Dillon v. Diamond Offshr Mgmt

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 24, 2002
• Docket: 02-40064
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40064 Summary Calendar

CLINTON STACEY DILLON

Plaintiff - Appellant

v.

DIAMOND OFFSHORE MANAGEMENT COMPANY; DIAMOND OFFSHORE DRILLING INC.; DIAMOND OFFSHORE USA, INC.,

Defendants - Appellees

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CV-522 -------------------- July 23, 2002

Before KING, Chief Judge, and SMITH and DENNIS, Circuit Judges.

PER CURIAM:*

Clinton Stacey Dillon appeals the district court’s dismissal

of his suit filed under the Jones Act, 42 U.S.C. § 688. We have

determined that “unique circumstances” justify the exercise of

appellate jurisdiction in this case. See Fairley v. Jones, 824

F.2d 440, 442 (5th Cir. 1987).

Dillon failed to appear on the day scheduled for the trial;

however, both defense and plaintiff’s counsel were present, along

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-40064 -2-

with numerous live witnesses for the defense. The district court

entered an order dismissing Dillon’s case without prejudice. The

court directed that it would reinstate the case on its docket if

Dillon would agree to pay the expenses incurred by the defendants

in appearing on the date of trial. Dillon argues that the

district court’s order was an abuse of discretion because it was

not the least restrictive sanction available and because as a

seaman, he was a “ward of the court” entitled to deference from

the district court.

Although the district court stated that its dismissal was

without prejudice, the record indicates that Dillon’s injury

occurred in November 1997, and the complaint was filed in August

2000. Thus, upon refiling, Dillon’s claim would be barred by the

three-year statute of limitations under the Jones Act. See

Taurel v. Central Gulf Lines, Inc., 947 F.2d 769, 771 (5th Cir.

1991)(three-year statute of limitations governs action under the

Jones Act). In such circumstances, we treat the dismissal as

tantamount to a dismissal with prejudice. See Long v. Simmons,

77 F.3d 878, 879-80 (5th Cir. 1996)(statute of limitations can

cause dismissal without prejudice to operate as a dismissal with

prejudice).

FED. R. CIV. P. 41(b) permits a district court to dismiss an

action for failure to prosecute sua sponte in order to “achieve

the orderly and expeditious disposition of cases.” Morris v.

Ocean Sys. Inc., 730 F.2d 248, 251 (5th Cir. 1984)(citation No. 02-40064 -3-

omitted). We review such a dismissal for an abuse of discretion,

but will affirm only upon a showing of a clear record of delay or

contumacious conduct by the plaintiff and that lesser sanctions

would not serve the best interests of justice. See id. at 252.

We also consider certain “aggravating factors” such as the extent

to which the plaintiff himself was responsible for the delay, the

degree of actual prejudice to the defendant, and whether the

delay was the result of intentional conduct. Id.

Dillon offers no explanation for his failure to appear on

the day of trial. Given that counsel for the defendants appeared

on the scheduled trial date with numerous live witnesses present,

it cannot be said that the district court’s order was an abuse of

discretion. See Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.

1982); Anthony v. Marion County Gen. Hosp., 617 F.2d 1164 (5th

Cir. 1980); Hepperle v. Johnston, 590 F.2d 609 (5th Cir. 1979).

Accordingly, the judgment of the district court is AFFIRMED.

AFFIRMED.