IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-50719
Summary Calendar
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GERALDINE BATTY-HOOVER,
Plaintiff-Appellant,
versus
ELLA AUSTIN COMMUNITY CENTER,
Defendant-Appellee.
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Appeal from the United States District Court for the
Western District of Texas
USDC No. SA-95-CV-870
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August 5, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PER CURIAM:*
In this case, Batty-Hoover appeals the dismissal of her Title
VII claim by the district court for failure to prosecute. The
dismissal was nominally made without prejudice, but because any new
action would be time barred, we review the dismissal as if it had
been entered with prejudice in the first instance. See Berry v.
CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
We review dismissals with prejudice for abuse of discretion.
Id. Nonetheless, a dismissal with prejudice “is an extreme
*
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this opinion should not be published and is not precedent except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.
sanction that deprives the litigant of the opportunity to pursue
his claim.” McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554,
556 (5th Cir. 1981). At a minimum, it should only be resorted to
in cases of clear delay where other sanctions would be ineffective
and appropriate aggravating factors are present. Boudwin v.
Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985).
In this case, our review of the record discloses that the
dismissal was entered on the basis of the intransigence and
malfeasance of Batty-Hoover’s counsel in repeatedly failing to
cooperate with his opponent to timely produce and submit the
required agreed order. In this circumstance, we have clearly held
that it is inappropriate to resort to a dismissal with prejudice
before attempting some lesser sanction directed at the offending
attorney. See Clofer v. Perego, 106 F.3d 678, 680 (5th Cir. 1997).
Because the district court neither attempted such lesser sanctions
nor expressly found that they would be unavailing, see Berry, 975
F.2d at 1191, its decision to dismiss Batty-Hoover’s case with
prejudice was an abuse of discretion. Accordingly, the judgment of
the district court is REVERSED, and the case is REMANDED for
further proceedings.
REVERSED and REMANDED.
2