IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-10220
Summary Calendar
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TAMALYN A. TIPS,
Plaintiff-Appellant,
v.
REGENTS OF TEXAS TECH UNIVERSITY, ET AL.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
(5:94 CV 193 C)
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August 3, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Tamalyn A. Tips appeals the dismissal of her suit with
prejudice based on the district court's presumption that the case
had been settled. We reverse.
On August 2, 1994, Tips filed suit against the Board of
Regents of Texas Tech University and ten individual defendants
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
pursuant to the Rehabilitation Act of 1973 (Rehabilitation Act),
the Americans with Disabilities Act of 1990 (ADA), the Fourteenth
Amendment, and state tort law. Tips alleged that she was a person
with a disability or handicapping condition within the meaning of
the Rehabilitation Act and the ADA, and she challenged the
University's decision to dismiss her from its doctoral program in
clinical psychology without making reasonable accommodations to her
disability. The defendants answered the complaint, and district
court entered a scheduling order directing that all motions and
pleadings be filed by January 3, 1995.
On November 21, 1994, Tips' attorney notified the district
court coordinator by telephone that there was "a pending settlement
in the matter." That same day, the district court entered an order
which stated:
The parties have indicated to the Court
that they have settled this case.
Accordingly, this case is administratively
closed without prejudice to its being reopened
to enter an order of dismissal or if the
settlement is not consummated. Counsel in
this case are ordered to file the papers
necessary to dismiss this action on or before
thirty (30) days from the date of this order.
According to the affidavit of Tips' attorney, after learning
that the defendants had rejected the settlement, he called the
court coordinator on December 21, 1994, to "inform the Court that
the settlement had fallen through."1 The affidavit states that
the court coordinator told the attorney that a written filing would
1
The district court records do not reflect that the court
received this information.
2
be required, but not that it must be filed by a certain date.
On December 28, 1994, the district court sua sponte dismissed
the suit with prejudice. The order of dismissal states that,
because the parties have not notified the court that they have not
consummated a settlement, the court "presumes that the . . . cause
has been finally settled." On December 29, 1994, Tips' attorney
filed a "Notice to Court of Non-Settlement." The district court
denied "any relief requested in the Notice [of Non-Settlement],"
and it denied Tips' motion for a new trial.2 Tips appeals.
A district court may sua sponte dismiss an action for failure
to prosecute, FED. R. CIV. P. 41(b), and it may order any sanctions
"as are just" for a party's failure to obey a pretrial order. FED.
R. CIV. P. 16(f). Although it is unclear whether the district court
dismissed this suit pursuant to Rule 41(b) or Rule 16(f), this
court reviews a dismissal under either rule for abuse of
discretion. Berry v. Cigna/RSI-Cigna, 975 F.2d 1188, 1191 (5th
Cir. 1992) (Rule 41(b)); S.E.C. v. First Houston Capital Resources
Fund, Inc., 979 F.2d 380, 381-82 (5th Cir. 1992) (Rule 16(f)).
The court will affirm a dismissal with prejudice
for failure to prosecute only when (1) there
is a clear record of delay or contumacious
conduct by the plaintiff, and (2) the district
court has expressly determined that lesser
sanctions would not prompt diligent
prosecution, or the record shows that the
2
On the same day that she filed her notice of appeal, Tips
also filed a FED. R. CIV. P 60(b) motion, which was denied by the
district court. The denial of that motion is not before the
court at this time.
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district court employed lesser sanctions that
proved to be futile.
Berry, 975 F.2d at 1191 (footnote omitted). In most cases in which
this court has affirmed a dismissal with prejudice for failure to
prosecute, the court has also found one of three aggravating
factors: "(1) delay caused by the plaintiff himself and not his
attorney; (2) actual prejudice to the defendant; or (3) delay
caused by intentional conduct." Id. (internal punctuation and
citation omitted).
The court has characterized its review of a sanction under
Rule 16(f) as "determining whether the punishment fits the crime."
First Houston, 979 F.2d at 382. A dismissal under Rule 16(f) is
"generally permitted . . . only in the face of a clear record of
delay or contumacious conduct by the [party]." Id. (quotation and
citation omitted). The record must also show that the district
court expressly considered whether a less drastic sanction would
suffice. Id. at 382-83.
In this case, the district court dismissed the suit with
prejudice based on the failure of Tips' counsel to comply timely
with only one order; the court did not expressly determine that
lesser sanctions would be futile; and none of the aggravating
factors exists. Berry, 975 F.2d at 1191; First Houston, 979 F.2d
at 382. Under these circumstances, dismissal of Tips' suit
constituted an abuse of discretion.
The judgment of the district court is REVERSED, and the case
is REMANDED with instructions to reinstate the case.
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