UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10412
LATRESA DENISE ROBERTS
Plaintiff--Counter Defendant--Appellee,
v.
STORAGE AND RELOCATION SERVICES INC, et al
Defendants.
CHRIS TINGIRIDES
Defendant--Counter Claimant--Appellant.
Appeal from the United States District Court
for the Northern District of Texas
(3:99-CV-2593-G)
March 28, 2002
Before ALDISERT*, DAVIS, and PARKER, Circuit Judges.
PER CURIAM:**
Chris Tingirides appeals a default judgment of $500,000 plus
interest after he failed to make an appearance at a pre-trial
*
Circuit Judge of the Third Circuit Court of Appeals,
sitting by designation.
**
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this opinion should not be published and is not precedent except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. 47.4.
conference. The standard of review for the entry of sanctions
under Rule 16(f), Federal Rules of Civil Procedure, is abuse of
discretion. SEC v. First Houston Capital Res. Fund, Inc., 979
F.2d 380, 381-382 (5th Cir. 1992).
We hold that if the court granted the default judgment under
Rule 55(b)(2), then it exceeded its permissible exercise of
discretion by not complying with the three-day notice
requirement, and by not holding a hearing on the amount awarded
in the judgment. On the contrary, if the court granted the
judgment under Rule 16(f), then it exceeded its proper exercise
of discretion by not setting forth the efficacy of lesser
sanctions on the record.
In light of our determination to reverse the granting of
default judgment, it will not be necessary to decide whether, by
not providing Appellant with a hearing on the unliquidated
damages awarded, the court violated Rule 55 and denied him the
protections of due process.
Because we write only for the parties, is not necessary to
set forth the facts in detail.
I.
On November 15, 1999, Latresa Denise Roberts filed a lawsuit
alleging, among other things, sexual harassment and a hostile
work environment. She named Storage and Relocation Services,
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Hire Solutions, Chris Tingirides, and Mark Haag as co-defendants.
The matter proceeded through various pre-trial proceedings,
including an amended complaint by Roberts. After several
motions, counsel for the parties filed a Joint Status Report in
which it was agreed that a trial would take place in February
2001.
By this time, Tingirides had moved to California and had
retained a second attorney there. After the withdrawal of his
second attorney, Tingirides wrote a letter to the court, stating
the following:
I would like to appeal to you for an extension for time
to try and retain counsel. My former attorney has
withdrawn from my case and I have not been able to
retain new counsel. Not all attorneys are qualified to
handle this type of case therefore it is making it
difficult to find a qualified attorney. I am
requesting and [sic] an additional 30 days to retain
counsel.
Record Excerpts, Tab 5.
The district court construed this letter as a motion for
continuance, and denied the motion on January 24, 2001. At this
time, Tingirides was not represented by counsel. The Clerk’s
office did not send him actual notice of the denial, but rather
mailed it to Appellant’s former counsel of record. On February
2, 2001, a pre-trial conference was held at which Tingirides did
not appear. There is no evidence in the record indicating that
by this date Appellant had received notice that his request for
continuance had been denied. The court stated:
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Let the record reflect that Ms. Julie Johnson is here
on behalf of the plaintiff, but Mr. Tingirides has not
appeared, even though it is now 9:12 a.m. by my watch
on February 2nd, 2001. It appears that Mr. Tankeredies
[sic] is not going to appear . . . It appears to me
that he is in default now by virtue of his failure to
appear today. And Ms. Juden [sic] I am going to ask
you as counsel for the plaintiff to prepare and present
appropriate papers to enter a default judgment.
Record Excerpts, Tab 6.
On February 6, 2001, Roberts submitted a motion for default
judgment, as well as an affidavit, to the court. The following
day, the court entered a default judgment against Tingirides in
the amount of $500,000, plus pre and post-judgment interest. In
addition, Roberts obtained default judgments against other named
defendants. The court later denied Tingirides’ Motion for Relief
from Judgment. In this action, Tingirides appeals the entry of
this default judgment.
II.
If the foregoing judgment is analyzed as a Rule 16(f)
sanction, the proceedings were tantamount to a dismissal. The
sanction of dismissal “is the most severe sanction that a court
may apply, and its use must be tempered by a careful exercise of
judicial discretion.” Durgin v. Graham, 372 F.2d 130, 131 (5th
Cir. 1967). “In this circuit it is well established that
dismissal with prejudice is a drastic remedy to which a court may
resort only in extreme situations where there is ‘a clear record
of delay or contumacious conduct by the plaintiff.’” Silas v.
Sears, Roebuck & Co., Inc., 586 F.2d 382, 385 (5th Cir. 1978)
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(citing Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368
(5th Cir. 1967)).
We view the case at bar similar to the circumstances facing
us in SEC v. First Houston Capital Res. Fund, Inc., 979 F.2d at
381. In that proceeding, we confessed that it was “not entirely
clear whether the district court entered the default judgment
pursuant to Fed. R. Civ. P. 55 or Fed. R. Civ. P. 16 . . .” Id.
We held that “[b]ecause sanctions were imposed for failure of the
defendant to attend a pretrial conference, Rule 16(f) provides
the appropriate rubric under which sanctions should have been
dealt.” Id.
Because the district court here appears to have entered its
default judgment as a sanction for not appearing at pretrial
conference, we believe that Rule 16, and not Rule 55(b)(2) is the
most appropriate vehicle for analyzing the issues presented.1
After Tingirides failed to appear at the pre-trial conference, it
would be difficult to conclude that the judge intended the
default judgment as anything other than a sanction.
We require that three things occur before a dismissal is
justified. First, there must be “a clear record of delay or
1
Rule 55(b) states that the court must provide three days
notice for a hearing on a default judgment. Appellant correctly
notes that the motion for default judgment was submitted to the
court on February 6, 2001, and was signed by the Clerk the
following day. Hence, if this appeal is analyzed using Rule
55(b), then the judge clearly abused his discretion by not
providing the required notice period.
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contumacious conduct by the plaintiff.” Florida East Coast Ry.
Co., 385 F.2d at 368. Second, it must be clear that “lesser
sanctions would not serve the best interests of justice.” Rogers
v. Kroger Co., 669 F.2d 317, 320 (5th Cir. 1982). Third, the
record must contain evidence that the court actually considered
the lesser sanctions, and why it determined that dismissal was
the only appropriate remedy.
For the purposes of this decision, we will consider only the
third factor. We have stated that:
[W]e cannot affirm a dismissal unless the district
court expressly considered alternative sanctions and
determined that they would not be sufficient to prompt
diligent prosecution or the record reveals that the
district court employed lesser sanctions prior to
dismissal (assuming that plaintiff was capable of
performing them) that in fact proved to be futile.
Callip v. Harris County Child Welfare Dept., 757 F.2d 1513, 1521
(5th Cir. 1985). Dismissal with prejudice is normally
appropriate only if “its deterrent value cannot be substantially
achieved by use of less drastic sanctions.” Marshall v. Segona,
621 F.2d 763, 768 (5th Cir. 1980). “In fact, in a case which
presented a similar problem recently, [this Court] suggested that
charging the offending party with the costs and attorney’s fees
accumulated because of his actions is a more appropriate, and
less harsh, sanction than dismissal.” McNeal v. Papasan, 842
F.2d 787, 793 (5th Cir. 1988).
There is no evidence in the record that the district court
considered any sanctions other than dismissal. We have said that
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even if the record teems with instances of delay or other
egregious behavior, a district court cannot impose the extreme
sanction of dismissal “unless the court first finds that a lesser
sanction would not have served the interests of justice.” Id.
We have repeatedly made clear that before dismissal, the
court must not merely consider lesser sanctions, it must make
them part of the record. “A silent record is inadequate. We
shall not infer that the district judge weighed alternative
sanctions; he must have ‘expressly considered’ them.” Callip,
757 F.2d at 1521.
We have emphasized that “ . . . where the record does not
disclose that the district court considered alternative
sanctions, ‘findings of fact [on the appropriateness of sanctions
short of dismissal] are essential for our consideration of the
inevitable argument that the dismissal was an abuse of
discretion.’” Id. (citing Hornbuckle v. Arco Oil & Gas Co., 732
F.2d 1233 (5th Cir. 1984)).
Because the record does not indicate that the court
considered any alternative sanction, we are constrained to hold
that the court exceeded the limits of an appropriate exercise of
discretion.
III.
Having so decided, we are undoubtedly sympathetic with the
acute frustration obviously felt by the district court at the
time it entered the default order. The record does not indicate
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that at the time the court entered the order it knew that
Tingirides had not been personally notified that his motion for
continuance had been denied.2 Had the court been so informed, it
probably would not have entered the order.
Moreover, both parties are anything but model litigants.
Between the time of the initial complaint and the pre-trial
conference, Tingirides instructed his prior attorney to withhold
contact information from Roberts, and behaved in such a way as to
cause two separate attorneys, within a four-month period, to
withdraw from representing him. Robert’s behavior does not
entitle her to any kudos either, considering that she waited four
months after filing the pleading to serve Tingirides with notice
of the case, and only did so after the court threatened to
dismiss her suit altogether.
* * * * *
We reverse the judgment of damages entered on the default
judgment, reverse the default judgment entered prior thereto and
remand for further proceedings.
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2
The notice was sent to Appellant’s former counsel of
record.
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