                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-1015


MARIELLE KRONBERG (“Molly”),

                Plaintiff – Appellee,

           v.

LYNDON LAROUCHE; BARBARA BOYD; LYNDON LAROUCHE          POLITICAL
ACTION COMMITTEE; EIR NEWS SERVICE, INCORPORATED,

                Defendants – Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Anthony J. Trenga,
District Judge. (1:09-cv-00947-AJT-JFA)


Argued:   December 6, 2011                 Decided:   January 6, 2012


Before NIEMEYER, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jonathan Richard Mook, DIMUROGINSBERG, PC, Alexandria,
Virginia, for Appellants. James Stephen DelSordo, ARGUS LEGAL,
LLC, Manassas, Virginia, for Appellee.   ON BRIEF: Bernard J.
DiMuro, Nina J. Ginsberg, DIMUROGINSBERG, PC, Alexandria,
Virginia; Edward B. MacMahon, Jr., Middleburg, Virginia, for
Appellants.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      Marielle Kronberg, a former supporter of Lyndon LaRouche,

instituted this action under 42 U.S.C. § 1985 against LaRouche,

Barbara Boyd, the Lyndon LaRouche Political Action Committee,

and   the     EIR    News       Service     (collectively         “the     Defendants”),

alleging that they conspired to injure her in retaliation for

her testimony at LaRouche’s 1988 criminal trial.                           Following the

denial of the Defendants’ Rule 12(b)(6) motion to dismiss, the

case proceeded to discovery.                After Kronberg failed to meet her

discovery obligations, the magistrate judge ordered a show cause

hearing     and     eventually      entered        a    Report    and     Recommendation

recommending        that    the    case     be     dismissed      without     prejudice.

Following     a     de   novo     review,    the       district    court    adopted     the

Report      and     Recommendation        and      dismissed      the      case   without

prejudice.        On appeal, the Defendants argue that the district

court should have dismissed the case with prejudice or, in the

alternative, that the court should have granted its 12(b)(6)

motion.       For    the    following       reasons,      we     affirm    the    district

court’s sanctions order and decline to consider the denial of

the Rule 12(b)(6) motion.



                                            I.

      Kronberg       and    her    husband,      Kenneth,      were     members    of   the

National Caucus of Labor Committees (NCLC), an organization of

                                             2
LaRouche       supporters.         Kenneth      also     operated          PMR,     a   printing

company      for      LaRouche’s      materials.           In       April    2007,       Kenneth

committed suicide and, in the following months, LaRouche made

statements blaming Kronberg for her husband’s death and claiming

that Kronberg falsely testified against LaRouche at the 1988

trial.         In   response,        Kronberg      filed      an     action       against      the

Defendants       in    federal     court,     alleging         that       they     violated      42

U.S.C. § 1985 and committed libel per se under Virginia law.

      The       Defendants      moved    to    dismiss,         claiming         that     §   1985

creates     a    cause    of    action       for    litigants—not            witnesses         like

Kronberg—and that Kronberg’s complaint failed to state a viable

claim.      The district court denied that motion.

      The Defendants next moved to disqualify Kronberg’s counsel,

John Markham, who was the Assistant United States Attorney in

charge    of     prosecuting      LaRouche         in   1988.        The     district         court

granted      that      motion    and     disqualified              Markham       from     further

involvement in the case.              On July 7, 2010, the parties agreed to

a joint discovery plan.              At this point, Kronberg was represented

by   John    Bond,      who    had    been    serving         as    local     counsel.           As

relevant        here,     Kronberg        failed         to        meet      her        discovery

obligations, and Bond eventually moved to withdraw.                                 Kronberg’s

discovery        failures      ultimately       led     the     Defendants         to     file    a

Motion to Dismiss and/or for Appropriate Sanctions for Failure

to Comply with Discovery Orders.

                                              3
      The magistrate judge scheduled a hearing on the motion,

which neither Bond nor Kronberg attended.                      That action prompted

the magistrate judge to enter a show cause order “why this case

should not be dismissed for failure to prosecute and failure to

comply    with    previous    orders    of    this       court”   and    to    schedule

another hearing.          (J.A. 285).        Kronberg appeared at the show

cause hearing, but Bond was again absent.                      During this hearing,

Kronberg informed the court that Bond never told her about the

discovery issues or the earlier hearing dates.                     She also read a

statement        requesting     that         the     court        reconsider         the

disqualification order.

      On November 8, 2010, the magistrate judge entered a Report

and   Recommendation       recommending       that       the    case    be    dismissed

without prejudice.         The magistrate judge first noted that Bond

had finally contacted the court, informing it of significant

health problems and stating that he was simply unable to serve

as lead counsel in a case given these health issues.                           On that

basis, the magistrate judge recommended granting the motion to

withdraw.     Turning to the motion for sanctions, the magistrate

judge found that Federal Rules of Civil Procedure 16 and 37(b)

both authorized sanctions and that “sanctions are appropriate.”

(J.A. 293).       The magistrate judge then stated, however, that it

was “uncertain as to whether the responsibility for this bad

faith    conduct   lays    primarily    with       the    plaintiff     or    with   her

                                        4
attorney,” (J.A. 293) and that, because of this uncertainty, a

dismissal without prejudice was the “more appropriate sanction

in this case,” (J.A. 295).                In declining to dismiss the case

with       prejudice,      the   magistrate         judge   noted      that,    prior   to

Markham’s disqualification, Kronberg had “demonstrated herself

to be a capable and diligent litigant,” thus suggesting that the

failures to comply with the court orders might be more the fault

of her attorney.             (J.A. 296).           The magistrate judge conceded

that the record was unclear on exactly how blameworthy Kronberg

herself       was    and    that   she    undoubtedly          “bears    some    personal

responsibility” for the discovery abuses.                       (J.A. 297).      After a

de   novo     review,      the   district      court    adopted        the   magistrate’s

Report       and    Recommendation       and       dismissed     the    action    without

prejudice. 1

                                            II.

       On    appeal,       the   Defendants         contend    that     dismissal    with

prejudice was the appropriate sanction given Kronberg’s flouting

of the court’s discovery orders. 2                   We review a district court’s



       1
       Kronberg has since filed a new action in the Eastern
District of Virginia.
       2
        Because we affirm the district court’s sanctions order
dismissing the case without prejudice, and because Kronberg has
already filed a new action, we decline to consider the portion
of the appeal challenging the denial of the Rule 12(b)(6)
motion.



                                               5
sanctions order for abuse of discretion.              Anderson v. Found. for

Advancement, Educ. & Emp’t of Am. Indians, 155 F.3d 500, 504

(4th Cir. 1998).

      Two rules provide the basis for sanctions in this case.

Rule 16(f) provides, in relevant part, that “the court may issue

any just orders” if a “party or its attorney” either “fails to

appear at a scheduling or other pretrial conference” or “fails

to obey a scheduling or other pretrial order.”                 Fed. R. Civ. P.

16(f)(1).     Rule    37(b)    provides     for    sanctions    for   failure    to

comply with a court order and states that a court “may issue

further     just     orders”    which       “may    include,”     inter     alia,

“dismissing the action or proceeding in whole or in part.”                     Fed.

R. Civ. P. 37(b)(2)(A)(v).

      The Defendants rely primarily on Link v. Wabash R.R. Co.,

370 U.S. 626, 633-34 (1962), to argue that Kronberg should be

responsible for her counsel’s actions (or lack thereof).                        In

Link, the Supreme Court held that a district court did not abuse

its   discretion    in   dismissing     a   case    with   prejudice    when    the

attorney failed to appear at a pretrial conference.                     The Court

explained that a party cannot “avoid the consequences of the

acts or omissions of this freely selected agent.”                 Id.    Thus, “a

civil plaintiff may be deprived of his claim if he failed to see

to it that his lawyer acted with dispatch in the prosecution of

his lawsuit.”      Id. at 634 n.10.         We have recently reaffirmed the

                                        6
continuing vitality of Link.             Robinson v. Wix Filtration Corp.

LLC, 599 F.3d 403, 409-11 (4th Cir. 2010).

       The difficulty with the Defendants’ argument is that Link

(and our more recent precedent in Robinson) affirmed a district

court’s award of the harshest sanction.              Link does not create a

requirement that a case be dismissed with prejudice when counsel

flouts court rules.           In fact, the Defendants’ counsel conceded

at oral argument that he was unable to find any case in which a

circuit court reversed a district court’s order dismissing a

case without prejudice as a sanction and remanded for dismissal

with prejudice.

       Instead, the decision to implement sanctions is left to the

discretion of the trial court.                In this case, the magistrate

judge weighed the facts before it and ultimately concluded that—

because      Kronberg   had   been   a   diligent   litigant     when      she    had

counsel      of   choice—it    was   unfair    to   dismiss     the    case      with

prejudice.        This decision is consistent with the “strong policy

that cases be decided on the merits, and that dismissal without

deciding the merits is the most extreme sanction” that should

only    be    done   “with    restraint.”       United    States      v.   Shaffer

Equipment Co., 11 F.3d 450, 462 (4th Cir. 1993).                      Importantly,

the    magistrate     judge    correctly     identified   the    multi-factored

test for whether dismissal with prejudice was appropriate, see



                                         7
Anderson, 155 F.3d at 504; Shaffer, 11 F.3d at 462-63, 3 and

applied that test to Kronberg’s situation.    We cannot say the

court abused its discretion in declining to dismiss the case

with prejudice. 4



                              III.

     For the foregoing reasons, the district court’s order is

affirmed.

                                                        AFFIRMED




     3
       In Shaffer, we explained that a court should look to the
following factors in deciding whether to dismiss with prejudice:

     (1) the degree of the wrongdoer’s culpability; (2) the
     extent of the client’s blameworthiness if the wrongful
     conduct is committed by its attorney, recognizing that
     we seldom dismiss claims against blameless clients;
     (3) the prejudice to the judicial process and the
     administration of justice; (4) the prejudice to the
     victim; (5) the availability of other sanctions to
     rectify the wrong by punishing culpable persons,
     compensating harmed persons, and deterring similar
     conduct in the future; and (6) the public interest.

Shaffer, 11 F.3d at 462-63.
     4
       The Defendants briefly argue that the district court
should have inquired further into the possibility that Markham
continued   his    participation in   the    case   after   his
disqualification. We see no abuse of discretion in the district
court’s decision to decline further inquiry once it dismissed
the case without prejudice.



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