               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 00-40481
                          Summary Calendar
                       _____________________


KENNETH J. MAGNUSON,

                                               Plaintiff-Appellant,

                              versus

ELECTRONIC DATA SYSTEMS
CORPORATION; ET AL.,

                                                         Defendants

ELECTRONIC DATA SYSTEMS
CORPORATION,

                                              Defendant-Appellee.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Eastern District of Texas
                       USDC No. 4:99-CV-128
_________________________________________________________________
                             March 21, 2001

Before JOLLY, DAVIS, and STEWART, Circuit Judges.

PER CURIAM:*

     Kenneth J. Magnuson appeals the Rule 41(b) dismissal with

prejudice of his discrimination claims against Electronic Data

Systems(“EDS”).   Because we find that the district court did not




     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
abuse its discretion in dismissing Magnuson’s case after Magnuson

repeatedly failed to comply with the court’s orders, we affirm.

                                       I

     Magnuson filed his suit against EDS on April 1, 1999, in Texas

state court.     EDS removed the case to federal court on June 4,

1999.   On October 5, 1999, EDS served Magnuson, through his

attorney of record, with its first set of interrogatories and a

request for production. The record reveals that Magnuson’s counsel

was unable to obtain information from Magnuson needed to properly

respond to the requests.

     On October 27, 1999, Magnuson’s counsel filed a motion to

withdraw, supplemented on November 19, 1999, asserting that he and

Magnuson had “irreconcilable differences” regarding prosecution of

the case.    Counsel further informed the court that Magnuson had

verbally assaulted employees in his office after the claim had been

removed to federal court, and noted that he had tried several

times, unsuccessfully, to get information from Magnuson in order to

answer EDS’s interrogatories.

     In the meantime, Magnuson was busy filing motions with the

district court, including a November 9, 1999 motion to quash his

deposition and two pro se motions requesting an extension of

deadlines.       The   court    granted    the   motion    to    quash,   but

simultaneously    ordered      that   Magnuson   execute   and    furnish   a




                                       2
requested authorization for medical records before November 19,

1999.      After    receiving     no   response     to   its    written     discovery

requests and the ordered authorization for medical records, EDS

filed two separate motions to compel and requested sanctions on

November 22 and 23, 1999.

     On December 9, 1999, the district court held a hearing on all

pending motions.           The court found that Magnuson’s delays and

failure to respond to discovery requests and court orders were

caused by him, not his attorney, and imposed monetary sanctions of

$250 on Magnuson, to be paid by December 24, 1999.                   Thereafter, the

court allowed Magnuson’s counsel to withdraw, but ordered Magnuson

to retain new counsel, who was to file an appearance by January 14,

2000.      The     court   also   extended    the    deadline        for   Magnuson’s

discovery    responses      to    January    28,    2000,      and   gave   Magnuson

authorization to amend his pleadings.               In this hearing, the court

specifically warned Magnuson that it would “consider dismissing

this cause of action” if Magnuson failed to meet the court’s

extended deadlines.

     Magnuson continued to file motions following the December 9

hearing.    On December 16, he filed a motion for leave to proceed in

forma pauperis, seeking to be excused from paying the sanctions.

That same day he filed a motion for extension of time in which to

pay the sanctions.           On December 21, he filed a motion for a




                                         3
rehearing on all motions heard on December 9.           On January 3, 2000,

Magnuson filed another motion to reconsider all motions heard on

December 9.      The district court denied all of these motions in an

order dated January 19, 2000.1

     On      January   11,   2000,   after   Magnuson   failed   to   pay   the

sanctions, EDS filed a motion to dismiss the plaintiff’s claim with

prejudice.      EDS supplemented that motion on February 24, 2000,

asserting that Magnuson had failed to comply with the district

court’s order that he retain new counsel and had also failed to

respond to EDS’s discovery requests.2           On March 29, 2000, having

still not complied with the district court’s orders on discovery

and sanctions, Magnuson filed yet another motion for relief from

one or more of the court’s earlier orders.3



      1
       In its ruling, the district court specifically noted that
Magnuson failed to comply with the order that he obtain new counsel
before January 14 and did not demonstrate his inability to employ
such counsel. The court found that Magnuson presented no evidence
to support his claim that health problems prevented him from
complying with all court orders and discovery requests. The court
noted that Magnuson’s health had not prevented him from “argu[ing]
before the court in a vigorous and articulate manner” and filing
numerous motions during the time he could have been complying with
the court orders.
     2
      In the meantime, Magnuson had filed a motion to extend the
discovery deadlines and a motion for leave to amend on February 2,
2000.    These motions were denied on February 22 and 28,
respectively.
         3
       The precise nature of the relief Magnuson sought in this
motion is unclear.




                                       4
     On April 7, 2000, the district court granted EDS’ motion to

dismiss   with   prejudice   and   entered   a   final    judgment     against

Magnuson.

                                     II

     The relevant portion of Rule 41(b) states:


     For failure of the plaintiff to prosecute or to comply
     with these rules or any order of court, a defendant may
     move for dismissal of an action or of any claim against
     the defendant.    Unless the court in its order for
     dismissal otherwise specifies, a dismissal under this
     subdivision and any dismissal not provided for in this
     rule . . . operates as an adjudication upon the merits.

Fed. R. Civ. P. 41(b).

     We review an appeal of a dismissal with prejudice under Rule

41(b) for an abuse of discretion.          Long v. Simmons, 77 F.3d 878,

879 (5th Cir. 1996). However, Rule 41(b) dismissals with prejudice

will be affirmed only upon a showing of “a clear record of delay or

contumacious conduct by the plaintiff, and where lesser sanctions

would not serve the best interest of justice.”           Salinas v. Sun Oil

Co., 819 F.2d 105, 106 (5th Cir. 1987) (citation omitted).

     We cannot say that the district court abused its discretion in

dismissing Magnuson’s case. First, Magnuson continually refused to

comply    with   the   court’s   orders,   including     the   order   to   pay

sanctions, the order to sign the authorization for medical records,

and the order to comply with EDS’ discovery requests.            See Gray v.

Fidelity Acceptance Corp., 634 F.2d 226, 227 (5th Cir. 1981)




                                     5
(considering whether the “plaintiffs disobeyed court orders” in its

review of a Rule 41(b) dismissal).    Magnuson also failed to obtain

new counsel after the court granted him a reasonable period of time

to do so.4   We have found such a failure to be a relevant factor to

be considered by a court when ruling on a motion to dismiss.

Anthony v. Marion County General Hospital, 617 F.2d 1164, 1167 (5th

Cir. 1980).5

     Second, the record reveals that Magnuson himself was fully

aware of the court’s deadlines and orders, and we accept the

court’s finding that Magnuson, not his counsel, was responsible for

the delays and non-compliance with court orders.6    This court has

     4
     We are sensitive to the fact that Magnuson was acting pro se
from December 1999 until the entry of a final judgment in April
2000. However, Magnuson was given ample time to find new counsel,
and he failed to produce evidence as to why he could not obtain
counsel before January 14, 2000. See Anthony, 617 F.2d at 1169
(“We believe that even a non-lawyer should realize the peril to
[his] case, when [he] ignores the necessity to obtain new
counsel. . . . Even a non-lawyer should realize the need to
communicate either with the court or with opposing counsel.”).
     5
      Magnuson argues that the district court improperly dismissed
his claims because he was acting pro se and was unable to prosecute
his case on his own. However, the record reveals that this case
was not Magnuson’s first pro se experience in a court of law. In
fact, since 1992, Magnuson has represented himself in at least four
other   lawsuits   in   Denton   and   Tarrant   Counties,   Texas.
Incidentally, each of these claims were, at least in part,
dismissed for want of prosecution.
     6
     Given that the dismissal of Magnuson’s case was based on his
failure to comply with orders after his counsel withdrew, we cannot
accept Magnuson’s argument that his counsel is to blame for the
delays.




                                  6
considered the fault of the plaintiff in the delay a key factor in

reviewing a Rule 41(b) motion.    See, e.g., Veazey v. Young’s Yacht

Sale and Service, 644 F.2d 475, 478 (5th Cir. 1981) (“We subscribe

to the view that involvement of the litigant in the delay is a

material factor in weighing remedies”); Hildebrand v. Honeywell,

Inc., 622 F.2d 179, 181 (5th Cir. 1980).      Magnuson never produced

any evidence as to why he was prevented from complying with court

orders and discovery deadlines.7

     Finally,   the   district   court   resorted   to   dismissal   with

prejudice only after imposing lesser sanctions on Magnuson and

warning him that his claim would be dismissed if he continued to

ignore orders and deadlines.     See Simmons, 77 F.3d at 880 (noting

that dismissal is appropriate only if “the district court employed

lesser sanctions before dismissing the action.”). Indeed, Magnuson

failed to even comply with the lesser sanctions imposed by the

court.   Under these circumstances, we cannot say that the district

court abused its discretion when it dismissed Magnuson’s claim

after over six months of unexcused delay and noncompliance.

                                  III


    7
     Magnuson argues that the dismissal should be reversed because
his purported health problems, stemming in part from a car accident
in January 2000, prevented him from prosecuting his case. However,
Magnuson’s prolific filing of pro se motions from October 1999
through March 2000 belies his argument that he was unable to comply
with court orders and was unaware of deadlines.




                                   7
     In sum, we find that the district court did not abuse its

discretion in granting EDS’ motion for dismissal with prejudice

under Rule 41(b).   The judgment of the district court is

                                                  A F F I R M E D.




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