                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                   AUG 24, 2006
                                No. 06-10480                     THOMAS K. KAHN
                            Non-Argument Calendar                    CLERK
                          ________________________

                  D. C. Docket No. 04-00410-CV-ORL-18-KRS

KELECHI NWABEKE,

                                                    Plaintiff-Appellant,

                                      versus

TORSO TIGER, INC., a California corporation,
BODY TRENDS HEALTH AND FITNESS, INC.,
a California corporation,

                                                    Defendants-Appellees,

DOMINIC TRADING, INC.,
a suspended California corporation,
                                                    Defendant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                (August 24, 2006)

Before ANDERSON, BIRCH and HILL, Circuit Judges.
PER CURIAM.

      The district court dismissed this case with prejudice, ordering plaintiff to

bear the defendant’s costs and fees, for plaintiff’s failure to appear at her Rule 35

examination and for her misleading deposition testimony. Plaintiff’s failure to

attend the examination occurred nine days after her counsel was permitted by the

court to withdraw and the court “continued” her case for sixty days to secure new

counsel. Plaintiff asserts that she was advised by her counsel, prior to his

withdrawal, that she need not attend the examination while her case was continued.

      While we agree with the district court that dismissal is an appropriate

sanction where the circumstances indicate a clear record of delay, we are

concerned that such circumstances are not entirely clear in this case. The record in

this case lacks any clear support for the conclusion that plaintiff’s failure to attend

her examination was “willful,” and lends itself to the inference that

misunderstanding or confusion, engendered in part by an officer of the court, may

have led to her failure to attend. For such a harsh sanction as dismissal, we require

that the record clearly reflect a willful pattern of delay and obstruction of the

orderly progress of the case. See EEOC v. Troy State Univ., 693 F.2d 1353, 1357-

58 (11 th Cir. 1982) (reversing dismissal under Fed. R. Civ. P. 37 because

noncompliance with a discovery order stemmed from confusion and



                                            2
misunderstanding). Accordingly, we shall remand this case for such findings to be

made.

        VACATED AND REMANDED.




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