                                     ___________

                                     No. 96-2129
                                     ___________

Robert Mann,                        *
                                    *
           Appellant,               *
                                    *    Appeal from the United States
      v.                            *    District Court for the
                                    *    Eastern District of Missouri.
Lawrence Lewis, M.D.; Kevin         *
Baumer, M.D.; John Kefalas,         *
M.D.; Douglas McDonald, M.D.;       *
St. Louis University Hospital,      *
                                    *
           Appellees.               *
                               ___________

                     Submitted:      December 9, 1996

                         Filed:   February 26, 1997
                                   ___________

Before WOLLMAN, BRIGHT, and MURPHY, Circuit Judges.
                               ___________


WOLLMAN, Circuit Judge.


      Robert Mann appeals from the district court's Rule 41(b) dismissal
of his complaint.    We reverse and remand.


                                           I.


      On August 29, 1990, Mann fell from the roof of a building owned by
Kevin and Patricia Jakoubek.      The Jakoubeks brought Mann to the emergency
department at St. Louis University Hospital for treatment of the fracture
in his right leg that Mann suffered in the fall.            Approximately five hours
later, Mann was transferred to St. Louis Regional Hospital.             Mann's right
leg   was   eventually   amputated    in    December   of    1991,   allegedly   as   a
consequence of negligent treatment Mann received at the hospital.
     On August 28, 1992, Mann filed suit in the Circuit Court of the City
of St. Louis, Missouri, against the Jakoubeks, St. Louis University
Hospital, Lawrence Lewis, M.D., Kevin Baumer, M.D., John Kefalas, M.D.,
Douglas McDonald, M.D., Jeffrey Kugler, M.D., and an unknown employee or
employees of St. Louis University Hospital.   Following the removal of the
case to district court, Mann's claims against the Jakoubeks and Dr. Kugler
were dismissed for failure to prosecute.


     On November 17, 1994, the district court issued a pretrial order that
directed the parties to comply with a number of requirements not less than
ten days before trial.    The trial date was continued a number of times,
with trial finally scheduled to commence on March 11, 1996, on Mann's
claims against the remaining defendants.       The defendants filed their
required pretrial documents and information on March 1, 1996.   Mann's then-
attorney, Drew Baebler, failed in all respects to comply with the pretrial
order.


     On February 21, 1996, the district court ordered Mann's expert, Dr.
Oppenheim, to provide answers by March 5, 1996, to two questions he had
refused to answer in his December 8, 1995, deposition.     The answers were
not mailed until March 5, 1996, and the defendants did not receive them
until March 7, 1996.


     On March 6, 1996, the defendants moved for dismissal of Mann's case
with prejudice.   On March 7, 1996, the district court granted the motion,
explaining that Mann's failure to comply with the November 17, 1994,
pretrial order and his untimely response to the February 21, 1996, order
directly violated those orders and prejudiced the defendants by inhibiting
their ability to prepare for trial.


     On March 7, 1996, Mann, through Baebler, moved for dismissal without
prejudice.   In the motion, Baebler explained that the failure to comply was
due to his discovery of facts completely




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destroying Dr. Oppenheim's credibility as a witness.               Baebler stated that
he had learned during Dr. Oppenheim's October 10 and December 8, 1995,
depositions that Oppenheim was no longer a licensed medical doctor and that
two states had revoked his license for misusing his Drug Enforcement Agency
privileges    to   prescribe   narcotics    for   himself    and    for    making   false
statements    under   oath.    Baebler     also   stated    that    he    more   recently
discovered that Oppenheim had been ordered to repay expert witness fees for
lying about his credentials in open court.        Baebler did not explain why he
failed to take prompt action when these facts came to his attention.                  The
district court denied the motion.


                                         II.


     Mann argues that his case should not have been dismissed with
prejudice because he did not engage in willfully disobedient or calculated
conduct that warranted dismissal.          He suggests that the district court
should have considered alternative, less-drastic sanctions.


      We recognize the importance of the expeditious treatment of cases
in the district courts and the right of parties not to suffer prejudice as
a result of an opposing party's dilatory conduct.                    To protect these
interests, a district court has the power to dismiss cases when parties
fail to comply with its rules.       See Fed. R. Civ. P. 41(b); Moore v. St.
Louis Music Supply Co., Inc., 539 F.2d 1191, 1193 (8th Cir. 1976).


     Nevertheless, "not every instance of failure to comply with an order
of court, however inexcusable, justifies total extinction of a client's
cause of action."     Givens v. A.H. Robins Co., Inc., 751 F.2d 261, 263 (8th
Cir. 1984).    "Dismissal with prejudice is an extreme sanction and should
be used only in cases of willful disobedience of a court order or . . .
persistent failure to prosecute a complaint."               Id.      A district court
should weigh the




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court's need to advance its heavy docket against the consequence of
irreversibly extinguishing the litigant's claim and consider whether any
less-severe sanction could adequately remedy the effect of the delay on the
court and the prejudice to the opposing party.              See Moore, 539 F.2d at
1193; see also Garland v. Peebles, 1 F.3d 683, 686-87 (8th Cir. 1993).


      We    agree    that   sanctions    were   certainly   warranted   for    Mann's
unjustified failure to comply with the district court's orders.          Dismissing
Mann's     case   with   prejudice,     however,   was   disproportionate     to   his
transgression.      Mann himself did not engage in any intentional or willfully
disobedient conduct designed to delay the proceedings or frustrate the
defendants' preparations for trial.        Rather, the failure to comply was due
solely to Baebler's lack of diligence.          Under the facts of this case, Mann
should not be made to shoulder such a grave consequence -- the total
extinction of his claim -- for Baebler's dereliction.          See Moore, 539 F.2d
at 1194.


      Therefore, notwithstanding our reluctance to interfere with the
district court's management of its docket, we conclude that dismissal
without prejudice is a more fitting sanction here.          See id.   Such a remedy
will relieve the district court of the burden of Mann's unprepared case,
yet   preserve Mann's day in court.             Assessing costs against Baebler
personally, a sanction within the district court's power, see id. at 1193
n.2, would compensate the defendants for the prejudice they suffered.


      Accordingly, we reverse the order dismissing the action, and we
remand the case to the district court for entry of an order of dismissal
without prejudice.       We leave it to the district court to determine, in its
sound discretion, the costs to be assessed against Baebler, as well as any
appropriate disciplinary action to be taken against him.




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A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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