In Prime Finish, LLC v. ITW Deltar IPAC, the Sixth Circuit reversed and remanded a district court order dismissing the case based on counsel’s non-compliance with various scheduling orders.  After prior counsel withdrew, the district court set various deadlines for the appearance of new counsel and the filings of various pleadings.  Several of these deadlines were missed, ultimately prompting the district court to dismiss the case.  On appeal, the Sixth Circuit reversed, emphasizing the significance of the sanction of dismissal.  The primary factor that courts usually evaluate considering dismissal is whether there is a clear record of delay or contumacious conduct.  On this point, the Sixth Circuit found the record largely barren.  While it did note that the court had made several warnings about the possible dismissal for non-compliance, the lack of bad faith and lack of prejudice pointed in the other direction.  Equally important, the Court found that the district court did not consider whether other, lesser sanctions might have been more appropriate.

At the end of the day, the Court concluded:  “While the district court’s frustration is understandable, we cannot countenance its failure to consider whether a lesser sanction might properly balance the need for adherence to judicial orders with a desire to provide parties with a full and fair opportunity to have their cases decided on the merits.”  While the client escaped the ultimate penalty in this case, this decision certainly serves as a cautionary tale for litigants and underscores a simple rule: pay attention to orders by the district court!