              IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                                              _______________

                                                m 99-30878
                                              Summary Calendar
                                              _______________

                                            LUIS HERRERA,
                                                                  Plaintiff-Appellant,
                                                   VERSUS

                      COMPUTER SCIENCES CORPORATION, et al.,
                                                                  Defendants,

                          COMPUTER SCIENCES CORPORATION,
                                                                  Defendant-Appellee.
                                       _________________________

                               Appeal from the United States District Court
                                  for the Eastern District of Louisiana
                                            (96-CV-3896-B)
                                    _________________________

                                               January 26, 2000

Before SMITH, BARKSDALE, and                              date of October 20, 1997. On October 16,
  PARKER, Circuit Judges.                                 Herrera moved for a continuance, citing
                                                          mental unfitness to appear in court. The trial
JERRY E. SMITH, Circuit Judge:*                           was rescheduled for April 6, 1998. On March
                                                          10, 1998, Herrera again moved for
    Luis Herrera sued for alleged violations of           continuance because his attorney was
title VII, but, after a bevy of delays, the suit          undergoing surgery and was unable to attend.
was dismissed for want of prosecution. He                 The court granted the continuance and set trial
filed a motion for reconsideration of the                 for October 19, 1998.
dismissal under FED. R. CIV. P. 60(b), which
was denied. Finding no reversible error, we                  On October 13, 1998, perhaps predictably
affirm.                                                   by now, Herrera’s counsel sought to withdraw
                                                          because of “irreconcilable conflicts” with
                    I.                                    Herrera. The case was administratively closed
   In May 1997, the district court set a trial            and the trial date continued, but this time with
                                                          instructions to Herrera, before November 16,
                                                          1998, to enroll new counsel, provide medical
                                                          reports illustrating his disability, and submit a
        *
          Pursuant to 5TH CIR. R. 47.5, the court has     required pre-trial order. The court explained
determined that this opinion should not be published      that dismissal would follow a failure to
and is not precedent except under the limited             comply. Herrera’s first response came on
circumstances set forth in 5TH CIR. R. 47.5.4.
November 24, 1998, when two attorneys                  forbidden factors or omitted to consider some
petitioned to enroll as his counsel. The court         important relevant factor.”       Tolliver v.
granted leave, providing thirty days in which          Northrop Corp., 786 F.2d 316, 318 (7th Cir.
CSC might “verify the medical information              1986).
provided by plaintiff,” and provided Herrera
“an additional thirty days” to submit a                                       III.
completed pre-trial order.                                Herrera builds his argument on a mistaken
                                                       quotation. He quotes Clofer v. Perego,
   Herrera read these grants as conjunctive,           106 F.3d 678, 679 (5th Cir. 1997), for the
providing an extra sixty days in which to              proposition that “dismissals with prejudice are
present the pre-trial order, while CSC and the         reserved for the most egregious of cases where
court intended only a thirty-day grant.                the requisite factors of clear delay and
Nevertheless, Herrera failed to meet even this         ineffective lesser sanctions are bolstered by the
self-extended deadline. Not until February 11,         presence of at least one of the aggravating
1999, did he file anything more, this time in          factors.” The actual passage from Clofer says
the form of a motion to “determine the scope           that “dismissals with prejudice are reserved for
of the complaint” and to receive a further             the most egregious of cases, usually cases
extension of time to file the pre-trial order.         where the requisite factors of clear delay and
                                                       ineffective lesser sanctions are bolstered by the
   By judgment entered April 21, 1999, the             presence of at least one of the aggravating
district court denied Herrera’s motions. In the        factors.”     Clofer, id. (emphasis added).
exercise of its inherent power to dismiss claims       Herrera’s misquote obfuscates the fact that
for failure to prosecute, the court rendered           dismissal of a motion with prejudice is
judgment in favor of CSC and against Herrera,          appropriate in cases in which clear delay,
dismissing his claims.                                 ineffective lesser sanctions, and at least one
                                                       aggravating factor are not present. Under our
   On May 3, 1999, Herrera filed a motion for          highly constrained standard of review, we
reconsideration. The court dismissed the               would be hard pressed, should one or more of
motion “without prejudice to reurge.” Herrera          these factors be lacking, to find that the district
resubmitted it on July 21, 1999, following an          court erred.
unsuccessful settlement conference. The court             Nevertheless, we do not find any factor
again denied the motion.                               missing. The story of continuance after
                                                       continuance, year upon year, which is briefly
                       II.                             outlined above, constitutes “clear delay.” That
   Appeal of the denial of a motion for                lesser sanctions have proven ineffective is
reconsideration filed more than ten days after         demonstrated by the fact that the district court,
a grant of judgment is treated as an appeal of         in its patience, cajoled and warned Herrera,
the denial of a motion under FED. R. CIV. P.           and specifically ordered definitive progress at
60(b). Lavespere v. Niagara Mach. & Tool               definitive times, all without effect.
Works, Inc., 910 F.2d 167, 173 (5th Cir.
1990). On appeal of the denial of a rule 60(b)            Finally, the “aggravating factors” of which
motion, “our review is limited to whether the          Clofer speaks “include (1) delay resulting from
[d]istrict [c]ourt abused its discretion in            intentional conduct, (2) delay caused by the
denying the . . . motion.” Ta Chi Navigation           plaintiff personally, and (3) delay causing
(Panama) Corp., S.A. v. United States, 728             prejudice to the defendant.” Id. The court
F.2d 699, 703 (5th Cir. 1984). The denial of           found that the delays in this case redounded
a rule 60(b) motion “does not bring up the             “solely” to the responsibility of the Herrera,
underlying judgment for review.” Id. Thus,             rather than to his old or new counsel.
“[t]he decision under Rule 60(b) is discretion
piled on discretion, and . . . such doubly                New counsel objects to this
discretionary decisions stand unless the judge         characterization. Whether the responsibility is
was very far off baseSSif the judge relied on          “solely” Herrera’s, though, is beside the point.

                                                   2
The record indicates that at least some of the
delays are directly his fault, as when he
claimed a mental state too frail to proceed, but
then refused to be examined by the defendant’s
doctors unless the meeting was recorded. This
is not only “intentional” conduct, but is also
conduct “caused by him personally.”

   It goes without saying, meanwhile, that
years of delay and continued litigation, or the
threat thereof, caused prejudice to CSCSSthe
prejudice of foggy memories, absent witnesses,
and increased legal bills. So, though the
Clofer court did not pretend, as Herrera would
have had it do, that its list of “aggravating
factors” was exhaustive, Herrera nonetheless
seems to have aggravated in every stated way.

   Under these circumstances, we can hardly
find that the district court abused its
substantial realm of discretion in dismissing
this case with prejudice. AFFIRMED.




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