UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30161
Summary Calendar
PAUL CARTER,
Plaintiff-Appellant,
VERSUS
DIALYSIS CLINIC, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(98-CV-3398-B)
October 5, 2000
Before EMILIO M. GARZA, STEWART, and PARKER Circuit Judges.
PER CURIAM:*
Plaintiff Paul Carter appeals the district court’s order
dismissing his suit against Dialysis Clinic, Inc. with prejudice.
We conclude that the district court did not abuse its discretion
and affirm.
*
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opinion should not be published and is not precedent except under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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I.
On March 18, 1999, the district court issued a minute entry,
which established a timetable for completing discovery and
designating experts and which set dates for the pretrial conference
and the trial. Thereafter, the defendant served discovery requests
on the plaintiff. Prompted by plaintiff’s ongoing refusal to
respond to repeated discovery requests, the defendant filed a
motion to compel on August 30, 1999. The district judge granted
the motion, which ordered the plaintiff to respond by October 15,
1999. Carter’s attorney did not answer.
On December 2, 1999, the attorney failed to appear at a
scheduled settlement conference. The magistrate judge then tried
to contact the attorney, but another lawyer at the attorney’s firm
told the judge that the firm no longer represented Mr. Carter. In
fact, Carter had retrieved his file from the firm in October of
1999. However, Carter’s attorney never submitted a motion to
withdraw and, therefore, was still listed as counsel of record.
Carter’s attorney eventually filed a motion to withdraw on December
8, 1999, the same day as the hearing on defendant’s Motion to
Dismiss.
Carter’s attorney never opposed the defendant’s Motion to
Dismiss, which was filed on November 5, 1999. Furthermore, the
attorney failed to appear at the pretrial conference scheduled for
December 9, 1999. As a result of counsel’s failure to comply with
court orders and to appear at scheduled hearings, the district
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judge granted defendant’s Motion to Dismiss.
II.
Rule 41(b) and Rule 37(b)(2) of the Federal Rules of Civil
Procedure allow a district court to dismiss actions with prejudice
for a litigant’s failure to comply with court orders. While
dismissal is a severe penalty, we have upheld this sanction when
“the history of a particular case discloses both (1) a clear record
of delay or contumacious conduct by the plaintiff, and (2) that a
lesser sanction would not better serve the best interests of
justice.” McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988).
See Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th
Cir. 1985). “In close cases we have often looked to proof of one
of the following ‘aggravating factors’-- (1) the plaintiff’s
personal contribution to the delay, (2) the defendant’s actual
prejudice because of the delay, and (3) delay that can be
characterized as intentional.” Id. Dismissal may be appropriate
even when the client shares little of the blame for an attorney’s
conduct. See Dorsey v. Scott Wetzel Serv., Inc., 84 F.3d 170 (5th
Cir. 1996)(per curiam); Woodson v. Surgitek, 57 F.3d 1406, 1418
(5th Cir. 1995); Link v. Wabash R.R. Co., 370 U.S. 626 (1962).
The facts of the case at hand clearly establish the elements
required to uphold a district court’s decision to dismiss. From
the time the court issued the minute entry to the moment the judge
dismissed the case, Carter’s attorney allegedly failed to perform
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almost all of his obligations in the suit. During this period, the
attorney disobeyed the court’s order compelling discovery, failed
to provide expert reports and witness lists, and declined to take
action with regard to the defendant’s Motion to Dismiss. We find
that such inaction establishes a clear record of delay and that the
record demonstrates contumacious conduct through an “obstinate
disrespect for the judicial process.” McNeal, 842 F.2d at 792.
In addition, we find that the delay prejudiced the defendant
by prohibiting the defendant’s counsel from carrying the case
forward in a timely manner. We agree with the district court’s
determination that lesser sanctions would not serve the best
interests of justice. While we recognize that Carter may not be to
blame for his attorney’s conduct, we also must contend with the
adverse consequences that result from limiting district courts’
discretion to levy the harshest of sanctions against attorneys who
callously and continuously disobey court orders and fail to appear
at scheduled hearings. We conclude that the district court did not
abuse its discretion by dismissing the case with prejudice and
affirm.
AFFIRMED
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