In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4193

Charles Kruger,

Plaintiff-Appellant,

v.

Kenneth S. Apfel,

Defendant-Appellee.


Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 98-C-144--Rudolph T. Randa, Judge.


Argued February 29, 2000--Decided May 10, 2000



  Before Bauer, Cudahy, and Eschbach, Circuit Judges.

  Per Curiam. In February 1998, Charles Kruger
filed suit in district court challenging the
Social Security Administration’s (SSA) final
decision denying his application for disability
benefits. He appeals the dismissal of his suit
under Federal Rule of Civil Procedure 41(b) for
failure to prosecute. Because the district court
abused its discretion by dismissing the case
without due warning to Kruger’s counsel, we
vacate and remand for further proceedings.

I.   BACKGROUND

  In 1992, Kruger, who served as an officer in
the United States Army for 20 years before poor
health forced him to resign, applied for social
security disability benefits. In 1994, SSA denied
his application, but, after Kruger sought
judicial review, the district court remanded his
case to SSA for further proceedings. In December
1997, SSA again denied his application, and
Kruger through counsel again filed suit in
district court for judicial review. The district
court referred the case to a magistrate judge for
an initial recommendation. The magistrate judge
set a briefing schedule that required Kruger to
file his brief by August 4, 1998. On August 3,
Kruger’s counsel requested an extension of the
deadline to September 11, which the magistrate
judge granted. Kruger’s counsel failed to file
the brief by the new deadline. Instead, on
October 13, Kruger’s counsel requested a second,
unopposed extension to October 16. She alleged
that an increased caseload due to the abrupt
departure of a staff person had prevented her
from completing the brief any sooner. The
magistrate judge denied counsel’s request for a
second extension of time, in part because counsel
had waited more than a month past the original
deadline to request additional time, and
recommended to the district judge that the case
be dismissed for failure to prosecute. The
magistrate judge issued his recommendation and
mailed a copy to both parties on October 15.

  On November 3, Kruger filed his objections to
the magistrate judge’s recommendation. Because
the objections were not timely, the district
court refused to consider them and on November
30, 1998 adopted the magistrate judge’s
recommendation without review. On December 14
Kruger filed a notice of appeal and a motion to
amend or alter the judgment. In August 1999, the
district court denied Kruger’s motion, and this
appeal followed.

II.   DISCUSSION

  We review dismissal as a sanction for failure
to prosecute for an abuse of discretion. Williams
v. Chicago Bd. of Educ., 155 F.3d 853, 857 (7th
Cir. 1998). Although abuse of discretion is a
deferential standard, it is, nonetheless, a
meaningful one. See Dunphy v. McKee, 134 F.3d
1297, 1300 (7th Cir. 1998). We will find an abuse
of discretion where the district court commits an
error of law, Khan v. Gallitano, 180 F.3d 829,
837 (7th Cir. 1999), or fails to consider an
essential factor, see Robyns v. Reliance Standard
Life Insurance Co., 130 F.3d 1231, 1236 (7th Cir.
1997).


  A. Failure to Review Magistrate’s
Recommendation

  Kruger’s counsel filed objections to the
magistrate judge’s recommendation, admitting that
she should have requested a second extension of
time as soon as she realized she would not meet
the deadline, but contending that the sanction of
dismissal was too harsh. Despite the fact that in
Lerro v. Quaker Oats Co., 84 F.3d 239, 241-42
(7th Cir. 1996), we clearly set out the method
for calculating the date Kruger’s objections to
the magistrate judge’s recommendation were due,
both parties and the district court failed to use
the Lerro method. In this case, the magistrate
judge mailed his recommendation to the parties on
October 15. Under Rule 72, a party has 10 days
after service to file objections. Lerro, 84 F.3d
at 241-42. Rule 6(a) excludes Saturdays, Sundays
and legal holidays from the 10-day count. Id. at
242. Rule 72 also requires a magistrate judge to
serve his recommendations on the parties, and,
because in this case the magistrate judge did so
by mail, Kruger had an additional three calendar
days to file his objections as provided in Rule
6(e). Id. Here, because there were two weekends
in the relevant 10-day period, 10 days plus three
days turned into 17 calendar days. Id. In
addition, because the 17th day fell on a Sunday,
Rule 6(a) permitted Kruger to file his objections
the next day on November 2. Id. Thus, Kruger
missed the deadline by one day, filing his
objections on November 3.

  The district court recognized that Kruger’s
objections had merit, but concluded that, because
they were not timely filed, it did not have to
consider them or review the magistrate judge’s
recommendation before adopting it. But, as Kruger
points out, the 10-day deadline is not
jurisdictional; thus, the district court was not
barred from considering the late objections. See
Hunger v. Leiniger, 15 F.3d 664, 668 (7th Cir.
1994). In reaching its decision, the district
court overlooked the fact that we declined "to
extend our rule barring appeal when objections to
the magistrate judge’s recommendation are not
filed with the district judge to a case in which
the filing was not egregiously late and caused
not even the slightest prejudice to the
appellees." Hunger, 15 F.3d at 668. In Hunger we
concluded that objections filed three weeks after
the magistrate issued his recommendation were not
egregiously late. By comparison, Kruger filed his
objections only a day late. Moreover, the SSA
does not assert that it was prejudiced by
Kruger’s late filing.

  Under Hunger, the district court should have
considered Kruger’s objections. This would have
obligated the district judge to review de novo
anything Kruger objected to in the magistrate
judge’s recommendation. Johnson v. Zema Sys.
Corp., 170 F.3d 734, 739 (7th Cir. 1999). But
even without considering the objections, the
district judge should have reviewed the
magistrate judge’s recommendation for clear
error. Id. Under either the de novo or clear
error standard of review, the district court
should have rejected the recommendation because,
as we will explain, the district court did not
give Kruger’s counsel the requisite warning
before dismissing his case for failure to
prosecute.


  B.   Failure to Warn Before Dismissal
  Kruger argues that the district court abused
its discretion in dismissing his case because his
counsel was not given a prior warning as required
by Ball v. City of Chicago, 2 F.3d 752 (7th Cir.
1993). We stated in Ball, "the judge should not
dismiss a case [for failure to prosecute] without
due warning to the plaintiff’s counsel. . . .
[T]here should be an explicit warning in every
case." 2 F.3d at 755. Here, the district court
abused its discretion because it did not give
Kruger’s counsel the requisite warning.

  SSA counters that no such warning is required
and cites Johnson v. Kamminga, 34 F.3d 466, 468
(7th Cir. 1994), as support. But Johnson is
distinguishable and should be confined to its
facts. In Johnson, the district court dismissed
the case when, after numerous other delays
largely caused by the plaintiff’s dilatory
conduct, the plaintiff failed to appear on the
first day of trial and lied to the court about
the reason for his absence. 34 F.3d at 467-68. We
have repeatedly stated that "[d]ismissal for
failure to prosecute is an extraordinarily harsh
sanction" that should be used "’only in extreme
situations, when there is a clear record of delay
or contumacious conduct, or when other less
drastic sanctions have proven unavailable.’"
Dunphy, 134 F.3d at 1299 (quoting In re Bluestein
& Co., 68 F.3d 1022, 1025 (7th Cir. 1995)).
Moreover, before imposing the ultimate sanction
of dismissal, it is appropriate for a district
court to "consider the egregiousness of the
conduct in question in relation to all aspects of
the judicial process." Barnhill v. United States,
11 F.3d 1360, 1367-68 (7th Cir. 1993). In
addition, a district court should "take full and
careful account of the frequency and magnitude of
the plaintiff’s failures to comply with deadlines
for the prosecution of the suit." Ball, 2 F.3d at
759-60. Here, the magistrate judge recommended
dismissing Kruger’s suit because counsel was 35
days late filing a brief. One missed deadline is
not a pattern of dilatory conduct, nor does the
delay here seem of much consequence in this
lawsuit. We have upheld dismissal as an
appropriate sanction when there has been a
history of delay or disregard for the district
court’s orders such as in Johnson where the
district court dismissed after the plaintiff
failed to appear on the first day of his trial,
culminating seven years of delay due to the
plaintiff’s inaction. 34 F.3d at 468. Unlike the
conduct in Johnson, Kruger’s one missed deadline
fails to rise to the level of long-standing or
contumacious conduct warranting dismissal.

  SSA also contends that, assuming a pre-dismissal
warning is required, Kruger received it when the
magistrate judge recommended that his case be
dismissed for failure to prosecute. We are not
persuaded by this argument. A magistrate judge’s
recommendation that a case should be dismissed
for failure to prosecute is not the sort of
explicit warning contemplated by Ball, 2 F.3d at
755.

III.   CONCLUSION

  Because the district court abused its discretion
in dismissing Kruger’s case without giving his
counsel the pre-dismissal warning Ball requires,
we VACATE and REMAND for further proceedings.
