23 Fair Empl.prac.cas. 1528,23 Empl. Prac. Dec. P 31,116mrs. Althea Anthony, Plaintiff-appellant, v. Marion County General Hospital, Defendant-appellee, 617 F.2d 1164 (5th Cir. 1980)

Mrs. Anthony appeals the dismissal with prejudice of the action below as well as the award of attorney's fees to the defendant hospital. We affirm the dismissal, but vacate the award of attorney's fees and remand.

On February 8, 1979, Mrs. Anthony filed a two count suit under Title VII of the 1964 Civil Rights Act and 42 U.S.C.A. § 1981 on behalf of herself and on behalf of all others similarly situated against the Marion County General Hospital, alleging racial discrimination. The complaint was signed by attorney Edward B. Moyo.

April 6, Motion to Dismiss Title VII and Notice of Deposition. On April 6, 1979, after receiving an extension of time to respond to the complaint, the hospital filed its answer and affirmative defenses. At the same time, the hospital filed: (1) a motion to dismiss the Title VII aspects of the complaint due to Mrs. Anthony's failure to satisfy a jurisdictional prerequisite to suit under Title VII, i. e., receipt of a "right-to-sue letter"; and (2) a notice of Mrs. Anthony's deposition. The motion to dismiss was noticed for hearing before the district court on April 13, 1979, and the notice of deposition specified April 24, 1979, for Mrs. Anthony's deposition.

April 12, Request for Continuance of Hearing. On April 12, 1979, Mrs. Anthony's attorney, Mr. Moyo, telephoned counsel for the hospital and advised that he (Moyo) was planning to file a motion to withdraw as Mrs. Anthony's counsel of record. Moyo requested that the hospital refrain from calling up its motion to dismiss set for hearing the following morning. Counsel for the hospital agreed. The record, however, reflects that attorney Moyo never filed such a motion of withdrawal.

April 23, Request for Continuance of Deposition. On April 23, 1979, Mrs. Anthony directly contacted counsel for the hospital requesting time to secure substitute counsel and requesting that her deposition scheduled for the next morning be rescheduled. Counsel stated it would postpone all actions on behalf of the hospital for a period of fifteen days.

June 5, Renotice of Hearing and for Deposition. Thereafter, on June 5, 1979, forty-two days after Mrs. Anthony had contacted the hospital's counsel and without any further contact from Mrs. Anthony, the hospital: (1) renoticed Mrs. Anthony's deposition; (2) filed a motion for determination of class action certification; and (3) renoticed its motion to dismiss the Title VII allegations. The motions were set for hearing before the district court on June 15, 1979, and the deposition was set for June 26, 1979. Each of these documents was mailed both to attorney Moyo and to Mrs. Anthony by United States mail, certified mail, return receipt requested.¹  The documents were received by attorney Moyo's office, but the record indicates the documents mailed to the appellant were returned to the hospital's counsel on June 26 marked "unclaimed," and indicating attempted deliveries on June 5, June 10, and June 20.

Failure to Appear at June 15 Hearing and at June 26 Deposition. Neither Mrs. Anthony nor her attorney appeared at the hearing on June 15, 1979. Nor did she appear for her deposition on June 26, 1979. On June 19, 1979, the district court entered its findings of fact and conclusions of law dismissing the Title VII aspects of the complaint without prejudice and denying class certification.

Motion to Dismiss § 1981 Claim July 20 and July 25 Notice. On July 20, 1979, the hospital filed a motion to dismiss and for attorney's fees. Again, the motion and notice of motion, together with a copy of the court's previous dismissal of her Title VII action, were mailed to both Mrs. Anthony and her attorney of record via certified mail, return receipt requested. The motion was originally noticed for hearing on July 27, 1979. The hearing was later rescheduled for August 17, 1979, and notice thereof was mailed to Mrs. Anthony and her attorney of record on July 25, 1979, certified mail, return receipt requested. There is no return receipt of these notices in the record nor any indication they were returned unclaimed.

Failure to Appear at Hearing. Neither Mrs. Anthony nor her attorney appeared at the August 17, 1979, hearing on the hospital's motion to dismiss and for attorney's fees.

As set forth in the findings of fact and conclusions of law dated August 17, 1979, the district court dismissed the action with prejudice, pursuant to Rule 37(d) and Rule 41(b), Fed. R. Civ. P., providing respectively for dismissal for failure to appear for deposition and for failure to prosecute.²  Finding that Mrs. Anthony's failure to prosecute was frivolous and vexatious, the district court awarded the hospital attorney's fees pursuant to § 706(k) of Title VII, 42 U.S.C.A. § 2000e-5(k), and 42 U.S.C.A. § 1988.

Judgment mailed September 7, 1979. On September 7, 1979, a copy of the bill of costs reflecting the judgment was mailed to Mrs. Anthony. Shortly thereafter, notice of entry of appearance of Robert L. Gibbs, Esquire, was filed on September 19, 1979, together with the notice of this appeal. No motion for relief from judgment pursuant to Rule 60, Fed. R. Civ. P., ever has been filed. On September 17, 1979, Mrs. Anthony, represented by her new counsel, filed another action under Title VII against the hospital.

Mrs. Anthony contends that the district court abused its discretion in dismissing her cause of action with prejudice.³ 

Rule 41(b) provides that a case may be dismissed for failure to prosecute. Not only may a district court dismiss for want of prosecution upon motion of a defendant, but it may also sua sponte dismiss an action whenever necessary to "achieve the orderly and expeditious disposition of cases." Link v. Wabash Railroad Co., 370 U.S. 626, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962); Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241 (5th Cir. 1980); Lopez v. Aransas County Independent School District, 570 F.2d 541 (5th Cir. 1978).

Dismissal with prejudice, however, is an extreme sanction which is warranted only where "a clear record of delay or contumacious conduct by the plaintiff" exists, Gonzalez, supra, 610 F.2d 241 (5th Cir. 1980); Lopez, supra, 570 F.2d 541; Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382 (5th Cir. 1978); Ramsay v. Bailey, 531 F.2d 706 (5th Cir. 1976), cert. denied, 429 U.S. 1107, 97 S. Ct. 1139, 51 L. Ed. 2d 557 (1977); E. F. Hutton v. Moffatt, 460 F.2d 284 (5th Cir. 1972). On appeal, this court must confine itself to the determination of whether the district court abused its discretion. National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 96 S. Ct. 2778, 49 L. Ed. 2d 747 (1976); Gonzalez, supra, 610 F.2d 241; Jones, supra, 602 F.2d 94; and Lopez, supra, 570 F.2d 541. Applying this standard for review, we conclude that the district court did not abuse its discretion in dismissing Mrs. Anthony's action.

It is clear that Mrs. Anthony understood that she needed to obtain new counsel. On the day before her first scheduled deposition, Mrs. Anthony obtained a fifteen day delay in order that she could find a new attorney. Despite this understanding between Mrs. Anthony and the hospital's counsel, Mrs. Anthony failed to obtain new representation until after the final judgment of the district court in this case.

After being alerted to the possibility of a change in counsel for Mrs. Anthony, the hospital cautiously mailed every notice thereafter both to Mrs. Anthony's original attorney, who remained attorney of record, and to Mrs. Anthony herself.⁴  Despite the fact that notices were thereafter mailed to Mrs. Anthony herself, she failed to respond to the June 5 notice, failed to appear at the June 15 hearing, and failed to appear at the June 26 deposition. Although her Title VII claim had already been dismissed because of her failure to appear at the June 15 hearing, she, nevertheless, failed to respond to the two notices, one on July 20 and a second on July 25, of the hearing concerning the dismissal of her remaining § 1981 claim, and failed to appear at that hearing on August 17.

She has made no attempt to explain, either to the district court or to this court, her failure to prosecute. She does argue that the June 5 notice was returned "unclaimed", but she does not assert that she was in fact ignorant of the June 15 hearing and the June 26 deposition, or of the attempts by the post office to deliver the notice on June 5, June 10, and June 20.⁵  Mrs. Anthony does not assert that she never received the two July notices of the August hearing or that she was in any way ignorant of these notices.⁶  Should Mrs. Anthony have asserted ignorance of these various notices, she would properly have been called upon to answer the obvious question as to why she did receive the one notice which imposed a financial burden upon her, i. e., the judgment assessing attorney's fees which was mailed to her on September 7 and to which she responded through a new attorney on September 19, but had not received the several notices in June and July.

Although we recognize that dismissal with prejudice is an extreme sanction, other cases in this circuit have upheld a district court's dismissal with prejudice for less reason than appears here. In Bonaventure, supra, 593 F.2d 625, the plaintiff failed to appear for his first scheduled deposition. When the deposition was rescheduled, the plaintiff filed a motion for a protective order. The deposition was then rescheduled, and the plaintiff again moved for a protective order. After denying the plaintiff's motions, the district judge ordered him to appear for a deposition. The plaintiff failed to appear for this deposition, contending that his lack of money prevented him from traveling to the site of the deposition. The district court then dismissed his suit with prejudice pursuant to Fed. R. Civ. P. 37(b).⁷  This Court in Bonaventure sustained dismissal with prejudice on the basis of the plaintiff's failure to appear at the two depositions. Here, Mrs. Anthony failed to appear at two hearings and a deposition.

In Lopez, supra, 570 F.2d 541, the plaintiffs' attorney stated at a docket call that he was ready for trial. The trial court ordered the docket call be continued, and at a second docket call, a week later, neither the plaintiffs nor their attorney appeared. The trial court thereupon dismissed the plaintiffs' suit for failure to prosecute. Later that same day, the plaintiffs' attorney moved to reinstate the suit. The trial court conditionally reinstated the cause and set it for trial four days later. When the trial date arrived, the plaintiffs' attorney announced not ready and made an oral motion for a continuance, asserting that one plaintiff was in school in another state and would not be able to attend trial. The trial court denied the plaintiffs' oral motion for continuance and ordered the cause to proceed to trial. The plaintiffs' attorney refused to call any witnesses even though the absent plaintiff had filed a deposition and ten defense witnesses were present. Trial court dismissed the suit with prejudice, and this court affirmed. We believe that the culpability of Mrs. Anthony in this case is comparable to that of the plaintiffs and their attorney in Lopez.⁸ 

We are also sensitive to the fact that Mrs. Anthony may have been acting without the benefit of counsel from April until judgment was entered in August. However, Mrs. Anthony knew she had to obtain new counsel within fifteen days from April 23. We believe that even a non-lawyer should realize the peril to her case, when she ignores the necessity to obtain new counsel, ignores numerous notices, and fails to attend hearings and depositions. Even a non-lawyer should realize the need to communicate either with the court or with opposing counsel. Mrs. Anthony did neither, and offers no explanation for having failed to do so. Although we recognize that dismissal with prejudice is an extreme sanction, we believe there is a clear record of delay in this case, and we cannot conclude that the district court abused its discretion in dismissing this case.

Mrs. Anthony gives two arguments as to why attorney's fees should not be awarded to the hospital despite the dismissal of her cause of action with prejudice.

First, she contends that the hospital is not a "prevailing party" as that term is used in both 42 U.S.C.A. § 1988 and 42 U.S.C.A. § 2000e-5(k).⁹  Although there has not been an adjudication on the merits in the sense of a weighing of facts, there remains the fact that a dismissal with prejudice is deemed an adjudication on the merits for the purposes of res judicata. As such, the hospital has clearly prevailed in this litigation.

Second, Mrs. Anthony argues that even if the hospital is the "prevailing party", the conditions of Christiansburg Garment Co. v. E. E. O. C., 434 U.S. 412, 98 S. Ct. 694, 54 L. Ed. 2d 648 (1979), specifying the criteria for awarding attorney's fees to defendants pursuant to 42 U.S.C.A. § 2000e-5(k), have not been met.¹⁰  Christiansburg makes clear that pursuant to 42 U.S.C.A. § 2000e-5(k), even though there is no subjective bad faith on the part of the plaintiff, the defendant may obtain attorney's fees when the plaintiff's action is found to be "frivolous, unreasonable, or without foundation." 434 U.S. at 421, 98 S. Ct. at 700.¹¹  In addition, Christiansburg makes clear that the American common-law rule remains valid so that a defendant may obtain attorney's fees also when the plaintiff has acted in bad faith.¹² 

Solely, on the basis of Mrs. Anthony's failure to prosecute, the court below found that her claim was vexatious and frivolous, and thus within the criteria of Christiansburg. We disagree. We do not believe that the mere failure to prosecute, without more, establishes as a matter of law that a claim is either frivolous or vexatious. There is absolutely no evidence in the record concerning the merits of Mrs. Anthony's claim. It may or may not be frivolous. While Mrs. Anthony's unreasonable delay and inaction is certainly a factor to be considered, it does not, by itself, constitute vexatiousness or harassment. Our conclusion in this regard is supported by Lopez, supra, 570 F.2d 541. There, plaintiff's action was dismissed for failure to prosecute and this court remanded for a determination in light of Christiansburg as to whether attorney's fees should be awarded. If failure to prosecute alone were sufficient to establish vexatiousness, then a remand would not have been necessary.

Accordingly, we vacate the award of attorney's fees, and remand for further proceedings on that issue.

Although we have remanded for a determination of whether attorney's fees are appropriate, we believe it will be helpful to add a few words as to the manner of calculating the fees should the court find that fees are warranted. In support of its request for attorney's fees, the hospital submitted an affidavit of its counsel as well as a copy of the counsel's bill submitted to the hospital. The hospital's counsel calculated its fees at a rate of $75 per hour for attorney's time and $50, $40 and $35 per hour for non-attorney's time out of court. Nowhere in the record is there a breakdown of the number of hours devoted to each aspect of the case. The district court, merely stating it had reviewed all the evidence, awarded the hospital $4,947.62, the amount requested.

While the determination of reasonable attorney's fees is left to the sound discretion of the court, the court must articulate reasons for its award in order that we may have a basis to review that award. Gay v. Board of Trustees of San Jacinto College, 608 F.2d 127 (5th Cir. 1979); Davis v. Fletcher, 598 F.2d 469 (5th Cir. 1979). The court's reasoning as to the appropriate amount should be made in light of the guidelines specified in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). A computation of reasonable fees solely on the basis of a hours-times-dollars formula does not satisfy the court's responsibility. Davis, supra, 598 F.2d 469; Miller v. Mackey International, Inc., 515 F.2d 241 (5th Cir. 1975); Weeks v. Southern Bell Telephone & Telegraph Co., 467 F.2d 95 (5th Cir. 1972).

AFFIRMED IN PART, VACATED IN PART AND REMANDED.