The Rules of Litigation Are Not a Buffet

The Fifth Circuit held that dismissal was unwarranted, and reversed. It primarily reached this conclusion based on the plain language of Rule 41(b), because that rule only allows a court to dismiss based on a violation of “these rules” or “a court order.” Local rules are not encompassed by the term “these rules,” which refers to the Federal Rules of Civil Procedure. Nor would a local rule requiring local counsel be akin to “a court order” because Fifth Circuit precedent had previously relied on the case-terminating consequences of a local rule itself to find that equivalency.

Even if the local rules qualified as a court order, however, the Fifth Circuit held that dismissal was unwarranted. Although the dismissal was nominally without prejudice, the short statute of limitations for Title VII claims would have effectively prohibited the plaintiff from refiling. The Fifth Circuit held that this severe sanction was for several reasons. The attorney, not the plaintiff himself, was responsible for the delay leading to dismissal. There was no prejudice to the defendants, because they had not appeared or filed responsive pleadings. The roughly six-week delay was insignificant in absolute terms. And the trial court had not considered lesser sanctions.

The Northern District of Texas’s local-counsel rule could be criticized as a cynical protectionist measure or praised as maintaining an experienced local bar. It certainly seems fair to ask what benefit could be obtained from requiring local counsel in a case involving an attorney barred in the district who lived less than 10 miles over its border. But like any other rule applying to litigation, the wisdom of the local-counsel rule is beside the point. Attorneys must follow them or face the consequences. And though the plaintiff escaped the most severe consequence of dismissal in this case, his attorney’s failure to heed the rule caused him to incur unnecessary delay and expense in having his case decided.

Joseph V. Schaeffer is an attorney with Spilman Thomas & Battle, PLLC, in Pittsburgh, Pennsylvania.

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