                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                                   No. 98-41317
                                 Summary Calendar


DAVID EUGENE BUNDICK,

                                                        Plaintiff-Appellant,

                                        versus

BAY CITY INDEPENDENT SCHOOL DISTRICT;
BAY CITY INDEPENDENT SCHOOL DISTRICT
BOARD OF TRUSTEES,

                                            Defendants-Appellees.
_________________________________________________________________

      Appeal from the United States District Court for the
                    Southern District of Texas
                       USDC No. G-98-CV-245
_________________________________________________________________
                          August 6, 1999

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     David Eugene Bundick appeals the denial of his motion to

reinstate his case.        Bundick argues that the district court abused

its discretion in dismissing his case with prejudice for lack of

prosecution    because      it    did    not     give     notice   of    a    pretrial

conference,    did   not    consider      a    lesser     sanction,     and   did   not

consider the lack of wrongdoing on the part of the plaintiff.

     The motion to reinstate was not made within 10 days of the

final judgment in the case and is construed as a Rule 60(b) motion.

See Halicki v. Louisiana Casino Cruises, Inc., 151 F.3d 465, 470

     *
      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this opinion should not be published and is not precedent except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.
(5th Cir. 1998), cert. denied, 119 S.Ct. 1143 (1999).     The notice

of appeal was not timely as to the entry of judgment dismissing his

claim but was timely as to the denial of Bundick’s Rule 60(b)

motion.   Thus, the only issue before the court is whether the

district court abused its discretion in denying the Rule 60(b)

motion.   See Halicki, 151 F.3d at 470.     Because the merits were

never considered, we may vacate the denial for only a slight abuse

of discretion.    See id.

     Rule 60(b) is intended to allow the district court to do

substantial justice.     See Seven Elves, Inc. v. Eskenazi, 635 F.2d

396, 402 (5th Cir. 1981).     In ruling on the motion, the district

court did not expressly consider whether the dismissal was proper

or whether Bundick’s allegation that he was unaware of the pretrial

conference was true.    See Clofer v. Perego, 106 F.3d 678, 679 (5th

Cir. 1997).      The record lacks any evidence that Theresa Dean,

Bundick’s counsel of record, received notice of the September 2

conference, as required by the order of conference, from Bay City.

Further, even though the letter to Dean makes a reference to Rule

26(f), it does not clearly serve as notice of a conference because

it does not mention a conference, it does not state the date of the

conference, and it does not state that the parties were required to

attend the conference.

     The weight of the factors in favor of Bundick outweigh factors

against him.   See Halicki, 151 F.3d at 470; Seven Elves, Inc., 635

F.2d at 402.   Thus, the abuse of discretion is significant enough

to warrant reversal.     See Halicki, 151 F.3d at 470.   Accordingly,
the district court’s denial of the Rule 60(b) motion to reinstate

is VACATED, and the matter is REMANDED for further proceedings.

                                            VACATED and REMANDED.
