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

                                                                            FILED
                                                                           May 16, 2008

                                     No. 07-20869                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


PAT RABORN

                                                  Plaintiff - Appellant
v.

INPATIENT MANAGEMENT PARTNERS INC

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:06-cv-3950


Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Pat Raborn sued her employer, Inpatient Management Partners, Inc.
(“IMS”), in federal court for violations of Title VII and 42 U.S.C. § 1983. Raborn
alleged that IMS unlawfully retaliated against her following her participation
in an Equal Employment Opportunity Commission (EEOC) investigation of
IMS’s employment practices. After her counsel failed to appear for a pretrial
conference, the district court dismissed Raborn’s suit for failure to prosecute.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-20869

Raborn appeals, arguing that the district court abused its discretion by imposing
the sanction of dismissal. We agree. Therefore, we reverse and remand.
                        I. Facts and Procedural Background
      Raborn filed her complaint in district court on December 12, 2006. An
order for conference was entered the next day and the first pretrial conference
was held on March 19, 2007. The next pretrial conference was held on April 5,
2007, after the court granted IMS counsel’s unopposed request for a one-week
continuance. Counsel for both parties attended these conferences, at which the
district judged urged the parties to discuss a settlement.
      On September 17, 2007, counsel for both parties appeared for a third
pretrial conference. At this conference, the district judge again instructed both
parties to attempt to reach a settlement and ordered that Raborn be deposed.1
He then scheduled the next conference for October 22, 2007.
      The factual accounts of what occurred between this third conference and
the October 22 conference diverge to some extent, but the following is the
general course of events. On October 10, counsel for IMS, Jaclyn A. Hermes,
made a settlement offer via email. In the event the offer was rejected, she
requested deposition dates for Raborn no earlier than November 2007. In this
same email, Ms. Hermes requested a continuance of the October 22 conference
because she was set for trial in another matter on that date.
      Larry Watts, counsel for Raborn, states that he telephoned Ms. Hermes
the next day (October 11) and left a voice mail message indicating that he was
not opposed to the continuance. On this same day, Mr. Watts emailed Ms.
Hermes regarding her settlement offer; his email states that he attempted to
contact Ms. Hermes by phone but does not express a position on her request for

      1
         Counsel for Raborn asserts that the district judge ordered that Raborn be deposed
within thirty days of the September 17 conference. Petr’s Brief at 6 & n.4. Counsel for IMS
does not directly refute the assertion, but notes that “nothing in the Record supports this
allegation.” App.’s Brief at 2 n.5. This factual dispute does not affect our decision.

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a continuance. Ms. Hermes asserts that she never received a voice mail message
from Mr. Watts.
      Ms. Hermes sent two more emails to Mr. Watts, dated October 17 and 18,
requesting that he agree to a continuance. Mr. Watts admits that he realized on
October 17 that Ms. Hermes had not received his voice mail. He did not
personally respond to either of these emails but asserts that he “gave
instructions” that Ms. Hermes be informed that he was not opposed to her
request for a continuance. He concedes now that this message must not have
been communicated to Ms. Hermes, but argues that he only became aware of
this fact after the October 22 conference.
      On October 22, 2007, the district court held a status conference as
originally scheduled. Ms. Hermes attended the conference; Mr. Watts did not.
After a five minute conference, the district court determined that Raborn’s suit
should be dismissed without prejudice and entered the following order:
      Because Pat Raborn has not complied with this court’s September
      18, 2007, discovery order and has failed to appear for the October
      22, 2007, pre-trial conference, this action is dismissed without
      prejudice for want of prosecution.
Raborn moved to reinstate her case, arguing that her counsel mistakenly
assumed the conference had been continued.          In addition, several events
allegedly prevented counsel from being reachable on October 22, including his
being out of town for discovery in another matter and foul weather that caused
his assistant to abandon the office. The district court denied Raborn’s motion to
reinstate her suit. Raborn appealed.
                                 II. Discussion
      A district court may dismiss an action sua sponte for failure to prosecute
or comply with its orders. Fed. R. Civ. P. 41(b); Rogers v. Kroger Co., 669 F.2d
317, 319-20 (5th Cir. 1982). We review a dismissal that ostensibly is without
prejudice as one with prejudice if “the statute of limitations prevents or arguably

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may prevent” a party from refiling after the dismissal. Boazman v. Economics
Laboratory, Inc., 537 F.2d 210, 212-13 (5th Cir. 1976). An effort by Raborn to re-
file her suit would be barred by Title VII’s limitations period.          Berry v.
CIGNA/RSI–CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992). Therefore, we treat
the district court’s dismissal of Raborn’s suit as a dismissal with prejudice.
      A dismissal with prejudice for failure to prosecute is a discretionary ruling.
On appeal we review solely for abuse of that discretion. To sustain such a
dismissal, we must have a clear record of delay or contumacious conduct and the
district court must have expressly found that no lesser sanction would suffice to
prompt diligent prosecution. Id. Even when that standard is met, there should
usually be at least one “aggravating factor.” Rogers, 669 F.2d at 320; but see
Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 418 (5th Cir. 2006) (noting
that factors must “usually,” but not “always,” be present). Prior cases have
identified three aggravating factors: (1) the delay was caused by the plaintiff,
as opposed to her attorney; (2) the defendant suffered actual prejudice; or (3) the
delay was caused by intentional conduct. Berry, 975 F.2d at 1191.
      1. Clear record of delay or contumacious conduct
      The facts of this case do not reveal a “clear record of delay or contumacious
conduct” by Raborn. This court has previously looked for “significant periods of
total inactivity” before declaring that a clear record of delay exists. See Morris
v. Ocean Sys., Inc., 730 F.2d 248, 252 (5th Cir. 1984). Raborn’s case had been
pending for only ten months prior to its dismissal. During that time, Raborn’s
counsel had attended three pre-trial conferences scheduled by the district court
and, so far as we can tell, complied with all of the court’s orders and instructions
(except for the two mentioned in the dismissal order). At least until October
2007, both parties were compliant with the district court’s instructions to engage
in settlement discussions.



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      In fact, email correspondence between Mr. Watts and Ms. Hermes
indicates that the parties were actively engaged in settlement discussions until
at least October 11. Thus, our review of the record reveals, at most, an eleven-
day period of inactivity – the period between Ms. Hermes’s last settlement-
related email and the district court’s entry of the dismissal order. These
circumstances do not constitute a clear record of delay. Compare Morris, 730
F.2d at 252 (eight-month period during which counsel attended status
conferences and noticed depositions did not warrant dismissal) with Sealed
Appellant, 452 F.3d at 416-17 (two-year period during which plaintiff never
served complaint, filed motions, or sought discovery warranted dismissal).
      Further, there is no indication that Raborn or her counsel is guilty of
dilatory tactics, deliberate delays, utter inattention to the litigation, or any other
form of contumacious conduct. As noted, Mr. Watts appeared for every status
conference prior to October 22. Further, he communicated via email with Ms.
Hermes as late as October 11 regarding a potential settlement. We agree with
IMS’s argument that Mr. Watts’s assumption that a court-ordered conference
would be rescheduled, without any effort to verify this assumption by contacting
the court, was unreasonable and even imprudent. See Morris, 730 F.2d at 252.
However, Mr. Watts’s pre-October actions suggest that his failure to appear for
the October 22 conference, although undoubtedly a “significant omission,” was
“more a matter of negligence than purposeful delay or contumaciousness.” Id.
      IMS argues that the district court’s dismissal is supported by Supreme
Court and Fifth Circuit precedent. The Supreme Court affirmed a district
court’s dismissal under Rule 41(b) which occurred after a six-year delay and in
immediate response to counsel’s failure to attend a pretrial conference that he
unquestionably knew had not been continued. Link v. Wabash R.R. Co., 370
U.S. 626, 627-29 (1962). This court affirmed a district court’s refusal to grant
relief under Civil Procedure Rule 60(b) from a dismissal due to lack of

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jurisdiction, when the party who alleged that a conflict had kept him from
attending a scheduled conference did not raise that issue until after the time to
appeal from the dismissal. Pryor v. U.S. Postal Serv., 769 F.2d 281, 285-89 (5th
Cir. 1985). Neither of those precedents is comparable.
       In addition, the record reveals that Raborn is guilty of violating two court
orders.2 “Generally, where a plaintiff has failed to comply with a few court
orders or rules, we have held that the district court abused its discretion in
dismissing the suit with prejudice.” Berry, 975 F.2d at 1192 n.6 (citing cases).
While we do not excuse Raborn’s conduct or that of her counsel, we do not believe
that these two simultaneously-noticed violations warrant the “drastic remedy”
of dismissal with prejudice. Id.; Burden v. Yates, 644 F.2d 503, 505 (5th Cir.
1981) (dismissal was not warranted even though plaintiff “failed to obey clear
directives of the district court” on three successive occasions).
       We are unable to say that the actions of Raborn and her counsel constitute
clear delay or contumacious conduct.
       2. Futility of lesser sanctions
       No lesser sanctions of any kind were imposed on Raborn or her counsel
before the dismissal. Therefore, we look for an express determination by the
district court that lesser sanctions would have been futile in this case. “In the
past, we have found that lesser sanctions would suffice in all but the most
flagrant circumstances.” Boazman, 537 F.2d at 212. Where the dismissal is
ordered primarily in response to counsel’s dereliction, we have stressed that
alternatives to dismissal should be attempted first. See Callip v. Harris County
Child Welfare Dep’t, 757 F.2d 1513, 1521-22 (5th Cir. 1985) (noting that


       2
        We note that if Raborn failed to comply with the district court’s discovery order, i.e.
that Raborn be deposed, then IMS arguably failed to comply with that order as well. Ms.
Hermes admits that she could not find time to depose Raborn until November and that she had
informed Mr. Watts of this fact. Neither party was solely responsible for the failure to depose
Raborn prior to October 22, 2007.

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                                      No. 07-20869

assessment of fines, costs, or damages against plaintiff or counsel, disciplinary
measures, and explicit warnings may be effective remedies); Veazey v. Young’s
Yacht Sale and Serv., Inc., 644 F.2d 475, 477 (5th Cir. 1981) (noting that “lesser
sanctions are clearly preferred” over dismissal). This is particularly true where,
as in this case, there is “nothing whatever in the record to indicate that the
appellant had any knowledge of, or participation in, any of the derelictions of his
counsel.” Flaksa v. Little River Marine Const. Co., 389 F.2d 885, 887 (5th Cir.
1968).
       IMS argues that the district court implicitly concluded that lesser
sanctions would not deter the type of conduct exhibited by Raborn’s counsel,
“namely, Mr. Watts had failed to comply with a court order and failed to appear
for pretrial conference without a legitimate excuse.” As discussed above, this is
not the type of “contumacious conduct” that warrants dismissal. Even if it could
be characterized as “contumacious,” it is not the type of conduct that requires
immediate resort to “the harshest of sanctions . . . .” Porter v. Beaumont
Enterprise and Journal, 743 F.2d 269, 272 (5th Cir. 1984). Rather, it is conduct
that would be better addressed by a lesser sanction in the first instance.
       Further, we are not confronted with the type of deliberately “hostile”
litigation tactics, e.g., Woodson v. Surgitek, Inc., 57 F.3d 1406, 1407-17 (5th Cir.
1995), or utter ignorance of court orders and timetables, e.g., Link, 370 U.S. at
627-29, that have generally been found to warrant dismissal with prejudice.
Here, the record indicates that Raborn implored the court to consider lesser
sanctions in her motion to reinstate her suit. Raborn also asserts that she
attempted to reimburse IMS’s counsel for her inconvenience.3 This type of


       3
         In her motion to reinstate and her brief to this court, Raborn asserts that she
reimbursed IMS’s counsel in the amount of $500 for the inconvenience and costs associated
with attending the October 22 conference and is willing to provide additional compensation
should Ms. Hermes request it or the court order it. However, the record does not confirm that
Ms. Hermes actually received a $500 check from either Raborn or Mr. Watts. The alleged $500

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conciliatory response suggests that lesser sanctions would have been effective
in spurring diligent prosecution by Raborn.
       3. Aggravating factors
       While the absence of the “requisite factors” warrants reversal in this case,
we also note the absence of any “aggravating” factors. As discussed above, it is
apparent that Mr. Watts, and not Raborn, was responsible for the events leading
to the dismissal. We also conclude that Mr. Watts’s actions do not reflect an
intentional effort to delay the litigation. We now turn to IMS’s assertion that it
has suffered from the “prejudicial effect” of Raborn’s delay.
       First, IMS has not pointed to any specific evidence of prejudice. We have
searched the record in vain for some evidence of prejudice that might reasonably
be linked to Mr. Watts’s failure to attend the October 22 pretrial conference.
While prejudice may be presumed in cases of “unreasonable delay,” we cannot
say that any delay caused by Mr. Watts’s was so unreasonable as to raise a
presumption of prejudice. See Rogers, 669 F.2d at 322 & n.7; compare Porter,
743 F.2d at 272-73 (defendant was prejudiced by delay in employment
discrimination suit because both employees accused of discriminatory acts were
no longer employed by defendant and had moved out of the state). The mere fact
that reinstatement of Raborn’s case will require IMS to “expend funds necessary
to present a defense” is not sufficient to establish prejudice. Id. Therefore, we
find no evidence of prejudice.
                                     III. Conclusion
       A dismissal with prejudice is a sanction typically reserved for the most
flagrant abuses. Because this sanction forever deprives the litigant of the
opportunity to pursue her claim, we have more closely managed the district
court’s discretion under Rule 41(b) than in other contexts. Thus, our reversal is



payment is not discussed in IMS’s brief to this court.

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part of this court’s continuing effort to “strik[e] a balance between the interests
of having cases tried on their merits and of allowing trial courts to resolve them
speedily . . . .” Rogers, 669 F.2d at 323.
      We find that the district court abused its discretion in dismissing Raborn’s
claim effectively with prejudice. Therefore, we REVERSE the order of the
district court and REMAND for proceedings consistent with this opinion.




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