UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM P. WARD,
Plaintiff-Appellant,

v.
                                                                      No. 98-2590
THE MEN'S WAREHOUSE,
INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Harvey II, Senior District Judge.
(CA-98-1291-H)

Submitted: February 2, 1999

Decided: April 21, 1999

Before WILKINS, MICHAEL, and KING, Circuit Judges.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

William P. Ward, Appellant Pro Se. Sidney Gordon Leech, Jennifer
Lilore Huesman, GOODELL, DEVRIES, LEECH & GRAY, L.L.P.,
Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

William P. Ward appeals the district court's order that dismissed
his employment discrimination action with prejudice, purportedly
under Fed. R. Civ. P. 41(a)(2). It appears from the context of the
court's order, however, that it likely intended to dismiss Ward's
action pursuant to Fed. R. Civ. P. 41(b). See Ward v. Men's Ware-
house, Inc., No. CA-98-1291-H (D. Md. Sept. 22, 1998).

Because of the severity of a dismissal with prejudice under Rule
41(b), district courts must balance four factors in determining whether
such dismissals are appropriate:

          (1) the degree of personal responsibility of the plaintiff, (2)
          the amount of prejudice caused the defendant, (3) the exis-
          tence of a drawn out history of deliberately proceeding in a
          dilatory fashion, and (4) the existence of sanctions less dras-
          tic than dismissal.

Doyle v. Murray, 938 F.2d 33, 34 (4th Cir. 1991) (internal quotation
marks omitted). Although the district court stated in this case that it
dismissed Ward's action for failure to respond to discovery and fail-
ure to comply with a court order, the record is silent as to whether the
district court considered the above factors in dismissing Ward's
action with prejudice. Thus, we have no basis to evaluate whether the
district court considered all relevant factors before it acted.

Accordingly, we vacate the dismissal of Ward's action with preju-
dice. Assuming that the district court intended to exercise its authority
under Rule 41(b), we remand so that it may apply the above four-part
analysis in determining whether dismissal with prejudice was appro-
priate. If the court intended to dismiss Ward's action based upon
another rule, we direct that the court clarify its reasoning. We express
no opinion as to whether dismissal with prejudice is appropriate under
any analysis, as the district court is in the best position to make this
determination in the first instance. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

VACATED AND REMANDED

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