     Case: 13-30885      Document: 00512533300         Page: 1    Date Filed: 02/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 14, 2014
                                    No. 13-30885
                                  Summary Calendar                         Lyle W. Cayce
                                                                                Clerk


ATLANTIC SOUNDING COMPANY, INCORPORATED, and
WEEKS MARINE, INCORPORATED

                                                 Plaintiffs-Appellees,
v.

MAURICE FENDLASON

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1260



Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       This is an appeal from the dismissal with prejudice of litigation between
a maritime employer and its injured employee. As discussed in detail below,
the employee failed to attend several discovery proceedings and a hearing
before the district court. For the reasons that follow, we affirm the dismissal.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-30885

                                      I.
      In May 2012, Plaintiffs, Atlantic Sounding Co., Inc., and Weeks Marine,
Inc., (“Plaintiffs,” collectively) filed a declaratory judgment action seeking a
declaration that they did not owe Maurice Fendlason, an injured seaman-
employee, maintenance and cure benefits. Fendlason filed an Answer and
counterclaim   against   Plaintiffs   seeking   damages    for   negligence   or
unseaworthiness, as well as maintenance and cure.
      Beginning in the fall of 2012, Fendlason repeatedly failed to appear for
various proceedings, and failed to comply with district court orders. On October
10, 2012, Fendlason did not attend a scheduled deposition. On November 28,
2012, the district court granted a Motion to Withdraw filed by counsel for
Fendlason, who claimed that Fendlason had not only failed to attend his
deposition, but had also failed to attend meetings with him and to return
counsel’s phone calls. The motion by counsel included Fendlason’s current
address and telephone number. The district court also ordered Fendlason to
enroll new counsel of record or notify the court of his intention to proceed pro
se within 30 days. Fendlason failed to take action in response to the Order. On
December 5, 2012, Fendlason was again absent at a deposition despite having
been served with a subpoena to appear.
      On January 9, 2013, Plaintiffs filed a motion to dismiss the action under
Rule 37 of the Federal Rules of Civil Procedure due to Fendlason’s failure to
attend the October and December depositions, or alternatively for failure to
prosecute. Service of the motion was completed on January 11, 2013, at
Fendlason’s mother’s residency using the address provided by Fendlason’s
counsel. A hearing was scheduled on Plaintiffs’ motion to dismiss for January
30, 2013. On January 28, 2013, the district court entered an order (the “Show


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                                        No. 13-30885

Cause Order”) which continued the hearing on the motion to dismiss until
February 22, and also ordered Fendlason to “show cause why the Court should
not dismiss the . . . action with prejudice for failure to prosecute or,
alternatively, as a sanction for failure to attend his deposition or abide by this
Court’s order issued on November 28, 2012.” On February 3, 2013, the
Plaintiffs served the Show Cause Order at the address provided in the motion
to withdraw. Despite proper service and notice, Fendlason failed to appear for
the hearing on Plaintiffs’ motion to dismiss and Show Cause Order on
February 22, 2013. As a result, the district court granted Plaintiffs’ motion and
issued an order dismissing the action with prejudice.
           On March 4, 2013, after the dismissal, Fendlason filed an ex parte
motion to enroll new counsel of record. On March 21, 2013, Fendlason, through
his new attorney, subsequently filed a motion for reconsideration of the district
court order dismissing the action with prejudice, which the district court
denied. Fendlason appeals.
                                               II.
           We review the district court’s imposition of sanctions for an abuse of
discretion. 1 The district court’s factual findings underlying the imposition of
sanctions are reviewed for clear error. 2 Dismissal with prejudice is the
“severest sanction possible,” 3 and we affirm such a dismissal only if: “(1) there
is a ‘clear record of delay or contumacious conduct by the plaintiff,’ and
(2)‘lesser sanctions would not serve the best interests of justice.’” 4 “[D]ismissal


1   Brown v. Oil States Skagit Smatco, 664 F.3d 71, 76 (5th Cir. 2011) (citation omitted).
2   Id.
3   Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 749 (5th Cir. 1987).
4   Brown, 664 F.3d at 77 (citing Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5 th

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                                        No. 13-30885

with prejudice is a more appropriate sanction when the objectionable conduct
is that of the client, and not the attorney.” 5
                                                III.
         On appeal, Fendlason argues that the district court abused its discretion
when it dismissed the action with prejudice because it failed to consider
alternative lesser sanctions. Fendlason contends that the district court could
have entered an order for Fendlason to appear for his deposition under threat
of dismissal.
         This court “normally only affirms the sanction of dismissal with
prejudice where the district court has also found that ‘lesser sanctions would
not serve the best interests of justice.’” 6 However, this court has also
recognized that a district court may “implicitly reject[]” lesser sanctions as
inappropriate when it determines that dismissal was the only effective option. 7
         Here, the district court dismissed the action because of Fendlason’s
repeated failure to attend properly noticed depositions and comply with court
orders. This conduct is directly attributable to Fendlason, and not his attorney,
as it took place both before and after his original counsel withdrew from
representation. In addition, Fendlason’s failure to act was one of the reasons
that drove original counsel to withdraw, as discussed above.
         We find that the district court did not abuse its discretion when it
dismissed the instant action with prejudice. Fendlason’s lack of action shows a



Cir. 1985)).
5   Brown, 664 F.3d at 77 (citation omitted).
6Imperial ED Promotions, L.L.C. v. Pacquiao, 13-40448, 2013 WL 6660478 (5th Cir. Dec. 18,
2013) (citing Brown, 664 F.3d at 77).
7   Brown, 664 F.3d at 79.

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“clear record of delay or contumacious conduct”                  8   sufficient to warrant
dismissal. In addition, our cases “have recognized that advance warnings of
possible default mitigate the requirement that the district court consider lesser
sanctions.” 9 Fendlason had at least two warnings that dismissal was possible
in this case. The first came on January 9, 2013, when the Plaintiffs filed their
Motion to Dismiss. The second, stronger warning occurred on January 28,
2013, when the district court issued its Show Cause Order in which it made
clear that dismissal was imminent should Fendlason fail to appear before the
court on February 22, 2013. Fendlason avers that a lesser sanction, such as
requiring attendance at a deposition with the threat of dismissal, should have
been considered by the district court. However, the Show Cause Order offered
an identical threat—attend or have your case dismissed—and Fendlason failed
to appear. The district court was not required to repeat the same warning. The
district court did not abuse its discretion when, after adequate warning, it
dismissed the action with prejudice.
                                              IV.
         For the above reasons, we AFFIRM the district court’s dismissal with
prejudice.




8   Id. at 77 (citation omitted).
9 Pacquiao, 2013 WL 6660478 (citing Ramsay v. Bailey, 531 F.2d 706, 709 n.2 (5th Cir. 1976)
(because “plaintiff was fully and repeatedly apprised of the possible imposition of the . . .
sanction [of dismissal]” the district court need not consider “possible alternative sanctions”);
Diaz v. S. Drilling Corp., 427 F.2d 1118, 1127 (5th Cir. 1970) (“Thus the default judgment
was a foreseeable and appropriate response to [plaintiff’s actions], and we hold that the trial
court did not abuse its discretion in ordering it.”)).

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