiffs are not entitled
to “unlimited postponements” just because they are incarcerated.
        A finding of fault in this context requires evidence that the plaintiff intended to “thwart” the
judicial proceedings or had a “reckless disregard” for the effect that his conduct would have on the
case. Wu, 420 F.3d at 643. Here, Schafer did not violate any court orders while pursuing his claims
against the defendants. That distinguishes him from the plaintiff in Harmon, who was found to have
acted in bad faith because he did not respond to court-ordered discovery requests for several months.
110 F.3d at 368. In Mulbah, on the other hand, the plaintiff was found not to have acted in bad faith
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because the plaintiff had neither violated a court order nor failed to respond to defense counsel’s
requests. 261 F.3d at 592. Neither had Schafer, but he was not entirely without fault. He did not
refile his complaint within six months and did not ask for an extension to refile until long after the
deadline had passed. Schafer also cites no efforts on his part to meet the six-month deadline and
does not explain how his incarceration impeded such efforts. Although his conduct does not
establish bad faith, it nevertheless shows willfulness and fault in that he was at best extremely
dilatory in not pursuing his claim, which indicates an intention to let his case lapse. We therefore
conclude that this factor supports the district court’s finding that Schafer’s conduct amounted to a
failure to prosecute his claim.
       2.      The second factor: prejudice to the defendants
        In its order dismissing the complaints of both Schafer and Andrea, the district court
concluded that the pendency of the litigation had, and would continue to have, “an adverse impact”
on the defendants’ creditworthiness. It did not, however, explain whether or to what degree such
prejudice was attributable to the pendency of Schafer’s lawsuit (which had been inactive since
October of 2006 when his complaint was dismissed without prejudice), as compared to the pendency
of Andrea’s lawsuit (which remained active, without interruption).
        The key to finding prejudice in a dismissal for lack of prosecution is whether the defendants
“waste[d] time, money, and effort in pursuit of cooperation which [the plaintiff] was legally
obligated to provide.” Harmon, 110 F.3d at 368. No evidence of these factors exists with respect
to Schafer’s complaint. Accordingly, none of the prejudice that the district court found can fairly
be attributed to his lawsuit.
         From the time when the initial complaint was filed to the time when Schafer’s complaint was
finally dismissed with prejudice, the defendants’ only efforts in response to the complaint were to
(1) file an answer and an amended answer, (2) attend two scheduling conferences with the district
court, and (3) submit a two-and-a-half-page report requesting an expedited litigation track and
addressing other case-management matters. None of those efforts were necessitated by any lack of
cooperation by Schafer. They are instead typical steps in the early stages of litigation and are to be
expected when one is served with a complaint.
       Moreover, all of the foregoing occurred during the relatively short period of time between
March and October of 2006. And none of the defendants’ filings after that time related to Schafer’s
lawsuit because his complaint was dismissed in October of 2006. Notably, even the defendants’
final motion to dismiss, filed after the expiration of Schafer’s refiling deadline, did not seek a final
dismissal with prejudice of Schafer’s complaint. It sought such dismissal only with regard to
Andrea’s complaint.
        If such efforts on the part of the defendants are alone sufficient to establish prejudice, then
every defendant who answers a complaint and responds even minimally to a lawsuit would be able
to claim prejudice. That result would defy common sense. Accordingly, the prejudice prong of the
analysis weighs against finding that the dismissal of Schafer’s complaint was appropriate.
       3.      The third factor: prior notice
        Schafer was indisputably on notice from the court that if he did not refile his complaint
within six months, the complaint would be dismissed with prejudice. He could have found another
attorney to represent him or, if he was unable to do so, he could have simply refiled his original
complaint as a pro se litigant, without his children listed as coplaintiffs. Nothing in the record
indicates that the district court abused its discretion in determining that six months was an
appropriate period of time to allow for refiling. This third factor, which is a “key consideration” in
the analysis, see Stough, 138 F.3d at 615, therefore supports the district court’s dismissal.
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        4.      The fourth factor: consideration of lesser sanctions
        The district court first dismissed Schafer’s complaint without prejudice before later
dismissing it with prejudice, thus giving him a second chance to file his complaint in compliance
with the district court’s ruling (apparently to resolve an ethical concern about his attorney also
representing Andrea). This factor therefore weighs in favor of finding that the district court acted
within its discretion in dismissing the complaint.
        5.      Conclusion
         Three factors (fault, prior notice, and lesser sanctions) weigh in favor of affirming the district
court’s decision and one factor (prejudice) weighs against affirming that decision. Although the
record contains little, if any, evidence that the defendants were actually prejudiced by Schafer’s
failure to prosecute his claims, that factor is outweighed by (1) his failure to either refile his
complaint or timely ask for an extension, (2) the six months’ notice that the court gave him before
dismissing his complaint with prejudice, and (3) the court’s prior imposition of a lesser sanction
(i.e., dismissal without prejudice). We therefore conclude that the district court did not abuse its
discretion in dismissing Schafer’s complaint.
D.      Dismissal of Andrea’s complaint
        The district court also dismissed Andrea’s complaint with prejudice for failure to prosecute.
Its reasons are set forth in the court’s order and in the defendants’ motion to dismiss, which the court
incorporated into its order of dismissal. On appeal, Andrea challenges the dismissal on the grounds
that she was merely late for her deposition, that her counsel did not receive a bill for defense costs
related to the December 2006 deposition, and that she could not afford to pay defense counsel’s bill,
which was in the amount of $1,000.
        1.      The first factor: willfulness, bad faith, or fault
        In dismissing Andrea’s action, the district court cited her failure to comply with various court
orders. Those orders had directed Andrea to (1) appear for the December 2006 deposition, (2) either
accept or reject by a certain date the defendants’ statement of expenses arising from her failure to
appear for that deposition, (3) reimburse the defendants for those costs, and (4) reschedule the
deposition.
        The court found that Royer had not made a good faith effort to comply with the court’s
orders, citing as an example his failure to contact defense counsel for a statement of the December
deposition expenses after allegedly not receiving such a statement. And Royer had asked for
deadline extensions in December of 2006 and in April of 2007 based on the claim that he was
moving his office, even though his mailing address did not change during the course of the
proceedings below. He also repeatedly failed to file electronically, in contravention of several court
orders and the local court rules, and agreed to schedule Andrea’s deposition on December 28, 2006
on the condition that it last for only one hour so that he could attend a CLE seminar.
        The district court further called Andrea to task for failing to attend the December deposition,
inform her attorney of how to contact her, and pay the expenses that defense counsel incurred in
connection with the December deposition. On appeal, Andrea does not dispute these facts.
Moreover, she has never provided an explanation for why, even if she could not afford to pay the
defense counsel’s expenses, she did not at least comply with the district court’s order to either accept
or reject the claimed expenses by the date specified.
       Royer’s conduct calls into question the manner in which he handled Andrea’s case and
supports the district court’s conclusion that he repeatedly acted with disregard for the effect of his
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conduct on the judicial proceedings. See Wu, 420 F.3d at 643. Indeed, Royer’s performance was
so deficient that he created the risk that his clients would be penalized for his conduct. His
performance has not improved on appeal. The portion of the brief relating to Andrea’s appeal
contains only two brief paragraphs reciting the factual assertions that he used to oppose the
defendants’ final motion to dismiss. And the entirety of his appellate argument on behalf of Schafer
is that the district court erred in dismissing the complaint on two grounds that were clearly not the
basis for the court’s decision, as noted in Part II.C. above. Particularly troubling is the fact that
Royer accepted representation of clients who likely had a conflict of interest and, even more so, the
fact that he continues to this day to represent all of the plaintiffs even after the district court
instructed him to choose to represent either Schafer or Andrea. The foregoing conduct casts a
shadow on the credibility of Royer and, by extension, his clients and their claims.
        As previously noted, this court is reluctant to affirm the dismissal of a case in order to
discipline an “errant attorney” because doing so “deprives the client of his day in court.” Harmon,
110 F.3d at 367 (internal quotation marks omitted). But here the district court also faulted Andrea
for her own conduct. At one point the court characterized her attention to prosecuting the action as
“nearly imperceptible.” Andrea argues that she was merely late for the December 2006 deposition
and that she got lost on her way there. As a result, the district court ordered her to submit to a
deposition at a later time or face dismissal of the suit. But she again did not comply for reasons that
remain unexplained. Even more problematic is the fact that she did not keep her attorney informed
of her whereabouts or how to reach her while the litigation was actively ongoing.
        Although Royer’s deficient performance likely impeded Andrea’s ability to prosecute her
lawsuit, the district court found that Andrea was at least partially to blame. The record contains no
evidence showing that the district court’s findings regarding Andrea’s own conduct were clearly
erroneous. We therefore conclude that Andrea’s actions, together with those of her attorney, support
the district court’s decision to dismiss her complaint.
       2.      The second factor: prejudice to the defendants
        Andrea does not dispute the district court’s finding that the pendency of the litigation had
and would continue to have “an adverse impact on [the defendants’] credit-worthiness.” In addition,
the record shows that the defendants expended time, money, and effort in pursuing cooperation from
Andrea that she was legally obligated to provide under court order—for example, in attempting to
take Andrea’s deposition in December of 2006 pursuant to the court’s November 17, 2006 order.
See id. Thus the second factor weighs in favor of finding that the district court did not abuse its
discretion in dismissing Andrea’s complaint.
       3.      The third factor: prior notice
         The district court indisputably put Andrea on notice that continued noncompliance with the
court’s orders would result in dismissal of her suit. In its March 6, 2007 order, the court gave her
“one more chance” to demonstrate her commitment to prosecuting the case. It also explicitly stated
that a failure of Andrea to appear for a deposition by April 20, 2007 would result in a dismissal of
the case. Accordingly, the third factor, which this court has identified as a “key consideration” in
the analysis, see Stough, 138 F.3d at 615, also weighs in favor of finding that the district court’s
dismissal was not an abuse of discretion.
       4.      The fourth factor: consideration of lesser sanctions
        In warning Andrea that her action would be dismissed if she failed to reschedule the
deposition by the specified date, the district court also ordered her to pay the costs that defense
counsel incurred in connection with her nonappearance at the December 2006 deposition. This
indicates that the court considered less drastic sanctions than dismissal for Andrea’s dilatory
No. 07-3933           Schafer et al. v. City of Defiance Police Dep’t et al.                   Page 10


conduct. Yet she failed to comply with the court’s order imposing the lesser sanction. Thus the
fourth factor also weighs in favor of concluding that the district court did not abuse its discretion in
dismissing the action.
       5.      Conclusion
       In sum, each of the four factors weighs in favor of concluding that the district court did not
abuse its discretion when it dismissed Andrea’s lawsuit with prejudice for failure to prosecute.
We therefore affirm the district court’s judgment with regard to her complaint.
                                        III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
