Appeal from (1) a judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, dismissing action for failure to comply with an order of the court regarding the prosecution of the action, and (2) an order denying a motion pursuant to Fed. R. Civ. P. 60(b) to vacate the judgment. Reversed and remanded. Judge MacMahon concurs in a separate opinion.
Before KAUFMAN and KEARSE, Circuit Judges, and MACMAHON, District Judge.*fn*
Plaintiff James L. Harding appeals from a final judgment of the United States District Court for the Southern District of New York, Charles L. Brieant, Jr., Judge, dismissing his complaint, filed pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. IV 1980), for failure to comply with an order of the court governing the prosecution of the action. On September 2, 1982, the court had allowed plaintiff until September 22, 1982, to file an amended complaint in the action. Harding thereafter sought and obtained an extension until September 27 to file the amended complaint. When he sought, on September 27, a further extension of three days, his motion was denied and his action was dismissed. Harding contends that the dismissal constituted an abuse of discretion. For the reasons below, we agree and reverse the judgment.
This action was commenced by Harding pro se on October 21, 1981. The complaint alleged that Harding had been employed by defendant Federal Reserve Bank of New York ("FRB") which had, in the terms and conditions of his employment, discriminated against Harding on the basis of his race, in violation of Title VII. In particular, Harding appears to have alleged that because of his race he had been denied promotion by FRB (FRB brief on appeal at 4), and that in retaliation for his complaints to the Equal Employment Opportunity Commission ("EEOC") of discriminatory treatment, FRB had fired him. In February 1982, FRB served a motion to dismiss on the ground, inter alia, that Harading had not obtained a "right to sue" letter from the EEOC with respect to his claim of discriminatory treatment. On March 11, 1982, Jacquelyn R. Bullock, Esq., entered an appearance on behalf of Harding. After a March 19 hearing on FRB's motion, the court adjourned the motion until June 21, and directed Harding to obtain a right to sue letter in the interim.
The EEOC sent Harding a right to sue letter on or about April 26, senidng a copy to FRB, and there ensued a series of procedural missteps. FRB, upon receiving its copy of the EEOC's letter, decided that its motion to dismiss had become moot, and on May 5 it served a notice that it would take Harding's deposition at 10:00 a.m. on June 1 at its offices. FRB did not, however, withdraw its motion to dismiss. On June 1, Bullock arrived at FRB's offices alone and announced that Harding would not appear, on the ground that a deposition was inappropriate in light of FRB's pending motion to dismiss.*fn1 FRB had received no prior indication that Harding would not appear to be deposed. It promptly moved pursuant to Fed. R. Civ. P. 37 for an award of costs and attorneys' fees, and an order directing Harding to appear for his deposition.
FRB's Rule 37 motion was returnable on June 14. Bullock however, did not appear in court to oppose the motion, apparently having misread the notice and believing this motion to be returnable on June 21, the return date of FRB's motion to dismiss. After Bullock was located and offered this explanation, the court adjourned the Rule 37 motion to June 21.
On June 21 both sides appeared before the court in connection with both outstanding motions. FRB withdrew its motion to dismiss the complaint and filed an answer to the complaint. As to the Rule 37 motion, the court ordered that it be withdrawn without prejudice and reprimanded both parties for their inability to conduct discovery without judicial intervention. The court directed Harding to appear for deposition on July 1, 1982.
Harding appeared for his deposition on July 1. He was deposed for a total of five days until, on July 27, FRB had concluded its questioning of him. On July 12, FRB served on Harding a request for the production of documents. Harding timely complied, producing a total of 269 pages of documents.
On July 27, Harding served notice of a motion to amend his complaint. A proposed amended complaint was attached to the motion, alleging, inter alia, that FRB had "discriminated against plaintiff, a black employee, with respect to terms, conditions, privileges, advantages and benefits of employment with defendant." By order dated September 2, 1982 ("September 2 Order"), the court ruled that the proposed amended complaint did not comply with Fed. R. Civ. P. 8, but that plaintiff should be given an opportunity, in the interests of justice, to file a compliant complaint:
In the interests of Justice, plaintiff's counsel may serve and file within twenty (20) days from the date hereof, an amended complaint which shall be simple, concise and direct, and shall comply with Rule 8, F.R.Civ.P.
By the terms of the September 2 Order, Harding's new complaint should have been filed on or before Wednesday, September 22. Plaintiff was not heard from, however, until Friday, September 24, when Bullock telephoned Judge Brieant's chambers to request an extension until Monday, September 27, to file the amended complaint. This ex parte request was granted. On September 27, Bullock filed a written application for another short extension, stating that she had not been able to prepare the new amended complaint because she had been engaged as a hearing examiner in Kings County Family Court for most of the period already allowed. She requested an additional three days, until September 30.
The court denied this application and dismissed the action. Its order, endorsed on the back of Bullock's application, ...