                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                         March 5, 2007
                               FOR THE FIFTH CIRCUIT
                                                                                    Charles R. Fulbruge III
                                                                                            Clerk
                                            No. 06-41133
                                          Summary Calendar




RICHARD L. DOCKUM,
                                                                                 Plaintiff-Appellant,


                                               versus

WAL-MART STORES TEXAS, LP,

                                                                                Defendant-Appellee.


                           Appeal from the United States District Court
                               for the Southern District of Texas
                                       (No. 1:06-CV-025)




Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

       Richard Dockum appeals from the district court’s denial of his motion for a default judgment

under FED. R. CIV. P. 16(f). We affirm.




       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                      I. FACTUAL AND PROCEDURAL BACKGROUND

       Dockum filed suit against Wal-Mart for injuries he sustained from a slip and fall in a Wal-Mart

in Brownsville, Texas. The district court set a deadline of April 24, 2006, for the parties to submit

a joint discovery case management plan under FED. R. CIV. P. 26 to the court. Dockum and defense

counsel arranged to discuss the plan over the phone on April 18, 2006. Dockum alleges that he

wanted to complete the plan earlier but that defense counsel refused to set an earlier time. Dockum

also alleges that during the conversation, defense counsel was unprepared to discuss the plan and told

Dockum that it would be “a cold day in hell” before Dockum received $500,000.00, the amount

Dockum requested to settle the suit. Additionally, Dockum states that the plan was not submitted

to him until May 2, 2006, after the deadline, a result that he believes resulted from defense counsel’s

purposeful malingering.

       For his part, defense counsel disputes each of these allegations. He states that he walked the

pro se plaintiff through each of the elements of the Rule 26 plan and that he did not remember using

the phrase “cold day in hell.” Defense counsel also argues that when he faxed the completed plan to

Dockum on May 2, Dockum refused to sign it, stating only that he did not like the wording. Dockum

filed a Rule 16(f) motion on May 5, 2006, asking for a default judgment to be entered against the

defendant. Wal-Mart then filed a similar motion on May 12, 2006, asking for dismissal of the case

because Dockum refused to sign the discovery plan. The district court judge denied both motions.

The suit was later dismissed because it was filed after the prescriptive period had expired. Dockum

appeals the denial of his Rule 16(f) motion.




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                                          II. DISCUSSION

        We review the district court’s judgment regarding sanctions based on pre-trial orders for

abuse of discretion. Culwell v. City of Fort Worth, 468 F.3d 868, 870 (5th Cir. 2006). When the

extreme remedy of dismissal is sought under Rule 16(f), the party seeking such relief must

demonstrate “a clear record of delay or contumacious conduct by the [opposing party],” Bann v.

Ingram Micro, Inc., 108 F.3d 625, 627 (5th Cir. 1997), or that no lesser order would “permit the

court to fulfill its obligation to administer justice expeditiously,” Silas v. Sears, Roebuck & Co., 586

F.2d 382, 386 (5th Cir. 1978). The district court, after considering the motions and arguments of the

parties, found that the allegations of Dockum and defense counsel were irreconcilable, such that

neither of them had demonstrated a clear record of delay or any aggravating factor justifying dismissal

or default judgment. The district court did not abuse its discretion in denying Dockum’s Rule 16(f)

motion because he failed to justify the imposition of a default judgment against Wal-Mart.

                                         III. CONCLUSION

        For the foregoing reasons, we affirm the judgment of the district court.




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