                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-2006
                                   ___________

Larry Ray Smith,                        *
                                        *
            Plaintiff – Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Gold Dust Casino; Full House, Inc.;     *
Harry Christianson, Owner;              *
Brian Carmichael, General Manager;      *
Tony Milos, Human Resources             *
Manager,                                *
                                        *
            Defendants – Appellees.     *
                                   ___________

                             Submitted: March 14, 2008
                                Filed: May 27, 2008
                                 ___________

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

BRIGHT, Circuit Judge.

      Appellant, Larry Ray Smith (“Smith”), brought an action pro se against
Appellees, Gold Dust Casino, Full House, Inc., Harry Christianson, Brian Carmichael,
and Tony Milos (collectively “Gold Dust”), alleging that he had been discharged from
his employment with Gold Dust in violation of the Americans with Disabilities Act
of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The district court, on Gold Dust’s
motion, dismissed the action pursuant to Fed. R. Civ. P. 41(b) for failure of Smith to
make full discovery. Smith appeals. We reverse and remand with instructions to the
district court to reinstate the action.

                                 I. BACKGROUND

       On July 12, 2005, Smith, pro se, filed a complaint in District Court for the
District of South Dakota alleging that Gold Dust terminated Smith’s employment in
violation of the ADA.

       The district court, on November 16, 2005, issued a scheduling order directing
that discovery shall terminate on March 1, 2006 and that the parties shall file all
motions, excluding motions in limine, by April 1, 2006. In a letter to the district court
and defense counsel dated January 5, 2006, Smith requested a thirty-day extension to
permit him to look for counsel. Smith also explained that he was experiencing health
problems related to, among other things, cardiac artery disease. The district court
granted Smith’s request and extended the discovery and motions deadlines to April
1, 2006 and May 1, 2006, respectively. In an effort to comply with the discovery
schedule, Smith informed the district court and defense counsel on January 30, 2006
that he intended to use, as “expert testimony”, Smith’s medical record and documents
relating thereto.

      On February 27, 2006, Smith informed both the court and defense counsel that
he was scheduled to undergo heart surgery which would, most likely, prevent Smith
from finding an attorney or complying with the discovery deadline. In light of
Smith’s medical problems, the parties filed a joint request for an extension of the
discovery and motions deadlines. On April 7, 2006, the district court granted the joint
motion and reset the discovery deadline for July 1, 2006 and the motions deadline for
August 1, 2006. In the eight months that followed, neither Smith nor Gold Dust
informed the court of any discovery problems.



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       On December 11, 2006, the district court issued an order setting a March 6,
2007 trial date. Shortly thereafter, on December 15, 2006, Gold Dust filed a motion
to dismiss Smith’s complaint pursuant to Fed. R. Civ. P. 41(b) for failure to comply
with the court’s discovery deadlines. Gold Dust alleged that Smith failed to: (1)
provide relevant disclosures; (2) adequately answer interrogatories; and (3) respond
to Gold Dust’s requests for production of documents. Gold Dust also asked the
district court to award attorneys’ fees. Alternatively, Gold Dust requested that the
court enter an order compelling Smith to comply with discovery. This was Gold
Dust’s first contact with the district court since the court’s April 7, 2006 order
extending the discovery and motions deadlines.

        Smith responded that he had found trial counsel willing, upon condition, to take
his case, and requested that the district court postpone the March 6, 2007 trial date
until the middle to late summer. Smith attached to his response a letter to Smith from
George C. Price (“Price”), a Colorado attorney. Price indicated that he would take
Smith’s case but would not be prepared to go to trial until mid-summer. Price also
indicated that he was not admitted to the Federal Bar in South Dakota and therefore
needed to obtain local counsel willing to sponsor his admission pro hac vice. Price
stated that his representation of Smith was contingent upon Smith obtaining a
continuance of the trial date and Price obtaining local counsel willing to sponsor
Price’s admission pro hac vice. Price had advised Smith to request a continuance of
the March trial date.

       In an order dated February 20, 2007, the district court denied Smith’s request
for a continuance, granted Gold Dust’s motion to dismiss Smith’s complaint, and
entered judgment for Gold Dust and against Smith, together with costs. While the
district court recognized Smith’s pro se status, the court stated that regardless, Smith
was “not permitted to refuse compliance with the plain wording of the court’s orders.”
The court concluded that Smith’s “contentious refusal to adhere to the orders of the
Court warrants dismissal.”

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        Smith filed a motion for reconsideration on March 2, 2007. Smith argued that
he attempted to complete discovery but had considerable difficulty retaining counsel
willing to represent him. In support of his motion for reconsideration, Smith attached
a letter from a South Dakota attorney noting that Smith briefly retained him to render
an opinion on the merits of his suit and to assist him in complying with discovery.
The letter indicated that while Smith may have failed to comply with discovery, this
noncompliance was not willful.

      The district court denied Smith’s motion for reconsideration noting that while
Smith’s noncompliance may not have been willful, Smith nevertheless knew that he
had not complied with discovery and did not request assistance in complying with the
discovery deadlines. This appeal followed.

                                  II. DISCUSSION

       A district court may, in its discretion, dismiss an action pursuant to Fed. R. Civ.
P. 41(b) if “the plaintiff fails to prosecute or to comply with [the Federal Rules] or a
court order.” We review the district court’s factual finding of willful or intentional
failure to prosecute or comply with court orders for clear error. Hunt v. City of
Minneapolis, 203 F.3d 524, 527 (8th Cir. 2000). This court reviews the district
court’s decision to dismiss an action pursuant to Rule 41(b) for abuse of discretion.
Good Stewardship Christian Ctr. v. Empire Bank, 341 F.3d 794, 797 (8th Cir. 2003).
When determining whether the district court abused its discretion in dismissing an
action, “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 v. The Curators of the Univ. of Mo., 135 F.3d
1216, 1219 (8th Cir. 1998) (internal quotations and citation omitted). We have
repeatedly stressed that the “sanction imposed by the district court must be
proportionate to the litigant’s transgression,” id. (emphasis added), and that

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“[d]ismissal with prejudice is an extreme sanction and should be used only in cases
of willful disobedience of a court order or continued or persistent failure to prosecute
a complaint,” Givens v. A.H. Robins Co., 751 F.2d 261, 263 (8th Cir. 1984).

      We conclude that the sanction of dismissal with prejudice under these
circumstances was disproportionate to Smith’s transgression. The district court
therefore abused its discretion in dismissing with prejudice Smith’s complaint.

        The record does not show that Smith intended to delay the proceedings by
failing to comply with discovery. Nor, does the record support the district court’s
characterization that Smith contentiously refused to comply with court orders. To
justify the extreme sanction of dismissal with prejudice, this court has required far
more egregious and willful conduct than presented here. See, e.g., Good Stewardship
Christian Ctr., 341 F.3d at 797-98 (holding dismissal with prejudice warranted when
the record showed that plaintiff’s conduct which included making several ex parte
statements in violation of a district court order, making numerous baseless motions
for sanctions against opposing counsel, failing to properly answer requests for
admissions, and obstructing discovery during depositions, was designed to delay
proceedings); Hunt, 203 F.3d at 527-28 (holding dismissal with prejudice warranted
when between the issuance of the pretrial order and the date trial was set to
commence, the litigant “engaged in at least six distinct violations of the court’s orders
or of the Federal Rules”); Rodgers, 135 F.3d at 1218 (holding dismissal with prejudice
warranted when the litigant failed to appear at two court ordered depositions,
disregarded the district court’s order to produce certain material documents, and
violated a court order prohibiting him from firing his fourth set of counsel).

      In this case, Smith was simply incapable of complying with the discovery
deadlines because of, among other things, a serious health problem which required
surgery. Furthermore, the record shows that throughout the discovery period Smith



                                          -5-
made sincere efforts to complete discovery, inform the court of his progress, and give
explanations for any delays.

       This is not a case where a litigant flagrantly disregarded or ignored any advance
warning from the district court that failure to comply with discovery deadlines would
result in dismissal with prejudice. The district court did not give any such warning
here. While the failure to give warning that a litigant is “skating on thin ice,” does
not, alone, compel reversal, we certainly encourage it as it would put a litigant,
especially a pro se litigant such as Smith, on notice that he risks irreversibly losing the
right to bring suit. See Rodgers, 135 F.3d at 1221. The district court’s failure to give
Smith any advance warning weighs against imposing the extreme sanction of
dismissal with prejudice. This is especially so in light of the fact that in the eight
months that passed between the district court’s April 7, 2006 order extending the
discovery and motions deadlines and Gold Dust’s motion to dismiss Smith’s
complaint, Gold Dust made no effort to inform the district court of Smith’s
noncompliance.

       When determining whether or not to dismiss a case with prejudice a district
court should first “consider whether any less-severe sanction could adequately remedy
the effect of the delay on the court and the prejudice to the opposing party.” Mann v.
Baumer, 108 F.3d 145, 147 (8th Cir. 1997). The record does not show that the district
court gave adequate consideration to a less-severe sanction. Indeed, Appellees
requested as an alternative to dismissing the action that the district court issue an order
compelling Smith to comply with discovery. By the time the district court considered
Gold Dust’s motion to dismiss, Smith had found counsel willing to take his case
contingent upon Smith obtaining a continuance of the trial date. In these
circumstances, the extreme sanction of dismissal of the action cannot be approved.

       While parties who do not comply with court orders may face sanctions, we
reiterate that “the punishment should fit the crime, and not every instance of failure

                                           -6-
to comply with an order of [the] court, however inexcusable, justifies total extinction
of a client’s cause of action.” Givens, 751 F.2d at 263. We conclude that the district
court abused its discretion in dismissing with prejudice Smith’s complaint.

                                 III. CONCLUSION

       We reverse the district court’s dismissal of this case and remand with
instructions that the district court reinstate the case for further proceedings consistent
with this opinion.
                         ______________________________




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