     Case: 17-10130      Document: 00514073608         Page: 1    Date Filed: 07/14/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals

                                    No. 17-10130
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                             July 14, 2017
                                                                              Lyle W. Cayce
MARY CHERRY,                                                                       Clerk


               Plaintiff - Appellant

v.

KROGER TEXAS, L.P.,

               Defendant - Appellee




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-CV-972


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Mary Cherry appeals the district court’s sua sponte
dismissal of her complaint pursuant to Federal Rule of Civil Procedure 41(b)
for failure to comply with two court orders. Because the district court abused
its discretion in dismissing this suit, we VACATE and REMAND for further
proceedings.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 17-10130
       A district court may dismiss an action sua sponte for failure to prosecute
or to obey a court order. Fed. R. Civ. P. 41(b); McCullough v. Lynaugh, 835
F.2d 1126, 1127 (5th Cir. 1988) (per curiam). We generally review a district
court’s sua sponte dismissal under Rule 41(b) for an abuse of discretion.
Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (per curiam). But when,
as here, the dismissal was with prejudice, 1 we apply a heightened standard of
review because “[d]ismissal with prejudice . . . is an extreme sanction that
deprives a litigant of the opportunity to pursue his claim.”                 Gonzalez v.
Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980). We will affirm
a dismissal with prejudice only if (1) there is a clear record of delay or
contumacious conduct by the plaintiff, and (2) the interests of justice would not
be better served by a lesser sanction. Coleman, 745 F.3d at 766. Affirmance
also usually requires the existence of “at least one of three aggravating factors”:
(1) delay caused by the plaintiff (not counsel), (2) “delay caused by intentional
conduct,” or (3) “actual prejudice to the defendant.” Berry v. CIGNA/RSI–
CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
       Here, the district court’s sua sponte dismissal of the complaint was based
on Cherry’s failure to comply with two court orders. First, after the case was
removed on October 20, 2016, the district court issued a November 22 order
instructing Cherry, who was and remains represented by counsel, to file an
amended complaint that complied with the Federal Rules of Civil Procedure
(as well as all applicable local rules) by December 7. Second, after Cherry
failed to meet this deadline, the district court issued another order on
December 9 instructing Cherry to file a written response by December 13
showing cause for her failure to comply with the first order. Cherry also failed


       1The district court’s order did not specify whether the dismissal was with prejudice,
but we treat such dismissals as a dismissal with prejudice. Memon v. Allied Domecq QSR,
385 F.3d 871, 874 n.6 (5th Cir. 2004) (per curiam).
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                                  No. 17-10130
to comply with this second order. Both of the district court’s orders warned
that failure to comply with the order “may result in the imposition of sanctions
up to, and including, dismissal.” On December 14, the district court entered
an order dismissing Cherry’s complaint, after concluding that “no lesser
sanction . . . is warranted.”
      On January 5, 2017, Cherry moved for reconsideration and for a new
trial, attaching to her motion an affidavit from her counsel. The affidavit
explained that Cherry’s failure to comply with the district court’s two orders
was due to the fact that, after removal, “notifications from the [district] [c]ourt
were not properly routed as needed for filings to be downloaded and for
deadlines to be properly docketed” and, as a result, counsel did not see the
orders until the complaint had already been dismissed.          Cherry’s counsel
further stated that his error “was not intentional or willful” nor was it
“motivated by bad faith or a desire to delay the case or a desire to harm,
prejudice or surprise Defendant”; he harbored “no desire or intent to disregard
the Court’s orders.” Finally, he stated that Cherry was unaware of the district
court’s orders and no error was attributable to her.
      That same day, the district court denied Cherry’s motion for
reconsideration. The district court concluded that Cherry had failed to offer
any “rational explanation . . . for why counsel received notice of the dismissal
but was unaware of the prior orders.” The district court posited that Cherry’s
counsel had indeed received the orders and “he either chose not to read them
or chose to ignore them if he did read them or to comply with his client’s
instructions to do nothing.” And the district court reaffirmed its conclusion
that no lesser sanction was appropriate because Cherry “had ignored two
orders and there was no reason to believe that she would respond to any
others.” Cherry timely appeals.


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                                 No. 17-10130
      Based on this record, we cannot say that these facts meet the high bar
required to affirm a dismissal with prejudice under Rule 41(b) because there is
no clear record of delay or contumacious conduct by Cherry. The dismissal
with prejudice was based on Cherry’s failure to comply with two district court
orders, but we have repeatedly emphasized that a plaintiff's failure to comply
with “a few court orders” does not meet this standard. Berry, 975 F.2d at 1191
n.6 (citing cases). In addition, based on the short period of time—less than two
months—between removal of Cherry’s complaint and its dismissal, we cannot
say Cherry had a clear record of delay.         Delay generally only warrants
dismissal with prejudice if it is “longer than just a few months” and is
“characterized by ‘significant periods of total inactivity.’” Millan v. USAA Gen.
Indem. Co., 546 F.3d 321, 326–27 (5th Cir. 2008) (quoting McNeal v. Papasan,
842 F.2d 787, 791 (5th Cir. 1988)). In addition, nothing in the record indicates
that Cherry’s noncompliance was due to anything other than, at worst, mere
negligence, a level of culpability that does not warrant dismissal with
prejudice. Coleman, 745 F.3d at 767; Millan, 546 F.3d at 327. To the extent
the district court found otherwise, this was clear error. This conclusion is
bolstered by the fact that Cherry’s counsel’s affidavit indicated that he took
full responsibility for the error and evinced an intent to comply with all future
court orders. Finally, we note that none of the aggravating factors that we
generally require for affirmance of dismissal with prejudice under Rule 41(b)
are present here, nor did the district court discuss any of them.
      Because the record is devoid of any clear record of delay or contumacious
conduct by Cherry, the district court abused its discretion in dismissing
Cherry’s complaint with prejudice. We VACATE the judgment of the district
court and REMAND the case for further proceedings.




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