                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT               September 11, 2003

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 02-21167
                          Summary Calendar



JACKIE SMITH,

                                     Plaintiff-Appellant,

versus

TEXAS CHILDREN’S HOSPITAL;
UNUM LIFE INSURANCE COMPANY OF AMERICA,

                                     Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. H-98-CV-2341
                       --------------------

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jackie Smith appeals the district court’s order that granted

Texas Children’s Hospital’s motion filed pursuant to FED. R. CIV.

P. 41(b) to dismiss the complaint for lack of prosecution.         Smith

asserts that the delay was not the result of her conduct, was not

intentional, and did not cause the defendants prejudice.        Smith

argues that the delay was due to confusion caused by Texas

Children’s Hospital’s procedural maneuvers and the inability to


     *
        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that this opinion should not be published and is not precedent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.
                            No. 02-21167
                                 -2-

locate the record and determine the status of the case.    Smith

asserts that the district court did not issue a warning prior to

the dismissal and that the dismissal with prejudice is a harsh

result.

     This court reviews a FED. R. CIV. P. 41(b) dismissal for an

abuse of discretion.   Dorsey v. Scott Wetzel Servs., 84 F.3d 170,

171 (5th Cir. 1996).   A FED. R. CIV. P. 41(b) dismissal may be

affirmed “only upon a showing of a clear record of delay or

contumacious conduct by the plaintiff, . . . and where lesser

sanctions would not serve the best interest of justice.”    Id.

     A stay was ordered in the proceedings pending resolution of

Texas Children’s Hospital’s appeal in No. H-94-2723.    The opinion

dismissing that appeal was issued in June 1999.    The instant

case, however, remained inactive until April 2002.

     Smith does not allege that she did not receive notice of

this court’s 1999 opinion dismissing Texas Children’s Hospital’s

appeal in No. H-94-2723.    Smith has been represented by the same

attorney in this matter since 1994.    Smith has not shown that she

attempted to prosecute her case diligently from June 1999 to

April 2002.   Accordingly, the district court’s order dismissing

the action is AFFIRMED.    Texas Children’s Hospital’s motion to

strike affidavit is GRANTED; the requests for costs and fees are

DENIED.
