                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                    January 5, 2007
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk
                                        No. 06-40497
                                      Summary Calendar


       VICTOR MURRAY,

                                                           Plaintiff-Appellant,

                                             versus

       SERENA SOFTWARE INC,

                                                           Defendants-Appellees.



                    Appeal from the United States District Court for
                        the Eastern District of Texas (Sherman)
                              (USDC No. 4:04-CV-223)
           _________________________________________________________

Before REAVLEY, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

       This appeal arises from a lawsuit brought by Plaintiff/Appellant Victor Murray

(“Murray”) against his former employer, Serena Software, Inc. The district court entered

a judgment of dismissal in this case as a sanction for Murray’s repeated failure to comply

with discovery orders. Murray sought reconsideration of the dismissal, and the district

judge, treating the request as a motion for relief from judgment, denied it. Murray now


       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
seeks our intervention. For the following reasons, we decline to reverse the district

judge's exercise of discretion:

       1.     Because Murray did not appeal the judgment of dismissal, we review only

              the district judge's refusal to grant him relief from the judgment. We may

              not treat the appeal from the ruling on the Rule 60(b) motion as an appeal

              from the dismissal itself. Vela v. Western Elec. Co., 709 F.2d 375, 376

              (5th Cir. 1983) (citations omitted). “[A]ppellate review of the denial of a

              Rule 60(b) motion must be narrower in scope than review of the underlying

              order of dismissal so as not to vitiate the requirements of a timely appeal.”

              Id. (citation omitted). Thus we reverse only if the district judge has plainly

              abused his discretion.

       2.     Federal Rule of Civil Procedure 60(b)(1) provides that a district court may

              grant relief from final judgment based on “mistake, inadvertence, surprise,

              or excusable neglect.” Such relief is not appropriate when a litigant

              exhibits a disregard for the judicial process or repeated indifference to court

              orders. See Vela, 709 F.2d at 376-77. Murray failed to identify any

              excusable neglect or other basis for the court to reconsider its order

              dismissing his action, and his recurring non-compliance reflects a

              pronounced disrespect for the court’s processes and orders.

       3.     Federal Rule of Civil Procedure 37(b)(2) “authorizes the district court to

              strike pleadings or render a default judgment against a party as a sanction

                                             2
              for failure to comply with a discovery order.” United States v. $49,000

              Currency, 330 F.3d 371, 376 (5th Cir. 2003). The record in this case

              reveals that Murray repeatedly failed to comply with multiple orders of the

              district court. Specifically, Murray (1) failed to cooperate fully in preparing

              the joint pretrial report, 1 (2) failed to timely make pretrial disclosures, (3)

              failed to timely return Serena’s company property as ordered, and (4) failed

              to timely pay sums levied as sanctions for two separate incidences of

              discovery misbehavior. Murray also failed to respond to a number of his

              adversary’s motions, including Serena’s motion for summary judgment and

              motion for costs and attorney fees.2

       4.     The less drastic sanctions levied by the district court did not serve to deter

              continued poor conduct by Murray. Murray was specifically warned by the

              court that dismissal would be the sanction for future failure to comply with

              its orders. Because Murray’s actions reflect a persistent disregard of the

              responsibilities owed to the court and his opponents rather than mistake or



       1
          While Murray asserts that counsel for Serena eventually acknowledged his
assistance in preparation of the report, Murray improperly cites to a transcript that is not
part of the record on appeal.
       2
         We agree with the district court that Murray’s motion for reconsideration
evidences a further inattention to its orders as that motion sought relief, not from the
court’s order of dismissal, but from a grant of summary judgment in favor of Serena.
Serena’s motion for summary judgment was, in fact, denied by the district court.


                                               3
          inadvertence, we find no abuse of discretion in the district court’s refusal to

          reconsider dismissal of Murray’s action.

     5.   Because Murray does not raise the issue on appeal, we do not question the

          award or reasonableness of the fees granted to Serena by the district court.

          However, although the record before us is limited, we have seen enough to

          raise the question of the relative culpability between Murray and his

          attorney. We are ordinarily reluctant to penalize a client for a lawyer's

          fault. See Vela, 709 F.2d at 376. Accordingly, while we affirm the court’s

          refusal to reconsider its order of dismissal, we remand for the limited

          purpose of allowing the district judge to determine whether, in his

          discretion, he wishes to impose sanctions on counsel via apportionment of

          the fee award.

DENIAL OF RECONSIDERATION AFFIRMED, REMANDED FOR LIMITED PURPOSES
STATED




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