On June 17, 2016, in Roberts v. Ferman, the US Court of Appeals for the Third Circuit held that a district court's decision to dismiss the plaintiff-appellant's post-trial motion for a new trial was not an abuse of discretion because the appellant defied a court order to recreate the trial record, therefore failing to prosecute his own case ( (June 17, 2016)).

The appellant, Reginald Roberts, was a former employee of Montgomery County, Pennsylvania. Roberts sued the county and nearly a dozen county employees alleging retaliation and discrimination in violation of Title VII and his constitutional rights. Roberts's amended complaint contained five counts, two of which alleged violations of 42 U.S.C. § 1983 for allegedly protected speech.

The case was originally assigned to Judge Savage but the parties agreed on March 31, 2010 to refer the whole matter to a magistrate judge. In motion practice before both judges, the defendants successfully limited the claims that would proceed to trial. However, Roberts alleged bias on the part of the magistrate judge and moved to revoke his consent to adjudication by the magistrate, which was granted on January 4, 2012. The case was again before Judge Savage, who prepared the case for trial.

Following pretrial conferences and additional briefing regarding the county's potential liability, Judge Savage granted summary judgment in favor of the defendants, further limiting the remaining claims. The case proceeded to trial and the jury returned a verdict in favor of defendants on all remaining counts. Roberts filed a timely motion for a new trial or, alternatively, judgment notwithstanding the verdict. The case was also reassigned to Judge Quiñones after Roberts re-raised allegations of bias by Judge Savage. At this point, the court discovered that four of the six days of the trial transcript had been lost.

Despite repeated attempts, Roberts was unable to obtain the trial transcripts. To allow her to rule on Roberts's post-trial motion, Judge Quiñones ordered the parties to recreate the record in accordance with Federal Rule of Appellate Procedure (FRAP) 10(c). Roberts declined to comply with this order, alleging that the parties would not be able to agree on the contents of a recreated record, and so any attempt to do so would be futile.

Lacking a trial record with which to assess the merits of Roberts's post-trial motion, the court concluded that Roberts's failure to comply with FRAP 10(c) constituted a failure to prosecute. The court dismissed the motion and Roberts appealed.

The Third Circuit affirmed the district court's ruling, finding that a dismissal of Roberts's motion for failure to prosecute was well within the district court's discretion. The court cited its own rule that the power to dismiss for failure to prosecute rests in the discretion of the trial court, and is part of its "inherent authority to prevent undue delays…and to avoid congestion in its dockets" (Hewlett v. Davis, 844 F.2d 109, 114 (3d Cir. 1988)). Where a plaintiff's actions amount to the willful refusal to prosecute or blatant failure to comply with a court order, it is appropriate for a court to dismiss for failure to prosecute.

Here, Roberts refused to submit a proposed statement to defendants even ninth months after Judge Quiñones ordered Roberts to recreate a trial record to the best of his recollection. Roberts's response was an allegation that it would be futile because counsel for the parties agreed that neither side would accept the other's recreation of trial events, an allegation that defendants disputed. Additionally, FRAP 10(c) clearly places responsibility for creating an initial record on the appellant. Therefore, Roberts's refusal to comply with the court's order amounted to a willful refusal to move his own motion forward.