                       IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE FIFTH CIRCUIT
                                   _________________________

                                          No. 95-20075
                                       (Summary Calendar)
                                   _________________________

PATRICIA A. ANGEL,
                                                                         Plaintiff-Appellant,
                                                 versus

CONSOLIDATED FREIGHTWAYS, INC.,
DANIEL PUIS, PAM DAFT, RICK IRBY,
DON MOFFITT, AND GEORGE PAYNE,
                                                          Defendants-Appellees.
                 ____________________________________________________

                        Appeal from United States District Court
                          from the Southern District of Texas
                                     (H-94-2998)
               __________________________________________________
                                  November 24, 1995
Before JONES, JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

                Patricia A. Angel appeals the district court judgment dismissing her employment

discrimination action and the subsequent denial of her motion for relief from the dismissal. For the

following reasons, we reverse the judgment of the district court dismissing Angel’s action.




                                                FACTS

                On August 30, 1994, the same day in which Angel filed her employment discrimination

action, the district court issued an order establishing deadlines. The district court scheduled an initial

pretrial and scheduling conference for January 13, 1995 and ordered the parties to submit a joint


    *Local Rule 47.5 provides: "The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless expense
on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
report of meeting and joint discovery/case management plan on or before January 3, 1995. The order

expressly cautioned that failure to comply with the order could result in sanctions, including dismissal

of the action and assessment of fees.

               Angel's attorney, James R. Butler, inadvertently entered the wrong date on his

personal calendar. He entered the deadlines in the month of February instead of the month of

January.

               Counsel for Consolidated Freightways, Inc. ("CFI"),1 John V. Jansonius,

unsuccessfully attempted to contact Butler prior to the January 3 deadline. Five days before the

January 3 deadline, Jansonius also transmitted via facsimile a proposed plan, which stated that the

proposal was for the "upcoming conference." Because Butler did not reply, Jansonius filed a plan for

CFI and sent a copy to Butler via certified mail posted January 3.

                Butler never filed a joint report of meeting or a joint discovery/case management plan.

On January 9, 1995 the district court signed an order dismissing Angel's case because her attorney

violated his order. Butler discovered his calendaring mistake when he received a call from the court

canceling the pretrial and scheduling conference because the judge had signed an order of dismissal.

Four days later, Angel filed a Motion for Relief from Judgment and Order of Dismissal. After the

court denied the motion, Angel instituted two separate appeals, one from the order of dismissal and

one from the order denying her Motion for Relief from the Judgment and Order of Dismissal, which

were consolidated by this Court.

                                           DISCUSSION

A. FINDING OF AN AGGRAVATING FACTOR

               The primary issue in this appeal concerns whether the district court properly

sanctioned the noncompliance of its scheduling order by dismissing Angel’s employment



      1
       Although Angel named several defendants in her action, she o nly served Consolidated
Freightways, Inc. Thus, Consolidated Freightways, Inc., Is the only defendant who has appeared and
participated in this action.

                                                   2
discrimination action.2 Angel argues that because her suit is now time barred, the practical effect of

the district court’s dismissal is a dismissal with prejudice. She claims that the drastic sanction of

dismissal with prejudice is not justified in the present case because none of the aggravating factors

recognized by this Circuit are present: (1)Angel did not contribute to the violation of the order; (2)

CFI is not prejudiced by the delay; and (3) the delay was not intentional. Therefore, she maintains

that the district court abused its discretion by dismissing her cause of action.3

               On the other hand, CFI contends that because the district court made a factual finding,

which Angel does not dispute, that Butler’s noncompliance with the scheduling order constituted

“willful indifference,” dismissal is an appropriate sanction. Further, CFI underscores the sanctity of

the district court’s discretion to impose sanctions in order t o advance the expeditious and orderly

prosecution of cases on its docket.

               We agree with Angel that we should treat the dismissal as a dismissal with prejudice

because Angel’s action is time barred.4 When a timely filed action under Title VII or the ADA is

dismissed after the expiration of the 90 day filing period, the plaintiff effectively is prohibited from

refiling the action. See Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th Cir. 1992) (dismissal

was considered as one “with prejudice” because the act ion was time barred under Title VII). We

review a dismissal with prejudice for failure to prosecute for abuse of discretion, id. , and we review

the factual findings upon which the dismissal is based under the clearly erroneous standard, John v.

Louisiana, 899 F.2d 1441, 1447 (5th Cir. 1990).

      2
    The district court apparently dismissed Angel’s claim without notice or opportunity to present
reasons for violating the scheduling order. Because Angel did not argue to the district court or in her
brief that the dismissal violated her due process rights, we cannot consider this argument. See
Williams v. Brown & Root Co., 828 F.2d 325, 329 n.9 (5th Cir. 1987).
      3
     Angel also mentions repeatedly that the district court dismissed her action on its own motion.
“The fact that the sanction[] [was] initially sought on the court’s own motion, rather than that of the
defendants, is irrelevant.” John v. Louisiana, 899 F.2d 1441, 1447 (5th Cir. 1990). Rule 16(f) allows
the court to dismiss an action on its own motion as a sanction.
  4
   This Court has previously noted the appropriateness of analyzing a dismissal with prejudice under
Federal Rule of Civil Procedure 16(f) using the extensive caselaw developed under rule 41(b). See
Callip v. Harris County Child Welfare Dep’t, 757 F.2d 1513, 1518 (5th Cir. 1985).

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                The dismissal with prejudice is a drastic remedy. Imposition of this extreme sanction

should be limited to cases in which a “lesser sanction would not better serve the interests of justice.”

Burden v. Yates, 644 F.2d 503, 505 (5th Cir. 1981). Although the district court may dismiss an action

for failure to prosecute under its inherent authority, “the threshold for use of this sanction is high.”

Chaves v. M/V Medina Star, 47 F.3d 153, 156 (5th Cir. 1995). We have repeatedly cautioned that

the court must exercise this power with “restraint and discretion.” Id.; see also Callip v. Harris

County Child Welfare Dep’t, 757 F.2d 1513, 1519 (5th Cir. 1985) (after noting that “the sanction of

dismissal with prejudice is reserved for the most egregious circumstances,” the court reversed the

dismissal because the offense was not serious and the court could have employed lesser sanctions);

Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213 (5th Cir. 1976) (“In the past, we have

found that lesser sanctions would suffice in all but the most flagrant circumstances.”).

                Accordingly, we will not affirm a dismissal with prejudice for failure to prosecute

unless we find the presence of one of the following aggravating factors: (1) delay attributable directly

to the plaintiff, rather than his attorney, (2) actual prejudice to the defendant, (3) delay caused by

intentional conduct. Callip, 757 F.2d at 1519.

                Looking at the face of a cold record, it is impossible for us to see an attorney’s defiant

sneer or hear his raised voice to the court. Neither can we know of informal extensions or off-handed

reprimands, which often occur prior to the transgression at issue on appeal, because informal

discussions rarely appear in the record. Nonetheless, the district court, who has developed a history

with the attorneys and parties in the context of the case, weighs these events when assessing the

egregiousness of an attorney’s breach, and rightly does so. In light of all the circumstances in a case,

the district court is in the best position to determine whether a particular error by an attorney was

committed in bad faith. We are therefore obligated to respect the factual determinations of the

district court and reverse them only upon a showing that the findings are clearly erroneous.

                Here, Angel apparently argues that the record bespeaks only one prior deadline missed

by Butler, and that this one infraction resulted in the loss of Angel’s entire action. However, the


                                                    4
district court, which was in a better position to know al l the conduct of the attorneys, considered

several facts when deciding to dismiss the case. Compare E.F. Hutton & Co. V. Moffatt, 460 F.2d

284, 285 (5th Cir. 1972) (“The single mistake of counsel as to the pre-trial conference date certainly

will not suffice for . . . a showing [of a clear record of delay or contumacious conduct.]”). In the

Order of Dismissal, the district court concluded that Butler had no excuse for failing to comply with

the order. The scheduling order had warned that noncompliance could result in dismissal. Further,

Butler did not request an extension of time. At this time the court was also aware that Butler failed

to respond to Jansonius’ proposed plan because Jansonius represented this fact to the court when

timely submitting the plan he did without Butler’s input.

               In the Order Denying Relief from Judgment, the district court made further findings

that But ler was “more than merely inadvertent or negligent in recording in his personal docket a

court-ordered setting,” rather Butler’s actions amounted to “willful indifference” to the Court’s Order

and the discovery rules. The Court’s findings are as follows:

               [I]n her Motion for Relief, Plaintiff’s counsel states that he had
               “intended a meeting with opposing counsel . . . during the week of
               January 16, 1995.” It is clear fro m the submissions that no prior
               meeting was held by the parties as required by Fed. R. Civ. P. Rule
               26(f) and the Court’s Order for Conference, and Defendant’s counsel
               has denied -- and Plaintiff’s counsel does not contend -- that any
               arrangements had actually been made for any meeting at all.

                     After having carefully reviewed Plaintiff’s motion, and the
               arguments in support and in opposition thereto, the Court finds that
               Plaintiff has been more than merely inadvertent or negligent in
               recording in his personal docket a court-ordered setting. The
               subsequent communications from Defendant and efforts on
               Defendant’s part to cooperate in the timely filing of the required Joint
               Discovery/Case Management Plan, and failures of Plaintiff’s counsel
               to respond to Defendant with regard to this case, in the aggregate all
               suggest a willful indifference to the Court’s Order and to the
               requirements of Rule 26, Fed. R. Civ. P. Plaintiff has failed to show
               mistake, inadvertence, surprise, or excusable neglect of the nature
               required by Fed. R. Civ. P. Rule 60(b). . . .

The district court in the present case detailed its findings in its orders. The court’s finding that

Butler’s actions were “more than merely inadvertent or negligent” and demonstrated “willful



                                                  5
indifference” are sufficient to raise Butler’s error to the level of the contumacious or intentional

“aggravating factor” contemplated by this Court in Callip. See 757 F.2d at 1519.

               We cannot say that the finding of “willfulness” is clearly erroneous. Butler may have

mistakenly recorded the wrong date for the conference and the deadline; however, the court

determined that this error exceeded the negligence threshold in light of Butler's other actions

regarding the defendant's counsel. Further, the district court drew reasonable inferences from Butler's

failure to be entirely candid with the court. Thus, we must accept as true the district court’s finding

that Butler’s conduct was more than negligent and willfully indifferent, conduct amounting to an

aggravating factor which can support the sanction of dismissal.

B.   FINDING REGARDING ALTERNATIVE SANCTIONS

               The finding of an aggravating factor does not end our inquiry. We have indicated that

even when an attorney exemplifies contumacious conduct, an attorney should receive a lesser sanction

prior to dismissal if it would adequately address the violation. See Berry, 975 F.2d at 1191 (“We will

affirm dismissals with prejudice for failure to prosecute only when (1) there is a clear record of delay

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.” (emphasis added)). Just as the district court must

make factual findings regarding the presence of an aggravating factor, it must make factual

determinations to support the conclusion regarding the inadequacy of alternative sanctions. A

general, conclusory statement that lesser sanctions would not prompt prosecution will not support

a dismissal.

               Accordingly, dismissal can only stand upon (1) an expressed finding that an

aggravating factor is present, and (2) an expressed finding that the district court considered or

actually imposed alternative sanctions before implementing the sanction of last resort. See Callip, 757

F.2d at 1521 (noting that the court cannot affirm dismissal unless the district court made expressed

findings that it considered alternative sanctions and determined that they would not prompt diligent


                                                   6
prosecution or that the record reveals that the court previously imposed lesser sanctions); Hornbuckle

v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir. 1984) (explaining that the district court must

expressly consider alternative sanctions because these factual findings are important in the review of

whether the court abused its discretion and then remanding for expressed findings); Rogers v. Kroger

Co., 669 F.2d 317, 321-22 (5th Cir. 1982) (after noting that “there is nothing in the district court’s

order and opinion or the record indicating that less severe sanctions were considered and found to

be futile or contrary to the interests of justice,” and that “[t]he district court could very well have

found one or more of these sanctions efficacious in this case,” the court remanded so that the district

court could impose a lesser sanction).

               Here, Butler received a warning in the scheduling o rder that dismissal might result

from his failure to comply with the order. The scheduling order warning cannot serve as a substitute

for the imposition of lesser sanctions, and does not therefore satisfy the alternative sanctions

requirement.

               Further, although the district court gave detailed findings that Butler’s violation was

willful, the order is void of expressed findings that a lesser sanction would have been futile. The

record does not evidence any previous sanction rendered by the court that Butler ignored. The

record does not demonstrate that the court had any reason to fear that Butler would further disregard

its order if sanctioned with fines, costs, or damages instead of dismissal. We are not in a position to

assume that alternative sanctions would be ineffectual in a given situation. Therefore, we hold that

the sanction of dismissal cannot survive in the absence of an expressed finding that alternative

sanctions were considered or previously employed. Accordingly, the district court in the present case

abused its discretion by dismissing Angel's case without first imposing a lesser sanction or expressly

finding that lesser sanctions would have been futile.

C.   SEVERITY OF THE SANCTION

               The final phase of our review requires us to weigh the infractions against the draconian

penalty of dismissal. Accepting the finding of willfulness, we do not share the trial court’s opinion


                                                  7
that Butler’s actions warranted dismissal rather than a lesser sanction, and the district court has given

us no findings regarding the inadequacy of alternative sanctions              because of the peculiar

circumstances of this case. In F.D.I.C. v. Conner, 20 F.3d 1376, 1381 (5th Cir. 1994), we reversed

a judgment of dismissal because the plaintiff’s conduct “did not exhibit the degree of delay o r

contumacy that justifies dismissal of all claims.” There, the FDIC filed a groundless motion for

protective order, filed a motion for extension of time, and filed responses in violation of the court’s

order. Although the FDIC’s conduct warranted sanctioning, it did not merit dismissal based on the

record presented on appeal.

                Similarly, Butler’s willful conduct admittedly deserves punishment; however, the

district court’s current findings do not support the penalty imposed. If Butler’s overall demeanor in

court was disrespectful or if the district court previously had reprimanded Butler informally off the

record in this case or another case, the district court has failed to convey these events in its findings.

Consequently, there is a gulf between the violation and punishment in the present case. Even if the

district court considers an alternative sanction, when great disparity exists between the aggravating

factor and the sanction imposed, we must conclude that the district court abused its discretion.

Remand is necessary to allow the district court an opportunity to more closely match the sanction

with Butler’s infractions.

                Because we are reversing the judgment of dismissal, the appeal from the judgment

denying Angel relief from the judgment of dismissal is moot. Therefore, we do not address the merits

of either party’s arguments regarding that appeal.

                                           CONCLUSION

                For the foregoing reasons, we REVERSE the judgment dismissing the plaintiff’s

action and REMAND for imposition of a lesser sanction.




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