In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1280

Leroy Bolt,

Plaintiff-Appellant,

v.

Robert Loy and Village of Winthrop Harbor,

Defendants-Appellees.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 2841--William J. Hibbler, Judge.


Argued August 9, 2000--Decided September 13, 2000




 Before Posner, Ripple, and Williams, Circuit Judges.

 Posner, Circuit Judge. This appeal from the
dismissal of a suit because of the plaintiff’s
failure to meet a deadline presents a new twist
on the old problem of dismissal as a sanction for
untimely pleadings. The plaintiff filed this suit
under 42 U.S.C. sec. 1983 in April of last year
in state court, from which the defendants removed
the case to federal district court (an odd move,
considering that the defendants are an Illinois
municipality and its head). The defendants then
filed a motion to dismiss the suit for failure to
state a claim. Fed. R. Civ. P. 12(b)(6). The
plaintiff asked for and received an extension of
time until September 15 to respond to the motion.
On December 9, the plaintiff having failed to
file his response, the defendants asked the judge
to set a definite briefing schedule. They noticed
the motion for a hearing before him on January 5,
and the plaintiff filed his response that day,
but it was too late, for on the previous day the
judge had dismissed the suit with prejudice
because of the plaintiff’s failure to file a
response. The judge pointed out that the response
was nearly three months overdue, and concluded
that the plaintiff had abandoned the case,
adding: "had plaintiff not intended to respond to
defendants’ motion, he should have submitted a
one-page motion to voluntarily dismiss this
action." The judge did not address the merits of
the defendants’ Rule 12(b)(6) motion. The
plaintiff promptly filed a motion to alter the
judgment, pointing out that he had not intended
to abandon the case. The judge denied the motion
without explanation.

 We can think of three possible grounds for
dismissing a suit because a response by the
plaintiff to a defendant’s motion is overdue: the
plaintiff by his action has indicated that he is
abandoning his suit; the plaintiff is failing to
prosecute the suit, whether or not he intends to
abandon it; the plaintiff should be sanctioned,
by dismissal, for his tardiness. The judge’s
ground was the first, that the plaintiff by his
tardiness had demonstrated his intention to
dismiss the suit; that is why the judge chided
the plaintiff for not moving for voluntary
dismissal. It was unreasonable for the judge to
draw such an inference and to fail to correct it
when the error was pointed out to him. There are
a myriad of reasons why a party might be months
late in responding to a motion. The likeliest,
and apparently the one here, is carelessness,
rather than intent to abandon the suit. Another
possibility, one we encounter frequently in our
court, is that the party opposing the motion
thinks the motion’s lack of merit so patent that
no response is required. When that happens the
court either orders the party to respond or
decides the motion without the benefit of a
response. The district judge might have decided
the defendants’ motion to dismiss on the merits
when the plaintiff missed the deadline for
responding, a risk the plaintiff knew he was
running because the judge had indicated that he
would rule on the motion by mail, implying that
the ruling could come anytime after September 15.
See N.D. Ill. R. 12(P).

 A plaintiff’s failure to respond that delays the
litigation can be a basis for a dismissal for
lack of prosecution, Link v. Wabash R.R., 370
U.S. 626, 629, 633 (1962), or, what often amounts
to the same thing, see Fed. R. Civ. P. 41(b);
Federal Election Comm’n v. Al Salvi for Senate
Comm., 205 F.3d 1015, 1018 (7th Cir. 2000), as a
sanction for misconduct. But the judge should
warn the plaintiff that he is considering the
imposition of such a sanction, Kruger v. Apfel,
214 F.3d 784, 787 (7th Cir. 2000); Ball v. City
of Chicago, 2 F.3d 752, 755 (7th Cir. 1993);
Gardner v. United States, 211 F.3d 1305, 1309-10
(D.C. Cir. 2000); Angulo-Alvarez v. Aponte de la
Torre, 170 F.3d 246, 252 (1st Cir. 1999); but cf.
Hunt v. City of Minneapolis, 203 F.3d 524, 527
(8th Cir. 2000), either explicitly or by making
clear that no further extensions of time will be
granted. Williams v. Chicago Board of Education,
155 F.3d 853 (7th Cir. 1998) (per curiam); In re
Bluestein & Co., 68 F.3d 1022, 1027 (7th Cir.
1995); Patterson by Patterson v. Coca Cola
Bottling Co., 852 F.3d 280, 285 (7th Cir. 1988)
(per curiam). Even without a warning, egregious
misconduct can be punished by dismissal. In re
Bluestein & Co., supra, 68 F.3d at 1026; In re
Eisen, 31 F.3d 1447, 1455 (9th Cir. 1994).

 Ordinary misconduct, however, can be punished by
dismissal only after a warning and after the
judge determines that dismissal is an appropriate
sanction in the circumstances. Kovilic
Construction Co. v. Missbrenner, 106 F.3d 768,
773 (7th Cir. 1997); see also Ball v. City of
Chicago, supra, 2 F.3d at 758. That requires him
to consider the gravity of the misconduct, the
prejudice if any to the defendant, and whether
the suit has any possible merit (if not, there is
no reason to keep it alive). Id. at 759-60;
Williams v. Chicago Board of Education, supra,
155 F.3d at 857; Knoll v. American Tel. & Tel.
Co., 176 F.3d 359, 363 (6th Cir. 1999). The
touchstone is proportionality. It will be open to
the district court on remand, therefore, to
consider whether under the governing standards
dismissal of this suit with prejudice would be an
appropriate sanction for the plaintiff’s failure
to respond to the defendants’ motion to dismiss
until January 5; whether an alternative sanction,
such as not allowing the plaintiff’s response to
be filed and deciding the Rule 12(b)(6) motion on
the merits without the aid of that response,
would be more appropriate, see LeBeau v. Taco
Bell, Inc., 892 F.2d 605, 610 (7th Cir. 1989);
Gardner v. United States, supra, 211 F.3d at
1309-10; Garland v. Peebles, 1 F.3d 683, 687 (8th
Cir. 1993); Doyle v. Murray, 938 F.2d 33, 34 (4th
Cir. 1991); or whether no sanction would be
appropriate, given the absence of prejudice to
the defendants and the fact that the plaintiff’s
tardiness, while careless and regrettable, was
not egregious. It also was not his error but his
lawyer’s, and it is ordinarily preferable (see
Dunphy v. McKee, 134 F.3d 1297, 1301-02 (7th Cir.
1998); Ball v. City of Chicago, supra, 2 F.3d at
758; Adams v. Trustees of New Jersey Brewery
Employees’ Pension Trust Fund, 29 F.3d 863, 873
(3d Cir. 1994)) to sanction the lawyer for the
lawyer’s mistake than, by dismissing the suit, to
precipitate a second suit--a suit against the
lawyer for malpractice. The courts have more than
enough legal business as it is.

 What is clear is that the ground upon which the
district judge did dismiss the plaintiff’s suit
was, in the circumstances, improper.

Reversed and Remanded.
