Austin v. City of Glenn Height

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-10136 Summary Calendar

RICK AUSTIN,

Plaintiff-Appellant,

versus

CITY OF GLENN HEIGHTS, ET AL,

Defendants,

CITY OF GLENN HEIGHTS,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas USDC No. 3:96-CV-1720-G - - - - - - - - - - February 12, 1999

Before EMILIO M. GARZA, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

Rick Austin appeals the district court’s dismissal of his

civil rights complaint pursuant to Fed. R. Civ. P. 16(f). for

failing to file timely a joint status report. The district

court’s order does not indicate whether the judgment was with or

without prejudice; nevertheless, since the order does not

indicate that the dismissal is without prejudice, it is deemed an

adjudication on the merits. See Callip v. Harris County Child

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 98-10136 -2-

Welfare Dept., 757 F.2d 1513, 1519 (5th Cir. 1985)(Fed. R. Civ.

P. 41(b) case). The district court did not consider alternatives

to dismissing Austin’s claim; therefore, the district court’s

order is VACATED, and Austin’s case is REMANDED to determine

whether a lesser sanction would serve the interests of justice.

See SEC v. First Houston Capital Resources Fund, 979 F.2d 380,

381-82 (5th Cir. 1992).

VACATED and REMANDED.