Absence of Local Counsel Not Grounds for Case Dismissal

• Pages: 22-22
• Date: 01 January 2023
• Author: Kelso L. Anderson
• Subject Matter: Civil Law

n attorney’s failure to comply with local rules is not

a considered rationale for a court’s sua sponte dis-

missal of the case pursuant to Federal Rule of Civil

Procedure 41(b), according to the U.S. Court of

Appeals for the Fifth Circuit. According to ABA

Litigation Section leaders, the ruling does not interfere with

the authority of district courts to enforce their local rules and

should prompt counsel to ensure compliance with local rules.

In Campbell v. Wilkinson, the plaintiff led an employ-

ment lawsuit against his employer in the U.S. District Court

for the Northern District of Texas, alleging violations of Title

VII of the Civil Rights Act of 1964. Soon after ling, the

Electronic Case Filing (ECF) system reminded the plaintiff’s

counsel that he had 14 days to comply with a local rule or

“risk the possible dismissal of this case without prejudice

or without further notice.” Local Rule 83.10(a) provides

that “local counsel is required in all cases where an attorney

appearing in a case does not reside or maintain the attorney’s

principal ofce in this district.”

The plaintiff’s counsel neither resided in nor maintained

an ofce in the Northern District of Texas; he decided that

the local rule was inapplicable to him since he practiced for

decades in the Northern District and resided less than 10

miles away in the Eastern District. About six weeks later,

the district court concluded that the plaintiff’s counsel was

not in compliance with the local rule and dismissed the

case without prejudice under Rule 41(b). The plaintiff’s

counsel led motions to reconsider the dismissal and to

proceed without local counsel. Because counsel waited 45

days between the ECF notication and the court’s dismissal

before ling the motions, the court also denied the motions.

The plaintiff appealed.

The Fifth Circuit reversed, noting that the letter of Rule

41(b) permits a defendant to dismiss an action or claim

against it if “the plaintiff fails to prosecute or to comply with

these rules or a court order.” The court then cited dicta for the

proposition that Rule 41(b) permits dismissal “not only on

motion of the defendant, but also on the court’s own motion.”

Since Rule 41(b) makes no reference to “local rules,” the

court then posited whether it is proper to apply Rule 41(b)

where a violation of a local rule is at issue. Answering in

the afrmative, the court distinguished Berry v. CIGNA/

RSI-CIGNA, in which that plaintiff’s counsel failed to com-

ply with a local rule that required a plaintiff to move for a

default judgment. In Berry, the plaintiff’s failure to move for

a default judgment was deemed a failure to prosecute and an

involuntary dismissal under Rule 41(b). Here, unlike Berry,

counsel’s failure to hire local counsel did not affect the timing

or resolution of the litigation, the court concluded.

Finally, the court concluded that only in cases in which

aggravating factors exist has it afrmed a district court’s dis-

missal with prejudice. Among those aggravating factors, the

court noted, are a record of delay by the actual plaintiff (not

counsel), prejudice to a defendant, or intentional delay by a

party. Here, the court concluded that none of the aggravat-

ing factors were present, and because the litigation would be

time-barred on remand, the district court’s dismissal without

prejudice was tantamount to a dismissal with prejudice.

“The decision does not unduly interfere with the district

court’s ability to enact and enforce its local rules,” afrms

Jason P. Kairalla, Miami, FL, cochair of the Litigation Section’s

Appellate Practice Committee. “Rather, it is a fairly straightfor-

ward application of Rule 41(b) and the court’s prior precedent,”

Kairalla observes. Jerry M. Cutler, New York, NY, cochair of

the Section’s Employment & Labor Relations Law Committee,

“do[es] not believe the appellate court undermined the abil-

ity of federal district courts to enact and enforce local rules.”

Instead, “dismissing a case is a severe sanction which may be

more appropriate in cases where the party against whom dis-

missal is sought is at fault,” Cutler adds.

Despite the plaintiff’s success on appeal, several Section

leaders emphasize that it remains a best practice to learn and

comply with local rules when litigating cases. “Knowing and

complying with the local rules is critical,” stresses Blanca

F. Young, San Francisco, CA, cochair of the Section’s Trial

Practice Committee. “Failure to comply with the local rules

can result in sanctions short of dismissal, it can alienate the

judge, and it can harm the client,” Young warns. “Local rule

compliance is important.Lawyers who ignore them do so at

their own—and their client’s—peril.In this case, complying

with the local rule by seeking leave to proceed without local

counsel would have been quick, simple, and inexpensive,”

Kairalla emphasizes.

Digital vers ions of all Civil Proc edure stories, i ncluding links to res ources and

authorities , are available at http://bit.ly/LN- civpro.

Absence of Local Counsel Not

Grounds for Case Dismissal

By Kelso L. Anders on, Litigation News Associat e Editor

22 | ABA LITIGATION SECTIO N

WINTER 202 3 • VOL. 48 NO. 2

22 | ABA LITIGATION SECTIO N

CIVIL PROCEDURE UPDATE

Published in Litigation News Volume 48, Number 2, Winter 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or

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