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

                                                                            FILED
                                                                           April 29, 2008

                                       No. 07-20357                   Charles R. Fulbruge III
                                                                              Clerk

RICKY RAYMOND; DONALD EUBANKS; VIRGINIA LARA

                                                  Plaintiffs-Appellants
v.

UNIVERSITY OF HOUSTON

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (05-CV-4149)


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Plaintiffs-Appellants Ricky Raymond, Donald Eubanks, and Virginia Lara
(“Appellants”) appeal the involuntary dismissal of their action against
Defendant-Appellee University of Houston (“the University”) for failure to
prosecute under Federal Rule of Civil Procedure 41(b). Because we conclude
that the record here does not support the extreme sanction of dismissal with
prejudice, we REVERSE the judgment of the district court 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 07-20357

       Rule 41(b) provides that “[i]f the plaintiff fails to prosecute or to comply
with these rules or a court order, a defendant may move to dismiss the action or
any claim against it.” FED. R. CIV. P. 41(b). In other words, “Rule 41(b) allows
the district court to dismiss an action upon the motion of a defendant, or upon
its own motion, for failure to prosecute.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190 (5th Cir. 1992). We review a district court’s dismissal with prejudice
for failure to prosecute pursuant to Rule 41(b) for an abuse of discretion. Id. at
1191. We have recognized, however, that a dismissal with prejudice is “an
extreme sanction that deprives the litigant of the opportunity to pursue his
claim.” Id. (internal quotations omitted). “Consequently, this Court has limited
the district court’s discretion in dismissing cases with prejudice.” Id. We have
stated:
           We will affirm dismissals with prejudice for failure to prosecute
           only when (1) there is a clear record of delay1 or contumacious
           conduct by the plaintiff, and (2) the district court has expressly
           determined that lesser sanctions would not prompt diligent
           prosecution, or the record shows that the district court employed
           lesser sanctions that proved to be futile.

Id. We have also stated that “in most cases where this Court has affirmed
dismissals with prejudice, we found at least one of three aggravating factors: (1)
delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice
to the defendant; or (3) delay caused by intentional conduct.” Id. (internal
quotations omitted); see also Rogers v. Kroger Co., 669 F.2d 317, 320 (5th Cir.
1982) (“The cases in this circuit in which dismissals with prejudice have been
affirmed on appeal illustrate that such a sanction is reserved for the most
egregious of cases, usually cases where the requisite factors of clear delay and

       1
         We have found a “clear record of delay” where there have been “significant periods of
total inactivity.” Berry, 975 F.2d at 1191 n. 5 (internal quotations omitted).

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ineffective lesser sanctions are bolstered by the presence of at least one of the
aggravating factors.”).
      At most, there appear to be two periods of purported inactivity during the
pendency of this litigation: (1) from April 16, 2006 to November 27, 2006; and (2)
from January 10, 2007 to March 26, 2007. The first period, during which the
Appellants failed to participate in discovery, is wholly attributable to the serious
health problems of their counsel Lionel Mills, who underwent surgery, spent
time at a hospital, became sightless, and ultimately moved into a convalescent
home, all unbeknownst to the Appellants themselves until November 2006. The
second period, during which the Appellants failed to obtain new counsel by the
court-ordered deadline, was not in fact a period of total inactivity.          The
Appellants participated in discovery and engaged in discussions with a new
attorney, Larry Watts, about substituting as lead counsel for Mills, who could
no longer adequately represent Appellants due to his health problems. Watts
eventually agreed to become Appellants’ counsel, but he negligently failed to
inform the district court before the sixty-day deadline it had imposed on
Appellants to find new counsel.
      On this record, we do not find a clear record of delay or contumacious
conduct on the part of the Appellants. Rather, counsel’s conduct “more closely
approximates the kind of negligence that does not warrant dismissal with
prejudice.” John v. State of Louisiana, 828 F.2d 1129, 1132 (5th Cir. 1987); see
also Morris v. Ocean Sys., Inc., 730 F.2d 248, 253 (5th Cir. 1984) (calling
counsel’s conduct “more a matter of negligence than purposeful delay or
contumaciousness”).       Moreover, none of the three “aggravating factors” is
present in this case: (1) the Appellants, as distinguished from their counsel, were
not personally responsible for the delay in prosecuting this lawsuit; (2) there is
no indication that the University was actually prejudiced by the delay in

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prosecution of this case; and (3) the delay was not caused by any intentional
conduct on the part of Appellants or their counsel.
      REVERSED and REMANDED.




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