Orduna v. Texas Commission on Alcohol & Drug Abuse , 220 F. App'x 249 ( 2007 )


Menu:
  •                                                          United States Court of Appeals
    Fifth Circuit
    F I L E D
    In the                                 February 22, 2007
    United States Court of Appeals                          Charles R. Fulbruge III
    for the Fifth Circuit                                Clerk
    _______________
    m 06-20555
    Summary Calendar
    _______________
    JOSEPH C. ORDUNA,
    Plaintiff-Appellant,
    VERSUS
    THE TEXAS COMMISSION ON ALCOHOL AND DRUG ABUSE
    AND
    JIM MCDADE,
    Defendants-Appellees.
    _________________________
    Appeal from the United States District Court
    for the Southern District of Texas
    m 4:01-CV-1474
    ______________________________
    Before SMITH, WIENER, and OWEN,                           against TCADA and McDade. After a hear-
    Circuit Judges.                                         ing, Orduna filed a motion to re-open against
    TCADA and McDade, and the court granted
    PER CURIAM:*                                              the motion.
    The district court dismissed Joseph Ordu-                 TCADA and McDade then moved for dis-
    na’s case against the Texas Commission on Al-             missal under rule 41(b)2 for failing to prose-
    cohol and Drug Abuse (“TCADA”) and Jim                    cute. The court granted the motion, finding
    McDade for lack of prosecution under Federal              that Orduna’s inactionSSnot the clerk’s er-
    Rule of Civil Procedure 41(b). We affirm.                 rorSShad caused the delay, because (1) Ordu-
    na should have known it did not take three
    I.                                  years for the court to set a trial date; (2) the
    Orduna sued the State of Texas and                     clerk’s error of closing the case was a matter
    TCADA in April 2000. He amended his peti-                 of public record; and (3) Orduna had not con-
    tion in March 2001 and May 2001, nonsuiting               ducted any discovery or filed any pleadings.
    the state and adding McDade, Golden Leader-               Further, the court found that Orduna’s inac-
    ship Academy, and Richard Johnson as defen-               tion had hampered the discovery process in
    dants.                                                    such a way that would prejudice TCADA and
    McDade.3
    The matter was removed to federal court,
    and Orduna obtained leave to depose McDade                                      II.
    and conduct limited discovery, but he took no                We review for abuse of discretion a dis-
    action pursuant to that permission. He ob-                missal for lack of prosecution. Tello v.
    tained a default judgment against Golden                  Comm’r, 
    410 F.3d 743
    , 744 (5th Cir.), cert.
    Leadership Academy and Johnson in March                   denied, 
    126 S. Ct. 381
    (2005). The standard
    2002, and the court entered final judgment as             to evaluate dismissals for lack of prosecution
    to them.
    In September 2002, the district clerk’s of-               2
    That rule states:
    fice accidentally closed the case as to all defen-
    dants, including TCADA and McDade. Or-                         For failure of the plaintiff to prosecute or to
    duna took no action for three years1 until the               comply with these rules or any order of court, a
    district court, in January 2006, noticed the                 defendant may move for dismissal of an action
    case had been mistakenly closed and asked Or-                or of any claim against the defendant. Unless
    duna whether he intended to pursue claims                    the court in its order for dismissal otherwise
    specifies, a dismissal under this subdivision and
    any dismissal not provided for in this rule, other
    than a dismissal for lack of jurisdiction, for im-
    *
    Pursuant to 5TH CIR. R. 47.5, the court has de-          proper venue, or for failure to join a party un-
    termined that this opinion should not be published           der Rule 19, operates as an adjudication upon
    and is not precedent except under the limited cir-           the merits.
    cumstances set forth in 5TH CIR. R. 47.5.4.
    3
    After TCADA and McDade were added to the
    1
    Orduna claims he was delaying because he              suit, the legislature dissolved TCADA, and Mc-
    was waiting for the court to set a trial date.            Dade has retired.
    2
    is plain:
    Dismissals with prejudice for failure to pro-
    secute are proper only where (1) there is a
    clear record of delay or contumacious con-
    duct by the plaintiff and (2) the district
    court has expressly determined that lesser
    sanctions would not prompt diligent prose-
    cution, or the record shows that the district
    court employed lesser sanctions that proved
    to be futile. In most cases, a plain record
    of delay or contumacious conduct is found
    if one of the three aggravating factors is
    also present: (1) delay caused by the plain-
    tiff; (2) actual prejudice to the defendant; or
    (3) delay as a result of intentional conduct.
    Stearman v. Comm’r, 
    436 F.3d 533
    , 535 (5th
    Cir.) (per curiam), cert. denied, 
    126 S. Ct. 2900
    (2006) (internal citations omitted).
    Orduna took no action for four and a half
    years.4 To conduct discovery or file pleadings,
    he did not need the court to set a trial date, so
    he caused the delay. Also, TCADA would
    suffer “actual prejudice,” because it no longer
    exists as an entity. The district court had dis-
    cretion to dismiss Orduna’s claims, and based
    on the guiding standard, it did not abuse that
    discretion.
    The judgment of dismissal is AFFIRMED.
    4
    Prolonged inactivity is sufficient to warrant
    dismissal in this case. See Harrelson v. United
    States, 
    613 F.2d 114
    , 116 (5th Cir. 1980) (per cur-
    iam) (“In light of the significant inactivity of the
    plaintiff, we cannot say the district court abused its
    discretion in dismissing the complaint.”).
    3
    

Document Info

Docket Number: 06-20555

Citation Numbers: 220 F. App'x 249

Judges: Smith, Wiener, Owen

Filed Date: 2/22/2007

Precedential Status: Non-Precedential

Modified Date: 11/5/2024