              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                          ___________________

                             No. 96-40281
                           Summary Calendar




ELIZABETH ELIZONDO,
                                     Plaintiff-Counter
                                     Defendant-Appellee,

     versus

THE PILGRIM’S GROUP, INC.;
D. L. TOURS, INC., TEXAS,
                                     Defendants-Counter
                                     Claimants-Appellants.


        ________________________________________________

      Appeal from the United States District Court for the
                   Southern District of Texas
                          (B-95-CV-162)
        ________________________________________________
                         October 1, 1996

Before GARWOOD, JOLLY and DENNIS, Circuit Judges.*

GARWOOD, Circuit Judge:

     Plaintiff tourist sued two Arizona travel service corporations

in state court for unspecified damages arising from injuries

sustained in a bus accident in Spain.    The defendant corporations

removed to federal court, alleging that the amount in controversy

exceeded $50,000 excluding interest and costs.    The corporations


*
     Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
also filed a motion to transfer the case to Arizona.                Plaintiff

requested a remand to state court, stating that her claim involved

no federal question and that her damages were less than the

jurisdictional amount.       The parties agreed to a proposed order for

remand and submitted it to the magistrate judge. While the motions

to remand and transfer were pending, the magistrate judge held a

pretrial conference at which counsel for the defendants failed to

appear.    The magistrate judge denied both the remand and transfer

motions and entered its scheduling order, setting separate dates

for the final pretrial conference, jury selection, and trial.

Counsel for the defendants subsequently failed to appear at the

final pretrial conference.        Upon a motion by the plaintiff, the

magistrate judge entered judgment for plaintiff in the amount of

$75,000.   The defendant corporations bring this appeal.

                     Facts and Proceedings Below

     On August 3, 1995, plaintiff Elizabeth Elizondo1 (Elizondo),

a resident and citizen of Texas, filed suit in Texas state court

against    The   Pilgrim’s     Group,       Inc.,   and   D.L.   Tours,   Inc.

(collectively    Pilgrims),    both     Arizona     corporations.    Elizondo

sought damages arising from a bus accident that occurred in Spain



1
     At various stages of these proceedings, papers filed with the
court, including papers filed by counsel for plaintiff, have
alternately spelled plaintiff’s name “Elizando” and “Elizondo.”
See, e.g., Plaintiff’s Original Complaint (Elizando); Plaintiff’s
Motion To Remand (Elizondo).     Final judgment was entered for
“Elizondo.”

                                        2
while she was on a tour of Spanish religious sites arranged by

Pilgrims.      Elizondo’s      complaint          alleged    that    Pilgrims     held

themselves    out   to    be   experts       in    world    travel     arrangements.

Elizondo alleged that she purchased a tour package arranged by

Pilgrims that was to include visits to sites in Spain and France

with   transportation      provided     by     various      entities       selected   by

Pilgrims.    According to Elizondo, she was “seriously injured” when

a tour bus on which she was a passenger tipped over.                          Elizondo

further alleged that the bus accident, which occurred when the tour

group was en route from Barcelona to Lourdes, killed several tour

participants    and      injured    many       others,       including       Elizondo.

According to Elizondo, Pilgrims did not “carefully select tour

elements” and this failure was evidenced by the “inebriated,

grossly negligent        driver”   of    the      tour   bus.       Elizondo    sought

unspecified damages2 for breach of contract, violations of the

Texas Deceptive Trade Practices Act (DTPA), personal injuries and

medical expenses, mental anguish, and lost employment time.                           In

addition,    Elizondo     sought    punitive         damages,       DTPA    penalties,

attorneys’ fees, and court costs.

       On October 2, 1995, Pilgrims removed the case to the United

States District Court for the Southern District of Texas.                             The

notice of removal alleged that the defendants were both Arizona

2
     Texas law requires that complaints seeking unliquidated
damages not state a specific amount.      Tex. R. Civ. P. 47(b);
Capitol Brick, Inc. v. Fleming Mfg. Co., 722 S.W.2d 399, 401 (Tex.
1986).

                                         3
corporations with their principal places of business in that state.

The   notice     of   removal   further   alleged   that   the   amount   in

controversy, excluding costs and interest, exceeded $50,000, so

that the requirements for diversity of citizenship jurisdiction

were met.      See 28 U.S.C. §§ 1332, 1441.    The parties subsequently

consented to a trial by magistrate judge and set the date for the

initial pretrial conference.

      On October 30, 1995, defendants filed a motion to transfer the

case to the United States District Court for the District of

Arizona on the grounds that Arizona was more convenient for both

the parties and the witnesses and that Arizona was the judicial

district with the most significant ties to the litigation.           See 28

U.S.C. § 1404(a).

      On November 8, 1995, while defendants’ motion to transfer was

still pending, Elizondo filed a motion to remand the case to state

court.   Elizondo alleged that she had filed her complaint in a

state court of limited jurisdiction “because of the small amount of

money involved.”3      Elizondo further alleged that the case involved

“damages of less than $50,000,” but did not otherwise alter her

original complaint.      The next day counsel for defendants notified

the court that defendants would submit an “Agreed Order To Remand.”

Another pretrial conference was set for November 21, 1995.



3
     The state court had jurisdiction up to $100,000.            Tex. Govt.
Code § 25.0003(c)(1).

                                      4
      Counsel for defendants failed to appear at the November 21

pretrial conference.       The magistrate judge signed the scheduling

order which was in turn mailed to counsel for both parties.              The

scheduling order, in addition to setting deadlines for discovery

and motions, set the final pretrial settlement conference date for

January 25, 1996; set the final pretrial conference date for

February 1, 1996; set jury selection date for February 2, 1996; and

set jury trial date for February 12, 1996.      The transfer and remand

motions were denied on January 4, 1996.

      Counsel for defendants again failed to appear at the January

25 pretrial settlement conference. The magistrate judge instructed

counsel for Elizondo to send a copy of the Joint Pretrial Order to

counsel for defendants for his participation. On February 1, 1996,

the pretrial order was received by the court.

      Once again, counsel for defendants failed to appear at the

February 1 Final Pretrial Conference.         According to the record,4

counsel for Elizondo initially moved for a default judgment, then

chose to waive her right to a jury trial and proceeded to present

the case to the magistrate judge on the merits, calling Elizondo as

a witness and presenting three documentary exhibits to the court.

The   magistrate   judge   ordered   final   judgment   for   Elizondo   on

February 1, 1996, in the amount of $75,000, plus costs and post-

judgment interest. Final judgment was entered on February 8, 1996.


4
      No transcript was made of the February 1 proceedings.

                                     5
     On February 14, 1996, defendants moved for a new trial, which

was subsequently denied.

     Defendants appeal the denial of their motion to transfer, the

denial of the proposed order to remand, and the magistrate judge’s

decision to conduct the trial on the merits prior to the scheduled

date.

                            Discussion

I.

     The preliminary question presented is whether the district

court should have granted the plaintiff’s motion to remand the case

to Texas state court because the amount in controversy was below

the threshold amount required to support diversity jurisdiction

under 28 U.S.C. 1332(b).        The legal basis for the magistrate

judge’s implicit finding of jurisdiction under 28 U.S.C. § 1332(b)

is subject to de novo review.    Harvey Const. Co. v. Robertson-Ceco

Corp., 10 F.3d 300, 303 (5th Cir. 1994).    Although ordinarily the

removing party bears the burden of establishing the basis for

federal jurisdiction, see Asociacion Nacional de Pescadores a

Pequena Escala O Artesanales de Colombia (ANPAC) v. Dow Quimica

S.A., 988 F.2d 559, 563 (5th Cir. 1993), cert. denied, 510 U.S.

1041, 114 S.Ct. 685 (1994), the district court also “has a duty to

make the inquiries necessary to establish its own jurisdiction,”

Foret v. Southern Farm Bureau Life Ins. Co., 918 F.2d 534, 537 (5th

Cir. 1990).   Given the procedural posture of this case, it is the


                                   6
defendant removers who, as losers below, object to the denial of

the motion to remand.

     A.

     Resolution of this issue is aided by this Court’s decisions in

ANPAC, 988 F.2d 559, and Marcel v. Pool Co., 5 F.3d 81 (5th Cir.

1993).     In ANPAC, as here, Texas law prohibited the original

complaint from specifying the precise amount of damages.   ANPAC, 5

F.3d at 562 & n.1.   The ANPAC defendant removed, asserting only the

parties’ citizenship and that the amount in controversy exceeded

$50,000.    Id.   The ANPAC plaintiffs filed a motion to remand,

attaching an affidavit from their attorney stating that there was

no individual plaintiff or claimant who had suffered a loss greater

than $50,000. Id. This Court reversed the district court’s denial

of the motion to remand, noting that the alleged injuries were

unlikely to meet the jurisdictional amount.5    Id.

     This Court’s ANPAC decision reiterated the test set forth in

St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289,

58 S.Ct. 586, 590 (1938):

     “[I]f, from the face of the pleadings, it is apparent, to
     a legal certainty, that the plaintiff cannot recover the
     amount claimed or if, from the proofs, the court is
     satisfied to a like certainty that the plaintiff never
     was entitled to recover that amount, and that his claim
     was therefore colorable for the purpose of conferring

5
     The alleged personal injuries were “skin rashes” and the
alleged economic injuries to the individual Colombian fisherman
were extremely unlikely to have amounted to the required $50,000.
Id. at 565.

                                  7
     jurisdiction, the suit will be dismissed.”

The ANPAC court acknowledged that “a plaintiff may not defeat

removal by subsequently changing his damage request[] because post-

removal events cannot deprive a court of jurisdiction once it has

attached,” but held that the affidavit supplied by the plaintiffs’

attorney merely clarified the original complaint that, because of

the Texas rule, was previously ambiguous as to the jurisdictional

amount.    ANPAC, 988 F.2d at 565 (emphasis in original); St. Paul

Mercury, 303 U.S. at 295, 58 S.Ct. at 593 (“[S]ubsequent reduction

of   the   amount   claimed   cannot   oust   the   district   court’s

jurisdiction.”).

     The removing party in ANPAC also failed to state facts in

support of the jurisdictional amount in its notice of removal.

ANPAC, 988 F.2d at 565 (noting that the notice of removal “merely

states, without any elaboration, that ‘the matter in controversy

exceeds $50,000 exclusive of interest and costs’”).      Finally, the

ANPAC court made the following conclusion:

     “[A]t least where the following circumstances are
     present, [the removing party’s] burden has not been met:
     (1) the complaint did not specify an amount of damages,
     and it was not otherwise facially apparent that the
     damages sought or incurred were likely above $50,000; (2)
     the defendants offered only a conclusory statement in
     their notice of removal that was not based on direct
     knowledge about the plaintiffs’ claims; and (3) the
     plaintiffs timely contested removal with a sworn,
     unrebutted affidavit indicating that the requisite amount
     in controversy was not present.”

Id. at 566.


                                  8
     In Marcel, this Court revisited the issue raised by ANPAC.

Observing the factual distinctions between the two cases, the

Marcel court considered the conditions set forth in ANPAC.        First,

the court noted:

     “While in the present case, as in ANPAC, the complaint
     did not, and indeed, could not, specify an amount of
     damages, it is facially apparent here that, based upon
     the complaint and viewing the case as of the time of
     removal, the damages easily could exceed $50,000. In
     fact, any one of several injuries alleged——not to mention
     the requested exemplary damages——alone could have topped
     that amount . . . .”

Marcel, 5 F.3d at 84 (emphasis in original).           Second, the court

observed that, unlike the defendant in ANPAC, the defendant in

Marcel buttressed its notice of removal by listing the types of

injury plaintiff claimed.      Although the facts in the notice of

removal   were   not   detailed,   the   defendant’s   response   to   the

plaintiff’s motion to remand provided a more detailed basis from

which the court was able to assess whether the claim met the

jurisdictional threshold. Id. at 84-85.       Finally, as in ANPAC, the

plaintiff in Marcel offered to stipulate that the claim was for

less than the jurisdictional amount, but the court considered the

stipulation to be rebutted by other evidence presented.       Id. at 85.

     B.

     St. Paul Mercury, ANPAC, and Marcel govern the result in this

case.   Under the rationale of these cases, it is apparent that the

magistrate judge properly denied Elizondo’s motion to remand.           As



                                    9
in Marcel, an examination of the conditions set forth in ANPAC

leads to the conclusion that none of them are sufficiently present

to require a remand to state court.             First, although Elizondo’s

original complaint contained no specific amount of damages, her

allegations      could    easily    have     exceeded    the   jurisdictional

threshold.    Elizondo’s complaint was not limited to expectation

damages for breach of contract regarding her unrefunded tour

package, but rather included claims for her “serious injur[ies],”

attorneys’ fees, DTPA penalties, lost employment time, mental

anguish, medical expenses, and, significantly, punitive damages.

The factual context of Elizondo’s claims involved an allegedly

inebriated tour bus driver whose gross negligence caused several

deaths and multiple injuries.           As in Marcel, some of these claims,

alone, could have reached the jurisdictional threshold.

      ANPAC’s second condition is likewise unsatisfied.                Although

the   defendants’        notice    of     removal    recited    the     general

jurisdictional amount, both Elizondo’s original complaint and the

defendants’ subsequent transfer motion and accompanying affidavits

provided sufficient detail for the magistrate judge to conclude the

claim presented a potential for recovery far in excess of $50,000.

      Finally,    ANPAC’s   third    condition——an      unrebutted    affidavit

indicating an insufficient amount in controversy——cannot be said to

be present here. Although the parties submitted a proposed “Agreed

Order To Remand” apparently conceding the monetary limits of


                                        10
Elizondo’s     claims,   the   documents       in   the   magistrate   judge’s

possession at the time of the denial belied such a stipulation.

This type of postremoval shenanigans is precisely the conduct

precluded by St. Paul Mercury.      St. Paul Mercury, 303 U.S. at 292,

58 S.Ct. at 592 (“[T]hough, as here, the plaintiff after removal,

by stipulation, by affidavit, or by amendment of his pleadings,

reduces the claim below the requisite amount, this does not deprive

the court of jurisdiction.”). ANPAC should not be read as obliging

a   district     court   to    consider     postremoval       affidavits   or

stipulations; rather, ANPAC involved “an unusual case” in which the

complaint left the jurisdictional amount ambiguous.             See Marcel, 5

F.3d at 85.      In the absence of such an ambiguity, postremoval

stipulations    and   affidavits   are    of    questionable    sufficiency.6

Here, as in Marcel but not in ANPAC, the original complaint

adequately evinced an amount in controversy in excess of the

jurisdictional threshold and obviated the need to consider material

outside of the pleadings, the notice of removal, and the transfer

motion.

     Accordingly, we conclude that, at the time of removal, at

least $50,000 was in controversy.         The subsequent proposed “Agreed


6
     Needless to say, plaintiff’s loyalty to her limited damage
concession in the “Agreed Motion To Remand” waned at the prospect
of receiving a $75,000 judgment.      See Appellee’s Brief at 5
(arguing that a federal court “must itself endeavor not to permit
a circumvention of removal jurisdiction”). Although not properly
considered in determining removal jurisdiction, it nevertheless
demonstrates the diminished value of postremoval affidavits.

                                    11
Order To Remand” did not defeat removal, and the magistrate judge

was correct in denying the motion to remand.

II.

      The next issue raised by defendants concerns their motion to

transfer pursuant to section 1404(a).7   Section 1404(a) provides:

      “For the convenience of the parties and witnesses, in the
      interest of justice, a district court may transfer any
      civil action to any other district or division where it
      might have been brought.”

“‘A motion to transfer venue is addressed to the discretion of the

trial court and will not be reversed on appeal absent an abuse of

discretion.’”   Gundle Lining Const. Corp. v. Adams County Asphalt,

Inc., 85 F.3d 201, 209 n.5 (5th Cir. 1996) (quoting Peteet v. Dow

Chem., 868 F.2d 1428, 1436 (5th Cir.), cert. denied, 493 U.S. 935,

110 S.Ct. 328 (1989)).     We have long emphasized the subjective

nature of the district court’s inquiry and accordingly afford a

presumption of correctness to its decision.    See, e.g., Howell v.

Tanner, 650 F.2d 610, 616 (5th Cir. 1981) (“Appellate review is

limited because it serves little purpose to reappraise such an

inherently subjective decision.”), cert. denied, 456 U.S. 918, 102

S.Ct. 1775 (1982).

      The magistrate judge, when considering defendants’ section



7
     On October 30, 1995, defendants filed a motion styled "Motion
To Transfer pursuant to 28 U.S.C. § 1401(a)." Section 1401(a), of
course, deals with stockholder derivative actions.           Their
memorandum in support of the motion, however, makes clear that the
motion sought a transfer pursuant to section 1404(a).

                                 12
1404(a) motion to transfer was entitled, indeed required, to

consider “all relevant factors” that might bear on the convenience

of the forum.      These factors included not only the situs of the

defendants’    corporate     offices        and   witnesses,     but   also    the

plaintiff's choice of forum, potential delays, prior consent by the

parties, and the proper allocation of judicial resources.                Peteet,

868 F.2d at 1436.        After    a    thorough review of the record, we

conclude that the magistrate judge did not abuse his discretion.

Although defendants, as Arizona corporations, argue that the venue

is inconvenient,8 other factors——such as Elizondo’s choice of forum,

the    potential   for   delay,       the   parties’   consent    to   trial   by

magistrate judge, and the progress made in the litigation prior to

the defendants’ transfer motion——are sufficient to support the

magistrate judge’s determination that venue should remain in the

Southern District of Texas.

III.

       The final issue presented is whether the magistrate judge

erred by conducting a trial on the merits when defendants failed to

appear at the February 1 Pretrial Conference.                  As a preliminary

8
     Defendants did not move for transfer or dismissal pursuant to
28 U.S.C. § 1406(a). Section 1406(a) allows a district court to
transfer or dismiss a case brought in an improper venue.        The
general venue statute is 28 U.S.C. § 1391. We need not address
whether venue was proper in the Southern District of Texas because
defendants have raised no such objection.        Speaking broadly,
section 1404(a) applies when venue is properly laid in the original
district court and section 1406(a) applies in all other situations.
In the former situation, the district court is entitled to exercise
its discretion, in the latter it is not.

                                        13
matter, it should be noted that it is not entirely clear whether

the magistrate judge entered default judgment pursuant to Rule 55,9

Rule 16(f), or simply chose to accelerate the date for trial on the

merits by eleven days as some other form of sanction.        Because the

failure of counsel for defendants to appear at the February 1

Pretrial Conference provided the impetus for the magistrate judge’s

order, however, the propriety of the order is most appropriately

addressed by a Rule 16(f) analysis.

     A.

     Rule 16 provides a trial judge with broad discretion to use

pretrial conferences to expedite actions, discourage wasteful and

protracted   pretrial   activities,    improve   the   quality   of   trial

preparation, and facilitate settlement. Fed. R. Civ. P. 16(a). In

order to ensure the trial judge has the ability to achieve the

objectives set forth in Rule 16(a), Rule 16(f) provides that a

court may impose certain sanctions:

     “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).


9
     Under Rule 55(b)(2), of course, the magistrate judge would
have been required to give three days notice of a default judgment.
Fed. R. Civ. P. 55(b)(2). Accordingly, the “default judgment” must
be justified, if at all, as a sanction under Rule 16(f).

                                  14
Fed. R. Civ. P. 16(f).      This Court reviews a lower court’s entry of

sanctions under Rule 16(f) for an abuse of discretion.                 See

Securities and Exchange Comm’n v. First Houston Capital Resources

Fund, Inc., 979 F.2d 380, 381-82 & n.3 (5th Cir. 1992).

     In First Houston, this Court reviewed the general standard by

which   a   trial   judge   should   assess   the   appropriateness   of   a

dismissal or default judgment sanction.          Observing the discretion

afforded a trial judge, we noted that “courts ‘have generally

permitted it only in the face of a clear record of delay or

contumacious conduct by the [party].’”         Id. at 382 (quoting Durham

v. Florida East Coast Ry Co., 385 F.2d 366, 368 (5th Cir. 1967)).

     There are, however, two remaining prerequisites to the award

of a dismissal or default judgment sanction.          First, “even with a

clear record of delay or contumacious conduct,” a trial judge

cannot impose the sanction of a dismissal or a default judgment

“unless the court first finds that a lesser sanction would not have

served the interests of justice.”         McNeal v. Papasan, 842 F.2d 787,

793 (5th Cir. 1988).        Second, the trial judge must “‘expressly

consider[] alternative sanctions and determine[] that they would

not be sufficient.’” Id. (quoting Callip v. Harris County Child

Welfare Dep’t, 757 F.2d 1513, 1521 (5th Cir. 1985)).             In other

words, the trial judge must make findings on the record that

alternative sanctions would not enable the court to accomplish the

objectives of Rule 16(a), or, absent such findings, the record must


                                     15
demonstrate that the trial court employed lesser sanctions that

ultimately proved fruitless.           Callip, 757 F.2d at 1521.

     B.

     Considering the first element, there is insufficient evidence

of the type of contumacious behavior envisioned by our prior cases

addressing   the     use    of   dismissals   and     default    judgments   as a

sanction.    Although the magistrate judge may have been justifiably

provoked by the three consecutive, unexcused absences of Mr.

Pyland,    counsel    for    defendant,      absent    findings    of   delay   or

contumacious       conduct       the   drastic        sanction     imposed      was

inappropriate. The only incidents of improper behavior on the part

of Mr. Pyland were his unexcused absences from pretrial conferences

on November 21, 1995, January 25, 1996, and February 1, 1996.

There is evidence in the record that Mr. Pyland's absences were

inadvertent and, “while careless, inconsiderate, and understandably

exasperating to a conscientious trial judge, [the absences] more

closely approximate[] the kind of negligence that does not warrant

[a default judgment] than the stubborn resistance to authority that

does.”    John v. Louisiana, 828 F.2d 1129, 1131-32 (5th Cir. 1987).

     Significantly, there is no evidence in the record of delay

caused by Mr. Pyland’s absences; the dates set by the scheduling

order were not compromised prior to February 1 and his absence on

that date would not have precluded his attendance and participation

at jury selection the next day.         The trial itself was not scheduled


                                        16
to begin until February 12.   The record lacks any indication that

Mr. Pyland’s absence threatened the timeliness of the action or

that the magistrate judge was even concerned in this regard.          It is

therefore difficult to see how delay of the kind that justifies the

imposition of such a drastic sanction was present.           A case-ending

sanction pursuant to Rule 16(f) is not warranted when the rights of

the party in compliance are not prejudiced, the progress of the

case has not been delayed, and the noncompliant party has not acted

with brazen defiance to the court’s authority. See, e.g., Brinkman

v. Abner, 813 F.2d 744, 749 (5th Cir. 1987) (affirming dismissal

where, after warning, attorney defied presiding judge’s order and

threatened to prejudice defendants’ trial preparation); Price v.

McGlathery, 792 F.2d 472, 474 (5th Cir. 1986) (affirming dismissal

where, after warning, counsel failed to certify compliance with

pretrial instructions   and   failed   to   show   up   at   the   pretrial

conference).

     Nor is there any evidence in the record that the magistrate

judge made any effort to achieve compliance with the pretrial

scheduling order prior to imposing the sanction.             See Silas v.

Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir. 1978).             As we

observed in First Houston:

     “This Court in Callip has excused the absence of express
     findings concerning alternative sanctions when the
     district court had previously imposed lesser sanctions
     and had issued an ultimatum, although we noted in that
     case that express findings are required. That is not
     this case. Here, there is nothing in his order to show

                                 17
      that the district judge contemplated any sanction but the
      most severe one. He swung the axe less than one half-
      hour after [the defendant] had failed to appear.”

979 F.2d at 383.      The case at hand is indistinguishable; the

magistrate judge’s failure to consider, on the record, his reasons

for imposing as his initial sanction the most severe one available

is fatal to the legitimacy of the judgment.10

IV.

      Upon a careful review of the record we have determined that

the remainder of Pilgrims’ contentions are without merit.

                               Conclusion

      Because the magistrate judge failed to consider patently

available alternatives to accelerating the date of trial and

entering judgment as a sanction and because there is insufficient

evidence   of   contumacious   conduct   or   delay   warranting   such   a

sanction, we VACATE the judgment and REMAND the case for further

proceedings not inconsistent herewith.



                                         VACATED and REMANDED




10
     Many alternatives were available to the magistrate judge.
“Assessment of fines, costs, or damages against the [defendant] or
his counsel, attorney disciplinary measures, . . . and explicit
warnings are preliminary means or less severe sanctions that may be
used to safeguard a court’s undoubted right to control its docket.”
Rogers v. Kroger Co., 669 F.2d 317, 321-22 (5th Cir. 1982). The
magistrate judge could also have had the trial governed by
plaintiff’s proposed pretrial order.

                                   18
