                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit

                      ___________________________

                              No. 00-30006
                            Summary Calendar
                      ___________________________


                            DEITRA BETHEL,

                                                Plaintiff-Appellant,

                                VERSUS


  WOODS HAVEN SENIOR CITIZEN HOME INC.; BARBARA TILEY, RN; H.P.
                             TARPLEY,

                                               Defendants-Appellees.

         ___________________________________________________

            Appeal from the United States District Court
                For the Western District of Louisiana
                              (98-CV-1832
         ___________________________________________________
                            August 9, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

     Deitra Bethel appeals the district court’s order dismissing

with prejudice her wrongful termination action for failure of her

attorney to comply with a scheduling order and pretrial order of

the court.     For the reasons that follow, we reverse and remand.

                                  I.

     Bethel brought this wrongful termination action under Title

VII of the Civil Rights Act of 1964 and 1991 and 42 U.S.C . §


     *
      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this opinion should not be published and is not precedent except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.
20003, et seq.     On September 26, 1998, the district court ordered

the plaintiff to initiate a conference with defense attorneys to

prepare a “plan of work” and submit it for court approval.                   No

conference was held, nor was a plan of work filed.               On April 26,

1999, the district court scheduled a pretrial conference for

December 4, 1999 and ordered that pretrial stipulations be filed

two weeks    prior     the   conference.      The   district   court’s   order

expressly made the plaintiff responsible for preparing and filing

the pretrial stipulations and for arranging a prior meeting between

the parties.     The pretrial stipulations were not filed until the

date of the pretrial conference.           Because the plaintiff failed to

comply    with   the   district    court’s    orders   concerning     pretrial

filings, the case was dismissed with prejudice, pursuant to Federal

Rule of Procedure 16(f).1         Bethel appeals the dismissal.




      1
       Federal Rule of Civil Procedure 16(f) provides that:
            If a party or party’s attorney fails to obey a
            scheduling or pretrial order or if no appearance is made
            on behalf of a party at a scheduling or pretrial
            conference, or if a party or party’s attorney is
            substantially unprepared to participate in the conference,
            or if a party or party’s attorney fails to participate in
            good faith, the judge, upon motion or the judge’s own
            initiative, may make such orders with regard thereto as are
            just, and among others any of the orders provided
            in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition
            to any other sanction, the judge shall require the party
            or the attorney representing the party or both to pay the
            reasonable expenses incurred because of any noncompliance
            with this rule, including attorney’s fees, unless the judge
            finds that the noncompliance was substantially justified
            or that other circumstances make an award of expenses unjust.

      Under Federal Rule of Civil Procedure 37(b)(2)(B), (C), (D), potential
sanctions include, but are not limited to: a preclusion order, an order striking
a pleading, an order staying proceedings, an order of dismissal, default
judgment, and an order of contempt.

                                       2
                                  II.

     We review the district court’s entry of sanctions under FRCP

16(f) for abuse of discretion.        Securities and Exchange Commission

v. First Houston Capital Resources Fund, Inc., 979 F.2d 380, 381

(5th Cir. 1992).   However, because of the harshness of a sanction

of dismissal, we will affirm only where there is a “clear record of

delay   or   contumacious   conduct    by    the   plaintiff”   and   “lesser

sanctions would not serve the best interests of justice.” Price v.

McGlathery, 792 F.2d 472, 474 (5th Cir. 1986) (quoting Rogers v.

Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982)); John v. Louisiana,

828 F.2d 1129, 1131 (5th Cir. 1987); Callip v. Harris County Child

Welfare Department, 757 F.2d 1513, 1519            (5th Cir. 1985).   “Absent

such a showing, the trial court’s discretion is limited to the

application of lesser sanctions designed to achieve compliance with

court orders and expedite proceedings.”              Bann v. Ingram Micro,

Inc., 108 F.3d 625, 627 (5th Cir. 1997).

     In most cases where this court has affirmed a sanction of

dismissal, at least one of the following three aggravating factors

is present: “(1) delay caused by [the] plaintiff himself and not

his attorney; (2) actual prejudice to the defendant; or (3) delay

caused by intentional conduct.”           Price, 792 F.2d at 474; see also

Callip, 757 F.2d at 1519.    Although a party is bound by the acts of

his attorney “and may suffer dismissal ... if his counsel is

chargeable with clear delay or contumacy, the proper punishment for

                                      3
an inept lawyer is to assess fines, attorney’s fees, or costs

against the lawyer without harming the client.”               John, 828 F.2d at

1132 (emphasis added).



                                         III.

     We agree with Bethel that the record in this case does not

support a sanction of dismissal.              There is no clear record of delay

or contumacious conduct by the plaintiff.                  In John, 828 F.2d at

1131, we found no clear record of delay or contumacy where the

plaintiff was late in filing his response to discovery requests, in

submitting a pretrial order, and in submitting other pretrial

filings ordered by the court.             We found the few months of delay

caused by the misconduct of the plaintiff’s attorney insufficient

justification       for    dismissal,     particularly      where    the   conduct

resulted from negligence rather than bad faith or persistent

disobedience.       Id. at 1131-32.

     For      conduct     to   be   contumacious,     it    must    be   more   than

negligence,      “regardless        of   how    careless,    inconsiderate,       or

understandably exasperating;” rather, the conduct must be “stubborn

resistance to authority.” McNeal v. Papasan, 842 F.2d 787, 792 (5th

Cir. 1988).2       In McNeal, we found insufficient evidence in the

record from which to determine whether plaintiff’s conduct was

contumacious.       Id. at 792-93.       In Bethel’s case also, we find the

record to be insufficient in this regard.               Likewise, the district


     2
         McNeal involved a dismissal sanction under FRCP 41(b) rather than FRCP
16(f).    However, our analysis on appeal is the same. Price, 792 F.2d at 474.

                                          4
court’s opinion contains no finding of bad faith or intentional

disobedience by the plaintiff.

       We have, of course, affirmed the sanction of dismissal in a

number of cases. The facts in those cases are distinguishable from

those in the instant case.          In Bluitt v. Arco Chemical Co., 777

F.2d 188 (5th Cir. 1985), the plaintiff failed to comply with three

prior district court orders to more fully answer the defendant’s

interrogatories.      The court also expressly warned the plaintiff

that further failure to comply would result in dismissal.                   Id. at

190.     The district court made specific findings of bad faith and

evasiveness by the plaintiff and her attorney, and found that

lesser    sanctions    would   be   ineffective          because   plaintiff    had

disregarded its prior orders.         Id. at 191.

       In Price, 792 F.2d at 472, we affirmed dismissal sanctions

where the plaintiff twice failed to comply with a pretrial filing

order, was warned by the district court, and then failed to appear

at the pretrial conference.           Prior to dismissing the case, the

district court had stayed the proceedings, dismissed the case, and

then   reinstated     it;   thus,   the       district    court    concluded   than

dismissal was the only appropriate sanction.                Id. at 475.

       Finally, in Callip, 757 F.2d at 1519-20, the district court

dismissed the case after plaintiff missed a filing deadline in a

pretrial order.         However, before missing this deadline, the

plaintiff had failed to comply with at least nine deadlines imposed

by rules or court orders, despite being provided with additional

time to comply on at least five occasions.                Id. at 1519-20.

                                          5
      In addition to the absence of a clear record of delay or

contumacious conduct by the plaintiff in this case, the district

court’s order of dismissal does not indicate that lesser sanctions

were considered.        “[E]ven if the record teems with instances of

delay or other egregious behavior, a district court cannot impose

the extreme sanction of dismissal ‘unless [it] first finds that a

lesser sanction would not have served the interests of justice.’

A silent record is inadequate.             We shall not infer that the

district      judge   weighed   alternative   sanctions;    he    must   have

‘expressly considered’ them.”        Securities and Exchange Commission,

979 F.2d at 382 (quoting McNeal, 842 F.2d at 793 and Callip, 757

F.2d at 1521).

      Even without express consideration by the district court of

alternate sanctions, we may still affirm if the record indicates

that the district court had employed lesser sanctions prior to

dismissal which proved to be futile.        See Callip, 757 F.2d at 1521;

see also McNeal, 842 F.2d at 793 (no lesser sanctions imposed

before plaintiff’s case dismissed). However, we find no indication

from the record that the district court in today’s case imposed

prior sanctions against Bethel before dismissing her complaint.

      Finally -- as to the existence of aggravating factors -- the

record fails to reveal that any delay caused by plaintiff’s failure

to   comply    either   prejudiced   the   defendant   or   was   caused   by

intentional rather than negligent behavior on the part of counsel.

There is no evidence that the delay can be attributed to Bethel

herself rather than her attorney.

                                      6
       We do not condone the conduct of Bethel’s attorney in this

case and we understand the frustration of the busy district court

judge in dealing with dilatory, irresponsible counsel.           However,

because the record does not support a sanction of dismissal, we

must   reverse   the   district   court’s   order   dismissing   Bethel’s

complaint.   We remand to the district court to consider imposition

of a lesser appropriate sanction and for further proceedings.

       REVERSED and REMANDED.




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