Randall v. Thoma-Sea Boat Bldrs

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 5, 2000
• Docket: 99-31418
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-31418 Summary Calendar _____________________

DANA RANDALL,

Plaintiff-Appellant,

versus

THOMA-SEA BOAT BUILDERS, INC.,

Defendant-Appellee.

_______________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (USDC No. 99-CV-1099-B) _______________________________________________________ June 1, 2000

Before REAVLEY, BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Dana Randall appeals the dismissal pursuant to Rule 41(b) for his failure to appear

as ordered before the magistrate judge. The case does not demonstrate a clear record of

delay or contumacious conduct, and the district court failed to consider a lesser sanction

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. before imposing dismissal sanctions; therefore the dismissal was an abuse of discretion.

We reverse and remand.

On September 14, 1999, Randall’s attorney Eddie Pullaro filed a motion to

withdraw as counsel. On September 16, 1999, the magistrate judge issued an order for

Randall to appear on September 29, 1999, to discuss his future representation, however,

Randall did not appear. On October 1, 1999, the magistrate judge entered Findings and

Recommendations that the lawsuit be dismissed. On October 7, 1999, Randall, through

new counsel, filed objections to the recommendations. On November 30, 1999, the

District Judge dismissed the lawsuit.

The district court relied on Aucoin v. K-Mart Apparel Fashion Corp., 943 F.2d 6

(5th Cir. 1991) for the proposition that dismissal is not an abuse of discretion when an

unrepresented plaintiff fails to appear pursuant to an order by the district court. The

district court’s reliance on Aucoin is misplaced because Aucoin was an appeal of a denial

of a motion to reinstate pursuant to Rule 60(b), which requires a showing of exceptional

circumstances. The case at bar involves a timely appeal from the order of dismissal

pursuant to Rule 41(b) and different standards apply.

A dismissal sanction under rule 41(b) requires a clear record of delay or

contumacious conduct by the plaintiff and demonstration that a lesser sanction would not

have sufficed. McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988); See Also S.E.C. v.

First Houston Capital Resources Fund, Inc., 979 F.2d 380, 382 (5th Cir. 1992).

(Dismissal under Rule 16(f) for failure to attend pretrial conference reversed for lack of

2 evidence of contumacious conduct and failure to consider lesser sanction). The record in

the case at bar reveals that after counsel withdrew, the plaintiff failed to appear at one

hearing and promptly obtained counsel to object to the magistrate judge’s

recommendation of dismissal. This does not rise to the level of a clear record of delay or

contumacious conduct. In addition, the district court did not enter any findings or

conclusions regarding the inadequacy of lesser sanctions. Under the standards applied in

the 5th Circuit, this is abuse of discretion.

REVERSED AND REMANDED