859 F. 2d 152 - Becton v. Boatmen's Bank of Memphis

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and THOMAS A. BALLANTINE, Jr., District Judge.*

Becton appeals the district court's judgment dismissing his employment discrimination action filed under Title VII of the Civil Rights Act of 1964, and moves for appointment of counsel. The appeal has been referred to a panel pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the parties's briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Becton claimed that his former employer refused to promote him and terminated his employment because he is black. The district court dismissed the action for Becton's failure to appear at the pretrial conference and for his failure to respond to the defendant's motion for summary judgment.

Upon consideration, we conclude that the district court properly dismissed the plaintiff's complaint despite not having made findings of fact regarding delay or contumacious conduct by the plaintiff. Fed.R.Civ.P. 16(f) states that if a party fails to appear at a pretrial conference, the judge, upon motion or her own initiative, may issue such orders with regard thereto as are just, specifically including any of the orders provided in Fed.R.Civ.P. 37(b)(2)(B), (C), or (D). Fed.R.Civ.P. 37(b)(2)(C) authorizes the court to dismiss an action for a violation of Rule 16(f). The court may take this action without making findings of fact as to contumacious conduct or chronic delay. In the Matter of Sanction of Baker, 744 F.2d 1438, 1440 (10th Cir.1984). The district court stated in its order that the plaintiff failed to appear at the scheduled pretrial conference and also failed to respond to the defendant's motion for summary judgment. It then ordered the case dismissed. Under the applicable rule, no more was needed.

Accordingly, we hereby affirm the decision of the district court. Rule 9(b)(5), Rules of the Sixth Circuit.