     Case: 10-60551     Document: 00511545455         Page: 1     Date Filed: 07/20/2011




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

                                                                            FILED
                                                                           July 20, 2011

                                       No. 10-60551                        Lyle W. Cayce
                                                                                Clerk

MYRTLE LYNN PREWITT,

                                           Plaintiff - Appellant Cross-Appellee
v.

MISSISSIPPI STATE UNIVERSITY,

                                           Defendant - Appellee Cross-Appellant



                  Appeals from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 1:06-CV-338


Before JOLLY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
        Myrtle Lynn Prewitt appeals the dismissal without prejudice of her
complaint alleging, under various statutes, that Mississippi State University
discriminated against her based upon her race and sex. Mississippi State
University cross-appeals. Both parties contend that the practical and legal effect
of the order is dismissal with prejudice because the complaint, if refiled, would




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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be time-barred because the applicable statute of limitations has already expired.1
We find that the practical effect of the order is dismissal with prejudice.
Consequently, we VACATE the district court’s order and REMAND the case for
further proceedings.
                                              I.
                                              A.
       Myrtle Lynn Prewitt is an Assistant Research Professor in the Department
of Forest Products at Mississippi State University (MSU). Prewitt is an African
American female. On December 13, 2006, Prewitt filed a complaint against
MSU alleging violations of the Equal Pay Act and Title VII of the Civil Rights
Act of 1964. She specifically alleged that a white male was being paid more to
perform substantially the same tasks. On July 21, 2008, MSU filed its first
motion for partial summary judgment. Prewitt’s response, which was filed on
August 25, 2008, asserted a retaliation claim for the first time—that MSU had
retaliated against her for complaining about discrimination by cutting funding
for 50% of her salary and informing her that she had one year of funding left for
her employment.
       On January 7, 2009, the district court, in ruling on the motion for
summary judgment, entered an order, which held that Prewitt’s retaliation
claim was barred because it did not appear anywhere in her complaint or Equal
Employment Opportunity Charge. The order also granted summary judgment
to MSU on Prewitt’s Equal Pay Act claims occurring prior to December 13, 2003
and on her Title VII claim for salary disparity. The court held that Prewitt’s

       1
         Prewitt also appeals issues not embodied within the June 17, 2010 order that
dismissed Prewitt’s claim. These issues include: (1) whether the district court erred in
denying Prewitt’s motion to disqualify MSU’s attorneys; and (2) whether the district court
erred in rejecting Prewitt’s market forces/salary compression defense. We decline to decide
these issues as doing so is unnecessary in the light of our holding. Because the district court
order, which we find is a final judgment of the district court, is vacated and remanded, these
issues are preserved for possible subsequent appeal.

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Title VII hostile work environment claim survived summary judgment. Thus the
only matters to be tried were Prewitt’s Equal Pay Act with respect to claims
arising after December 13, 2003 and her Title VII claims, limited to the issue
that she was forced into a hostile work environment.
      On May 28, 2009, the judge entered a pretrial order reflecting a pretrial
conference that provided an overview of the case by setting forth information
about the claims, facts, and anticipated witnesses. The May 28 order stated that
Prewitt had two claims that were pending at the time: (1) sex-based wage
discrimination in violation of the Equal Pay Act; and (2) a hostile work
environment in violation of Title VII of the Civil Rights Act of 1964. Nearly six
months later, on November 29, 2009, Prewitt moved to amend the pretrial order
of May 28, 2009. In the amendment she asserted that the district court erred by
asserting that her retaliation claim was not included in her EEOC charge or
complaint and, also, that the Lilly Ledbetter Fair Pay Act required the
reinstatement of her Title VII disparate compensation claims. The district court
authorized Prewitt to file a motion for reconsideration of the earlier order
dismissing her Title VII claims and rejecting her retaliation claim.
      On January 7, 2010, Prewitt filed a motion for reconsideration, in which
she asserted that the Fair Pay Act revived the Title VII compensation claims
that the court had dismissed. The district court granted her motion and allowed
Prewitt to restate her Title VII compensation claims but it denied her motion to
allow a retaliation claim. The district court gave Prewitt and MSU a deadline
for amending the pretrial order to reflect this ruling. The parties were unable
to reach an agreement by that date. The court referred the issue to a magistrate
judge. On May 14, 2010, Prewitt appealed to the district judge an order by the
magistrate judge, which prevented her from including her retaliation claims,
which the district judge had just dismissed, in the Pretrial Order. On June 7,
2010, the district judge dismissed Prewitt’s appeal. In response, Prewitt filed

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yet another motion for reconsideration of her retaliation claim, which led to the
court’s June 17, 2010 order dismissing Prewitt’s complaint in its entirety, but
without prejudice. This is the order appealed, which is now before us.
                                               B.
       We first will outline, but only by highlighting, Prewitt’s conduct that
formed the basis for the district court’s decision to dismiss without prejudice her
complaint.2 The district court noted that Prewitt had been represented by three
sets of counsel and also had represented herself pro se for nearly a year. While
proceeding pro se, Prewitt submitted to the court various documents prepared
by her attorney brother, George Dunbar Prewitt, Jr. (“Brother”) who was not an
attorney of record in the case at that time. The court warned Prewitt and
Brother several times that he must either cease participating in the action or
enter an appearance as counsel. These requests were ignored several times.
       Further, the court observed that Prewitt had delayed discovery and the
trial date several times. The district court had repeatedly forgiven Prewitt’s
missed deadlines for filing and motions, and it had considered items that she
had filed several months late. Prewitt had successfully moved the court to refer
the matter to a settlement conference that was ultimately unsuccessful. She
also moved for, and was granted, an extension of a trial date so she could spend
time with a sick relative.           She thrice had requested certification of an
interlocutory appeal, the rationale of which baffled the district court. Prewitt’s
filings at times were confusing. The district court provided in its order examples
of “nonsensical arguments [mixed] with legitimate claims.” The record is replete
with motions, orders, and opinions generated by her filings. Further, several




       2
        The district court’s opinion sets forth at length the details of Prewitt’s conduct, which
we summarize here. See Prewitt v. Mississippi State University, No. 1:06CV338, (N.D. Miss.
June 17, 2010).

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claims now pursued by Prewitt were not properly or timely filed, which is the
conduct undergirding the June 17, 2010 dismissal order.
      Because of the confusion created by Prewitt’s conduct, the June 17, 2010
order of the district court concluded that the case “has become an amalgamation
of mismatched and vague theories” and dismissed the complaint to allow the
plaintiff to start over with a new complaint. The district court noted that to
start over might prejudice Prewitt because she will have to wait longer to
adjudicate her claims but beginning anew justified this downside for Prewitt
because “she is responsible for the delays in this matter and thus brought that
prejudice on herself.”
                                        II.
      All parties agree that we have appellate jurisdiction over the dismissal of
Prewitt’s complaint in its entirety and we agree that this dismissal is a final
judgment that satisfies the requirements of 28 U.S.C. § 1291. See Linn v.
Chivatero, 714 F.2d 1278, 1280 (5th Cir. 1983).
      We thus turn to the argument of MSU that dismissal was warranted as a
sanction and consider whether such a strong sanction is appropriate in the light
of the troublesome litigation practices engaged in by the Prewitts. We review
dismissals with prejudice under an abuse of discretion standard. Gonzalez v.
Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir. 1980). “Dismissal with
prejudice is [ ] an extreme sanction that deprives a litigant of the opportunity to
pursue his claim.’” Id. Dismissal with prejudice is “warranted only where a clear
record of delay or contumacious conduct by the plaintiff exists and a lesser
sanction would not better serve the interests of justice.” Id. (internal citations
and quotation marks omitted).
      We do not dispute that Prewitt’s litigation techniques have been unduly
burdensome on MSU and on the court. Prewitt’s changes of counsel, filing of
inappropriate motions, untimely raising of issues, and the actions of her current

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counsel have been vexatious. However, there is no indication in the record that
the district court intended to impose the dismissal without prejudice as a
sanction. We are sure the district court was aware that it should apply other
sanctions to address a party’s misconduct before imposing dismissal as a
sanction. See Silas v. Sears, Roebuck & Co., Inc., 586 F.2d 382, 385-87 (5th Cir.
1978). And it is for sure that the district court did not intend a dismissal with
prejudice, which we have held has occurred here. Our understanding of the goal
sought by the district court was the proper management of what it perceived as
a tumbled-jumbled case, so that clear claims and clear facts could be presented
for a clear decision, first from the court, and then, if necessary and appropriate,
from a jury.
      With these objectives in mind, the district court may wish to consider other
means of managing this case—short of dismissal except as a last resort, which
would require that the plaintiff have specific and reasonable notice. This might
include ordering the parties to amend the pleadings for purposes of clarity in the
light of the history of the case or the court might amend the pretrial order to
reflect the court’s understanding of the claims to be tried. See Walker v.
Graham, 32 F. 3d 566, *1 (5th Cir. 1994) (unpublished) (noting that the district
court ordered the lawsuit dismissed with prejudice unless the plaintiff amended
his pleadings within twenty days); Silas, 586 F.2d at 385, n. 3 (“Lesser sanctions
which might be appropriate, dependent upon the circumstances of the case at
hand, are conditional orders of dismissal or various types of disciplinary action
directed at the erring attorney, including perhaps a reprimand by the court, a
fine, a finding of contempt, or a prohibition against practicing before the court
for a specified period of time.”)    We are certain that the district court is
resourceful, diligent, and patient, and, on remand will proceed appropriately
under challenging circumstances. The judgment is VACATED and the case is
REMANDED.

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                            No. 10-60551

                                           VACATED and REMANDED.




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