IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 99-31418
Summary Calendar
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DANA RANDALL,
Plaintiff-Appellant,
versus
THOMA-SEA BOAT BUILDERS, INC.,
Defendant-Appellee.
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Appeal from the United States District Court for
the Eastern District of Louisiana
(USDC No. 99-CV-1099-B)
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June 1, 2000
Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.
PER CURIAM:*
Dana Randall appeals the dismissal pursuant to Rule 41(b) for his failure to appear
as ordered before the magistrate judge. The case does not demonstrate a clear record of
delay or contumacious conduct, and the district court failed to consider a lesser sanction
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
before imposing dismissal sanctions; therefore the dismissal was an abuse of discretion.
We reverse and remand.
On September 14, 1999, Randall’s attorney Eddie Pullaro filed a motion to
withdraw as counsel. On September 16, 1999, the magistrate judge issued an order for
Randall to appear on September 29, 1999, to discuss his future representation, however,
Randall did not appear. On October 1, 1999, the magistrate judge entered Findings and
Recommendations that the lawsuit be dismissed. On October 7, 1999, Randall, through
new counsel, filed objections to the recommendations. On November 30, 1999, the
District Judge dismissed the lawsuit.
The district court relied on Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d 6
(5th Cir. 1991) for the proposition that dismissal is not an abuse of discretion when an
unrepresented plaintiff fails to appear pursuant to an order by the district court. The
district court’s reliance on Aucoin is misplaced because Aucoin was an appeal of a denial
of a motion to reinstate pursuant to Rule 60(b), which requires a showing of exceptional
circumstances. The case at bar involves a timely appeal from the order of dismissal
pursuant to Rule 41(b) and different standards apply.
A dismissal sanction under rule 41(b) requires a clear record of delay or
contumacious conduct by the plaintiff and demonstration that a lesser sanction would not
have sufficed. McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988); See Also S.E.C. v.
First Houston Capital Resources Fund, Inc., 979 F.2d 380, 382 (5th Cir. 1992).
(Dismissal under Rule 16(f) for failure to attend pretrial conference reversed for lack of
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evidence of contumacious conduct and failure to consider lesser sanction). The record in
the case at bar reveals that after counsel withdrew, the plaintiff failed to appear at one
hearing and promptly obtained counsel to object to the magistrate judge’s
recommendation of dismissal. This does not rise to the level of a clear record of delay or
contumacious conduct. In addition, the district court did not enter any findings or
conclusions regarding the inadequacy of lesser sanctions. Under the standards applied in
the 5th Circuit, this is abuse of discretion.
REVERSED AND REMANDED
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