In the
United States Court of Appeals
For the Seventh Circuit

No. 99-2094

BOBBY R. LONG, JR.,

Plaintiff-Appellant,

v.

TOM STEEPRO, in his individual capacity,
WILLIAM HARTLEY, in his individual
capacity, and DANIEL BODLOVICH,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Indiana, South Bend
Division.
No. 97 C 696--Allen Sharp, Judge.


ARGUED MARCH 29, 2000--DECIDED MAY 30, 2000



  Before FLAUM, RIPPLE and KANNE, Circuit
Judges.

  RIPPLE, Circuit Judge. The district
court dismissed with prejudice Bobby Ray
Long, Jr.’s civil action for failure to
timely file his witness and exhibit list.
For the reasons set forth in the
following opinion, we reverse the
judgment of the district court and remand
the case for further proceedings.

I
BACKGROUND

  Mr. Long filed his pro se complaint in
the Northern District of Indiana on
October 28, 1997. In that complaint, Mr.
Long alleged that employees of the
Indiana State Prison at Michigan City had
violated his civil rights by failing to
protect him from another inmate. The
Attorney General of Indiana entered his
appearance for the defendant prison
officials, Tom Steepro, William Hartley,
and Daniel Bodlovich.

  After two enlargements of time, the
defendants filed their answer to Mr.
Long’s amended complaint on June 12,
1998. Shortly thereafter, on June 17,
1998, the district court issued an order
that required all discovery to be
completed by September 30, 1998 and
dispositive motions to be filed by
October 9, 1998. During this phase of the
proceedings, the defendants moved for
several enlargements of time to answer
discovery and to file their motions for
summary judgment. The district court
granted all of the requested extensions.

  On January 11, 1999, after a telephonic
conference with the magistrate judge, the
district court issued a "Scheduling Order
and Memorandum" ("Scheduling Order") to
govern pre-trial deadlines. The order
required the defendants to serve Mr. Long
with a final written settlement proposal
by February 5, 1999. The order also
instructed Mr. Long to file his list of
witnesses, exhibits, and contentions no
later than April 2, 1999. According to
the order, "[f]ailure to file and serve
such list within the time allowed will
result in the dismissal of plaintiff’s
action." R.67 at 3. In the same order,
the district court stated that the
Scheduling Order would be modified only
by leave of court and for good cause
shown.

  Shortly after the scheduling conference,
on February 1, 1999, the defendants filed
their motion for summary judgment. The
defendants failed, however, to serve Mr.
Long with "a written final settlement
proposal" by February 5, 1999, as
required by the Scheduling Order. Id. at
1. Instead, on February 3, 1999, the
defendants filed a "Position Regarding
Settlement," which stated: "Defendants
are currently not in a position to offer
Plaintiff a settlement proposal and will
be in a position to discuss settlement
with Plaintiff after the Court has ruled
on Defendants’ Motion for Summary
Judgment, submitted on January 29, 1999."
R.76.

  Mr. Long timely filed his response to
the motion for summary judgment. However,
Mr. Long did not meet the April 2, 1999,
deadline for filing his list of
witnesses, exhibits, and contentions.
This was the first deadline that Mr. Long
missed.

  On April 9, 1999, the magistrate judge
sua sponte issued a report and
recommendation (the "April 9 Report")
that Mr. Long’s action be dismissed
pursuant to Federal Rule of Civil
Procedure 16(f) for failure to comply
with the Scheduling Order. The April 9
Report referenced the district court’s
prior warning to Mr. Long that failure to
timely file his witness and exhibit list
would result in dismissal; it did not
address the adequacy of lesser sanctions.

  Mr. Long filed his objections to the
April 9 Report on April 16, 1999.
Specifically, Mr. Long explained that it
was his belief that the summary judgment
motion was still pending and, during the
pendency of the motion, all other court
actions were suspended. He stated:

Because Plaintiff believed that the
Court’s decision on the defendants’
summary judgement motion was still
pending Plaintiff neglected to comply
with this Court’s Scheduling Order of
January 11, 1999 inadvertenly [sic] in
that he interpreted summary judgment
proceedings to suspend all other
proceedings pending the Court’s decision
whether to grant or deny summary judgment
requests, thus Plaintiff believed that
submitting other matters to the court
would be futile or moot.
R.84 at 1-2. Mr. Long also asked the
district court to consider his diligence
"in complying with all of the court’s
orders through the course of the
proceedings" and argued that his
"inadvertent neglect . . . was
excusable." Id. at 2.

  On April 22, 1999, the district court
approved the April 9 Report. It did not
address the merits of Mr. Long’s
objections, nor did it consider
alternative sanctions./1
  Mr. Long now appeals the dismissal of
his action.

II
DISCUSSION

  We review a district court’s dismissal
of an action pursuant to Federal Rule of
Civil Procedure 16(f)/2 for an abuse of
discretion. See Lucien v. Breweur, 9 F.3d
26, 29 (7th Cir. 1993) (reviewing a
dismissal of an action pursuant to Rules
16, 37 and 41 for an abuse of
discretion). In determining whether the
sanction of dismissal constituted an
abuse of discretion, we look to the
entire procedural history of the case.
See Patterson v. Coca-Cola Bottling Co.,
852 F.2d 280, 284 (7th Cir. 1988);
Schilling v. Walworth County Park &
Planning Comm’n, 805 F.2d 272, 275 (7th
Cir. 1986). "The choice of appropriate
sanctions is primarily the responsibility
of the district court," Patterson, 852
F.2d at 283; however, "the sanction
selected must be one that a reasonable
jurist, apprised of all the
circumstances, would have chosen as
proportionate to the infraction." Salgado
v. General Motors Corp., 150 F.3d 735,
740 (7th Cir. 1998).

  We are particularly vigilant in
requiring proportionality "where the
draconian sanction of dismissal is
imposed." Marrocco v. General Motors
Corp., 966 F.2d 220, 223-24 (7th Cir.
1992)./3 We often have noted that the
interests of justice are best served by
resolving cases on their merits;
consequently, "[t]he sanction of
dismissal with prejudice must be
infrequently resorted to by district
courts in attempting to control their
dockets and extirpate nuisance suits."
Schilling, 805 F.2d at 275. This ultimate
sanction is reserved for cases in which
the offending party has demonstrated wil
fulness, bad faith, or fault. See Downs
v. Westphal, 78 F.3d 1252, 1256 (7th Cir.
1996) (citing Patterson, 852 F.2d at
283). "Absent [these] circumstances, the
careful exercise of judicial discretion
requires that a district court consider
less severe sanctions and explain, where
not obvious, their inadequacy for
promoting the interests of justice."
Schilling, 805 F.2d at 275. With these
standards in mind, we turn to Mr. Long’s
actions to determine if they warranted
such a penalty.

  Mr. Long, proceeding pro se, prosecuted
his complaint without incident for over
one year. He timely answered discovery
requests served on him, responded in a
timely fashion to the defendants’ motion
for summary judgment, and properly
requested leave of court when he sought
to amend his complaint. Mr. Long’s only
misstep was his failure to file his
evidentiary lists by the deadline set in
the Scheduling Order.
  The defendants do not claim that Mr.
Long’s failure was wilful, deliberate, or
in bad faith. Instead, the defendants
argue that the penalty was appropriate
because Mr. Long was warned that his
action would be dismissed if he failed to
comply with the Scheduling Order./4
Given the warning, continue the
defendants, Mr. Long’s actions were
unreasonable, constituted "fault" as that
term has been used in our case law, and
consequently merited the harsh sanction
imposed by the district court.

  As stated above, dismissal as a sanction
is only appropriate when "the
noncomplying party acted with wilfulness,
bad faith or fault." Marrocco, 966 F.2d
at 224. Although wilfulness and bad faith
are associated with conduct that is
intentional or reckless, the same is not
true for "fault." Fault "does [not] speak
to the noncomplying party’s disposition
at all, but rather only describes the
reasonableness of the conduct--or lack
thereof--which eventually culminated in
the violation." Id.

  Fault, however, is not a catch-all for
any minor blunder that a litigant or his
counsel might make. Fault, in this
context, suggests objectively
unreasonable behavior; it does not
include conduct that we would classify as
a mere mistake or slight error in
judgment. For instance, in Marrocco, we
determined that the Goodyear Tire and
Rubber Co., the defendant in the
consolidated appeal, was at fault because
it had packaged carelessly evidence that
was lost in transit; it had stood idly by
for months before it attempted to
investigate the loss; and it delayed even
longer before informing the plaintiffs
that the evidence was missing. "These
omissions," we stated, "cannot be
characterized merely as mistake or
carelessness. Rather, they reflect gross
negligence on the part of Goodyear--a
flagrant disregard of its assumed duty,
under the protective order, to preserve
and monitor the condition of evidence
which could be pivotal in the lawsuit."
966 F.2d at 224.

  We believe that the missed deadline in
the present case was, unlike the actions
of the defendant in Marrocco, a "mere
mistake." Although Mr. Long was warned
that dismissal was possible, it was
reasonable for him to believe that all
proceedings were stayed pending a ruling
from the district court on the summary
judgment motion. The reasonableness of
Mr. Long’s actions are confirmed by the
actions of the defendants during the same
time period. Although ordered by the
court to submit a final settlement offer
to Mr. Long by February 5, 1999, they did
not comply. Instead, in a submission to
the court on February 2, 1999, they
stated that they were "currently not in a
position to offer plaintiff a settlement
proposal and will be in a position to
discuss settlement after the court has
ruled on the Defendants’ Motion for
Summary Judgment." R.76. The defendants’
submission suggested exactly what Mr.
Long concluded: without a ruling on the
summary judgment motion, the parties were
in procedural limbo, and the deadlines of
the Scheduling Order did not apply. Given
Mr. Long’s reasonable understanding that
summary judgment could dispose of the
case in its entirety, and given the
defendants’ actions confirming his belief
that other deadlines were suspended
pending a ruling on the motion, we cannot
say that Mr. Long acted unreasonably when
he failed to file his evidentiary list in
compliance with the Scheduling Order./5

  Mr. Long’s failure simply is not the
kind of "damning dilatory conduct
normally associated with the sanction of
dismissal." Schilling, 805 F.2d at 275.
Indeed, even a cursory review of our case
law reveals that Mr. Long’s actions bear
no resemblance to the egregious conduct
of parties whose dismissals we have
upheld. For instance, in Downs, the
sanctioned parties "embarked on a course
of conduct that can only be described as
abusive." 78 F.3d at 1255. Their actions
included: failing to respond to
interrogatories; failing to appear for
scheduled depositions; failing to make
mandatory initial discovery disclosures;
violating court orders requiring them to
comply with discovery requests; and
encouraging other parties to be
uncooperative. In those circumstances, we
found overwhelming evidence of bad faith
and, therefore, upheld the default
judgment entered against the offending
parties. See Downs, 78 F.3d at 1257.

  Similarly, in Roland v. Salem Contract
Carriers, Inc., 811 F.2d 1175 (7th Cir.
1987), we upheld the dismissal of an
action in which the plaintiffs were given
almost a year to respond fully to
discovery requests. On at least three
occasions, the district court
specifically ordered them to provide
complete answers to discovery. Yet, the
plaintiffs not only ignored these
mandates, but also ignored two other
court orders to retain local counsel. We,
therefore, agreed with the district court
that these actions established a "’clear
record of delay or contumacious conduct’
sufficient to justify dismissal." 811
F.2d at 1179.

  Finally, in Salgado v. General Motors
Corp., 150 F.3d 735, 740 (7th Cir. 1998),
the plaintiff filed for an initial
extension of time to complete discovery,
which was granted. After the extended
deadline had come and gone, the plaintiff
requested and was granted a second
extension of time to complete discovery,
specifically to submit expert reports. At
the time of the second extension, the
court warned the plaintiff that the new
deadline marked the final cut- off date
and that, unless the reports were timely
filed, the case would be dismissed with
prejudice. Nevertheless, the plaintiff
failed to submit the reports in a timely
fashion, and the late reports also failed
to meet the requirements of Federal Rule
of Civil Procedure 26. The district court
sanctioned the plaintiff by barring her
from presenting any expert testimony,
which resulted in summary judgment for
the defendant. We upheld the district
court’s choice of sanctions in light of
the significant extensions of time, the
clear warning that the action would be
dismissed, and the lack of a
"satisfactory explanation for [the
plaintiff’s] failure to comply with the
directive of the district court."
Salgado, 150 F.3d. at 741.

  Mr. Long’s actions, however, were not
abusive, contumacious, or without
satisfactory explanation. Furthermore,
they did not evidence a pattern of delay,
non-compliance, or lack of prosecutive
intent that might otherwise justify
dismissal without first imposing lesser
sanctions. See, e.g., Newman v.
Metropolitan Pier & Exposition Auth., 962
F.2d 589, 591 (7th Cir. 1992) (upholding
dismissal without prior sanction where
"pattern of noncompliance with the
court’s discovery orders [had]
emerge[d]"); Locascio v. Teletype Corp.,
694 F.2d 497, 499 (7th Cir. 1982)
(upholding dismissal on substantial
record of lack of prosecutive intent),
cert. denied, 461 U.S. 906 (1983). In
stark contrast to the actions set forth
above, Mr. Long’s actions suggest only an
"innocent misunderstanding [and] lack of
familiarity with the law." Downs, 78 F.3d
at 1257.

  Where, as here, a "record of delay,
contumacious conduct, or prior failed
sanctions does not exist, the exercise of
judicial discretion requires that the
district court consider and explain the
inappropriateness of lesser sanctions."
Schilling, 805 F.2d at 278. The record
does not reveal any consideration of
alternative, lesser sanctions.
Furthermore, at no time did the district
court address the merits of Mr. Long’s
arguments or the special circumstances of
his case. The record reveals a "one size
fits all" approach to violations, not one
that "a reasonable jurist, apprised of
all the circumstances, would have chosen
as proportionate to the infraction."
Salgado, 150 F.3d at 740.

  District courts have considerable
discretion in imposing sanctions to
control their dockets. However, in
choosing sanctions available to them
under the Federal Rules, they must
consider the circumstances of the
individual case and, absent a showing of
dilatory behavior, justify imposing the
sanction of dismissal. The record
reflects that the district court did not
follow this established methodology.

Conclusion

  For the foregoing reasons, we reverse
the judgment of the district court and
remand for proceedings consistent with
this opinion.

REVERSED and REMANDED



\1 The district court’s order of April 22, 1999, did
not reference a specific rule as authority for
the dismissal. However, the April 9 Report, which
the district court expressly approved in the
April 22, 1999 order, stated that the recommenda-
tion for dismissal was being made "[i]n accor-
dance with Rule 16(f) of the Federal Rules of
Civil Procedure." R.83 at 2.

/2   Rule 16(f) states in part:

(f) Sanctions. If a party or party’s attorney
fails to obey a scheduling or pretrial order, or
if no appearance is made on behalf of a party at
a scheduling or pretrial conference, or if a
party or party’s attorney is substantially unpre-
pared to participate in the conference, or if a
party or party’s attorney fails to participate in
good faith, the judge, upon motion or the judge’s
own initiative, may make such orders with regard
thereto as are just, and among others any of the
orders provided in Rule 37(b)(2)(B),(C),(D).

Federal Rule of Civil Procedure 16.

/3 Marrocco addressed the district court’s use of
dismissal as a discovery sanction pursuant to
Federal Rule of Civil Procedure 37. 966 F.2d at
223. However, as we noted in Lucien, Rule 16
incorporates the sanctions of Rule 37 and "[t]he
criteria for sanctions under Rules 16(f), 37(b),
and 41(b) are the same." 9 F.3d at 29.

/4 At oral argument, counsel for the defendants
argued that Mr. Long was warned twice that fail-
ure to file his witness and exhibit list would
result in dismissal: once during the scheduling
conference and once in the Scheduling Order. When
questioned specifically concerning the oral
warning, counsel stated that the Scheduling Order
memorialized the events of the scheduling confer-
ence; if an oral warning had not been given, the
warning would not have appeared in the Scheduling
Order. The transcript of the scheduling confer-
ence is not part of the record on appeal, nor
does it appear from the docket sheet that one was
made. In the absence of the transcript, we do not
believe that we can infer an oral instruction
from the admonition contained in the Scheduling
Order.

/5 We note that the confusion caused in this case
was largely of the defendants’ making; their
delay in filing their summary judgment motion
caused the time for consideration of dispositive
motions to encroach on the pre-trial deadlines
set by the court. Had they filed their summary
judgment motion within the original deadline, the
court would have had ample time to consider and
rule on the motion before pre-trial filings were
due.
