UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PAUL JOSEPH DUGGAN,
Plaintiff-Appellant,

v.                                                                    No. 95-2242

WAYNE M. EVERD,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
John R. Hargrove, Senior District Judge.
(CA-93-2740-HAR)

Submitted: November 21, 1995

Decided: April 1, 1996

Before MURNAGHAN, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Paul Joseph Duggan, Appellant Pro Se. Henry Richard Duden, III,
Annapolis, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Paul Joseph Duggan appeals from a district court order imposing
sanctions against him and denying his Fed. R. Civ. P. 60(b) motion
for reconsideration of an order dismissing his complaint for failure to
respond to a show-cause order. We affirm the order with respect to
the denial of reconsideration. We vacate the order, however, with
regard to the imposition of sanctions and remand the matter for fur-
ther proceedings.

Duggan filed this diversity action against Defendant Everd for
malicious prosecution. Duggan, however, failed to respond to a dis-
trict court order requiring him to show how he met the amount-in-
controversy requirement of 28 U.S.C. § 1332(a) (1988), and the dis-
trict court dismissed the action. Although the district court failed
explicitly to consider the factors guiding decisions to dismiss for fail-
ure to prosecute, Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989),
cert. denied, 493 U.S. 1084 (1990), the error was harmless. Duggan
was personally responsible for the failure; the Defendant was preju-
diced in preparing a defense; Duggan had a history of dilatoriness
with respect to his interactions with Everd in a collateral matter; and,
because Duggan was an attorney and knew the consequences of a fail-
ure to respond, it is likely that no sanction less drastic than dismissal
was appropriate. The initial order dismissing the complaint was not
fatally erroneous, and Duggan failed to proffer an acceptable basis
under Fed. R. Civ. P. 60(b) for reconsideration of the order. There-
fore, we affirm the district court order with respect to the denial of
reconsideration of the dismissal order.

The district court erred, however, in ordering sanctions. We review
the decision for abuse of discretion. Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 400-01 (1990). The district court here abused its
discretion by refusing to consider legal constraints on its decision.
James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1990). Although the dis-
trict court itself properly noted that the language of Rule 11 plainly
forbids payment of sanctions to opposing parties except on motion of
the parties, Fed. R. Civ. P. 11(c)(2), the court here initiated the sanc-
tions on its own through a show-cause order and ordered the resultant

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sanctions be paid to Defendant. This was error, and we vacate the
order on that basis.

Thus, we affirm the district court order with respect to the denial
of reconsideration of the initial dismissal order. We vacate the order
and remand the action, however, with regard to the imposition of
sanctions. We decline Duggan's invitation to address in this case the
issue of imposition of a supervisory rule regarding the filing of Rule
11 motions and orders only prior to the entry of a final order. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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