               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT

                       _____________________

                            No. 98-40274
                       _____________________


RICHARD GAYDEN,

                               Plaintiff-Appellant,

          v.


GALVESTON COUNTY TEXAS; GALVESTON COUNTY JUVENILE PROBATION
DEPARTMENT,

                               Defendants-Appellees.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                           (G-97-CV-132)
_________________________________________________________________

                          March 24, 1999

Before KING, Chief Judge, STEWART, Circuit Judge, and LITTLE,
District Judge.*

KING, Chief Judge:**

     Plaintiff-appellant Richard Gayden appeals from the district

court’s dismissal of his employment discrimination lawsuit, which

was dismissed because of the conduct of his attorney.   Marlene

Dancer Adams, plaintiff-appellant’s attorney, appeals from an


     *
        District Judge of the Western District of Louisiana,
sitting by designation.
     **
       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this opinion should not be published and is not precedent except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.
order of the district court that (1) assessed a $5000 fine

against her payable to the district court, and (2) required her

to reimburse defendants-appellees’ counsel in the amount of

$2500.

               I.    FACTUAL AND PROCEDURAL BACKGROUND

     What follows is the saga of the dilatory performance of

Marlene Dancer Adams, plaintiff-appellant Richard Gayden’s

(plaintiff) counsel in this lawsuit.    Adams filed suit on behalf

of plaintiff on October 24, 1996 in the Southern District of

Texas.   Defendants-appellees Galveston County, Texas and

Galveston County Juvenile Probation Department (collectively,

defendants) were not served, however, until January 1997,

necessitating the postponement of the initial pretrial and

scheduling conference from February 3, 1997 to March 10, 1997.

On February 21, 1997, defendants filed their answer and moved for

a change of venue to the Galveston Division of the Southern

District of Texas.    On February 26, 1997, the district court

granted the unopposed motion.

     District Judge Samuel Kent of the Galveston Division of the

Southern District of Texas thereafter ordered an initial pretrial

and scheduling conference for August 6, 1997.    On September 3,

1997, Judge Kent held a scheduling conference wherein, inter

alia, he set December 30, 1997 as the discovery deadline and

scheduled a pretrial conference for the week of January 12, 1998

before Magistrate Judge John Froeschner.




                                   2
     Defendants sent interrogatories to plaintiff on October 21,

1997.    On November 24, 1997, Adams’s secretary called defendants’

counsel to request a few extra days to respond to the

interrogatories.    According to defendants, the secretary advised

defendants’ counsel that the interrogatory answers were finished

but that Adams was away and would be back in a few days to review

them.    Defendants agreed to the requested extension.   Thereafter,

on December 15, 1997, defendants’ counsel wrote a letter that

advised Adams that the interrogatory answers were long overdue.

The letter also noticed plaintiff’s deposition for December 30,

1997 and advised Adams that a hearing had been scheduled for

January 8, 1998.    Adams faxed the interrogatory answers to

defendants on December 19, 1997.1

     Eleven days before the close of discovery, on December 19,

1997, Adams issued plaintiff’s first discovery requests.

Plaintiff noticed the depositions of the custodians of records of

the Galveston County Legal Department, the Galveston County

Juvenile Probation Department, and the Galveston County Human

Resources Department.    The depositions were scheduled for

December 29, 1997.    The notices included requests for a total of

twenty-one categories of items.     That same day, defendants filed

motions to quash the deposition notices.    Dissatisfied with




     1
        The certificate of service states   that the answers were
delivered on December 16, 1997. However,    the path statement at
the top of the document indicates that it   was faxed on December
19, 1997. Plaintiff swore to the answers    on December 15, 1997.

                                  3
plaintiff’s interrogatory answers received that day, defendants

also filed a motion to compel.

     On December 30, 1997, Magistrate Froeschner conducted a

hearing on defendants’ motions.   That morning, plaintiff had

filed a motion to quash the subpoena duces tecum attached to the

notice of his deposition scheduled for later that day.

Magistrate Froeschner denied plaintiff’s motion to quash and

denied defendants’ motion to compel regarding plaintiff’s

interrogatory answers, but prohibited plaintiff from offering

expert testimony at trial.   He also quashed plaintiff’s subpoenas

in regard to many of the documents requested from the custodians

of records.   Finally, Magistrate Froeschner moved the deadline

for the pretrial order to noon on January 14, 1998.   The pretrial

conference was scheduled for January 15, 1998.

     On January 6, 1998, plaintiff attempted to file an amended

complaint.

     On January 8, 1998, Judge Kent conducted a docket call,

notice of which had been sent to all counsel of record on

December 10, 1997.   Plaintiff and Adams did not appear at the

docket call, and did not notify the district court that they

would not be appearing.   As a result, Judge Kent dismissed the

case for want of prosecution in an order dated January 8, 1998.

On January 9, 1998, Judge Kent filed an order striking

plaintiff’s first amended complaint, filed January 6, 1998, for

failure to request leave of the court.




                                  4
     On January 22, 1998, plaintiff filed a Rule 59(e) motion,

seeking to have the case reinstated.   In this motion, Adams

argued that she missed the January 8, 1998 docket call because,

during the December 30, 1997 hearing, she recalled Magistrate

Froeschner stating, after he moved the deadline for the joint

pretrial order to January 14, 1998, “that docket call would be

the day after the joint pre-trial order was due, or January 15,

1998, since the joint pre-trial order guides the Court at docket

call as to issues and settlement possibilities.”    According to

Adams, she therefore changed the date of the docket call in her

calendar system from January 8, 1998 to January 15, 1998.   Her

motion also informed the district court that she had never before

missed a docket call in over seventeen years of practicing law,

and then set forth arguments as to why the district court’s

ruling was legally inappropriate under Federal Rules of Civil

Procedure 16(f), 41(b), and the court’s inherent power to manage

attorneys practicing before it.

     Defendants responded to plaintiff’s Rule 59(e) motion by

bringing to Judge Kent’s attention that Magistrate Froeschner had

never stated that he was moving the date of the docket call.

Instead, the transcript of the December 30, 1997 hearing reflects

that the only date that Magistrate Froeschner changed was the

date of the deadline for the pretrial order.   Magistrate




                                  5
Froeschner explicitly stated that all other dates would remain

the same.2

     Thereafter, on February 13, 1998, the district court entered

an order conditionally granting plaintiff’s Rule 59(e) motion.

In his order, Judge Kent expressed irritation with the tenor of

plaintiff’s motion.    In Judge Kent’s view, the motion did not

accept responsibility for the failure to appear at the January 8,

1998 docket call, instead blaming Magistrate Froeschner, and was

condescending in its explanation of the court’s power to dismiss

the case.    Nevertheless, concluding that lesser sanctions would

be effective, Judge Kent agreed to grant plaintiff’s Rule 59(e)

motion and vacate his order dismissing plaintiff’s case provided

that, by February 27, 1998, Adams personally paid a $5000 fine to

the district court and reimbursed defendants’ counsel $2500 for

the costs and attorneys’ fees incurred due to plaintiff’s failure

to appear at the docket call.3    The district court’s order

explicitly stated that failure to pay the fine or reimburse the


     2
          According to the transcript, Magistrate Froeschner
stated:

     I’ll move the pretrial order deadline ‘til the 14th at noon
     because the next day at 11 is when we’re going to have the
     pretrial conference and I don’t want to get it at 9:30 in
     the morning. So by noon I want the pretrial order here. So
     that ought to give you plenty of time to plug in anything
     new. Other than that, everything else will remain as is.
     3
        Judge Kent noted that he typically fined attorneys $250
for failing to appear. He stated, however, that he believed that
the facts of this case warranted a harsher sanction. He also
instructed Adams to make the payments exclusively from her own
funds and not to seek reimbursement from plaintiff or from any
settlement proceeds.

                                  6
defendants would result in the denial of plaintiff’s Rule 59(e)

motion and a dismissal of plaintiff’s claims pursuant to Federal

Rules of Civil Procedure 16(f) and 37(b)(2)(C).

     Adams did not make the payments ordered by the district

court and did not contact the court prior to the February 27,

1998 deadline.   The district court therefore issued a final

judgment, filed March 6, 1998, that reinstated the dismissal of

plaintiff’s claims without prejudice.4   Plaintiff and Adams

filed a joint notice of appeal on March 13, 1998.

     On appeal, Adams argues that she mistakenly believed that,

because Magistrate Froeschner moved the deadline for the pretrial

order to the day before the pretrial conference, the docket call

was therefore scheduled to take place during the pretrial

conference.   She argues that her Rule 59(e) motion did not

attempt to place blame on Magistrate Froeschner for the

misunderstanding, that she admitted that she was confused in her

motion, and that at no point in the motion did she argue that the

district court held docket call on the wrong date, that

Magistrate Froeschner had set the docket call for a different

date, or that Magistrate Froeschner had attempted to mislead her.

Instead, according to Adams, she mistakenly believed that the

     4
        Because the statute of limitations for plaintiff’s claims
had expired, the dismissal was a de facto dismissal with
prejudice. “‘Where further litigation of [a] claim will be time-
barred, a dismissal without prejudice is no less severe a
sanction than a dismissal with prejudice, and the same standard
of review is used.’” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188,
1191 (5th Cir. 1992) (alterations in original) (quoting McGowan
v. Faulkner Concrete Pipe Co., 659 F.2d 554, 556 (5th Cir. Unit A
Oct. 1981)).

                                 7
docket call would take place during the pretrial conference, and

her Rule 59(e) motion was merely an attempt to communicate the

basis for her mistaken belief to the district court.    She urges

this court to find that the district court abused its discretion

by dismissing plaintiff’s case.     She also urges us to find that

the order requiring her to make payments totaling $7500 was an

abuse of the district court’s discretion because the amount to be

paid was higher than the amount normally assessed by the district

court in similar situations.

                     II.    STANDARD OF REVIEW

     We review sanctions imposed by the district court, including

the involuntarily dismissal of a case, to determine whether the

district court abused its discretion.     See Maguire Oil Co. v.

City of Houston, 143 F.3d 205, 208 (5th Cir. 1998) (reviewing

imposition of sanctions for abuse of discretion); Woodson v.

Surgitek, Inc., 57 F.3d 1406, 1417 (5th Cir. 1995) (reviewing

involuntary dismissal for abuse of discretion); Topalian v.

Ehrman, 3 F.3d 931, 934 (5th Cir. 1993) (reviewing imposition of

sanctions for abuse of discretion).     It is an abuse of discretion

to impose sanctions if the factual findings on which the

sanctions are based are clearly erroneous or if the district

court is operating under an erroneous view of the law.     See

Maguire, 143 F.3d at 208.

                           III.   DISCUSSION

     The district court dismissed plaintiff’s case under Federal

Rules of Civil Procedure 16(f) and 37(b)(2)(C).    Seeing no need


                                   8
to restate legal principles with which both the district court

and the parties are intimately familiar, we first consider the

district court’s February 13, 1998 order requiring Adams to make

payments totaling $7500.   Adams challenges this order on the

ground that the district court incorrectly justified its order by

finding bad faith on her part, and on the ground that the amount

of the required payments is too high.   She argues that because

she did not miss the docket call in bad faith, and because the

district court normally imposes $250 fines for missed docket

calls, the fine against her should be limited to $250.

     Her arguments lack merit.   The district court stated that it

was imposing a higher fine in this case because, in her Rule

59(e) motion, Adams misrepresented what happened at the

conference in front of Magistrate Froeschner in a manner that the

district court interpreted as an attempt to shift the blame away

from herself.   In her Rule 59(e) motion, Adams did misattribute

to Magistrate Froeschner the statement “that docket call would be

the day after the joint pre-trial order was due, or January 15,

1998.”   The transcript reveals that Magistrate Froeschner made no

such statement, as defendants pointed out to Judge Kent in their

response to the Rule 59(e) motion.   The district court further

justified its sanction because of “the facts and the troubling

nature of Plaintiff’s conduct and attitude in this case,”

including the numerous instances of delay recounted above.    Based

on the misrepresentation found in Adams’s Rule 59(e) motion and

based on the pattern of delay apparent from the record, the


                                 9
district court did not abuse its discretion by imposing a higher

fine than it normally imposes.

     As to the exact amount of the fine, at no time between the

February 13, 1998 order and the March 6, 1998 order dismissing

the case did Adams argue before the district court that the

amount the district court ordered her to pay was unreasonable or

excessive.   We thus have no record before us from which to assess

whether the amount the district court ordered Adams to pay was

unduly burdensome.   We decline to consider the amount of the fine

because it was not challenged below.5   See United States ex rel.

Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th Cir. 1998);

Abbott v. Equity Group, Inc., 2 F.3d 613, 627 n.50 (5th Cir.

1993).   However, because Adams’s behavior has caused the

defendants to incur additional expenses on this appeal, in the

exercise of our discretion, we modify the $5000 award owed to the

district court so that Adams is ordered to pay $1500 of that

amount to the defendants’ counsel as compensation for their

expenses associated with this appeal and $3500 directly to the

district court.   We affirm the order as modified.




     5
        We note, however, that the $2500 the district court
ordered Adams to pay to defendants’ counsel was proper because,
as a sanction for failing to appear at a scheduling or pretrial
conference, the district court is authorized by Rule 16(f) to
require an attorney to pay the reasonable expenses, including
attorneys’ fees, that her opponent incurred because of the
attorney’s failure to appear. See FED. R. CIV. P. 16(f). There
is no indication from the record that $2500 is not commensurate
with the expenses defendants’ counsel incurred in conjunction
with the missed docket call.

                                 10
     As to the district court’s March 6, 1998 judgment of

dismissal, we confess we are reluctant to punish plaintiff for

the failings of his attorney.    See Clofer v. Perego, 106 F.3d

678, 680 (5th Cir. 1997); Callip v. Harris County Child Welfare

Dep’t, 757 F.2d 1513, 1522 (5th Cir. 1985); Morris v. Ocean Sys.,

Inc., 730 F.2d 248, 253 (5th Cir. 1984).     While the frustration

of the district court with the performance of plaintiff’s counsel

is understandable, to say the least, after reviewing the record,

we conclude that the district court abused its discretion in

dismissing plaintiff’s case.

     Adams is ordered to make the payments required by the

district court’s February 13, 1998 order as modified within

thirty days of the issuance of our mandate.    If she fails to do

so, then the district court will be justified in dismissing

plaintiff’s case.   Moreover, if any further dilatory conduct

occurs, then the district court will certainly have a predicate

for severe sanctions, up to and including dismissal.

                          IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the February 13, 1998

order of the district court as modified, VACATE the district

court’s March 6, 1998 judgment of dismissal, and REMAND for

further proceedings consistent with this opinion.




                                 11
