Hickman v. Fox Television Station, Inc. , 177 F. App'x 427 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
In the April 21, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 05-20608
Summary Calendar
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RENEE HICKMAN,
Plaintiff-Appellant,
VERSUS
FOX TELEVISION STATION, INC.; KRIV TV FOX 26,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 4:04-CV-1936
______________________________
Before SMITH, GARZA, and PRADO, Renee Hickman appeals the dismissal of her
Circuit Judges. employment discrimination suit. Finding no
error, we affirm.
PER CURIAM:*
I.
Hickman sued her former employer, Fox
Television Station, Inc., and KRIV TV Fox 26
*
Pursuant to 5TH CIR. R. 47.5, the court has de- ( collectively “Fox”), alleging race and sex dis-
termined that this opinion should not be published crimination, hostile work environment, and
and is not precedent except under the limited cir- prohibited retaliation under title VII of the
cumstances set forth in 5TH CIR. R. 47.5.4.
Civil Rights Act of 1964. She now lives and Hickman moved for a continuance so she
works in Kuwait. could complete her work assignment in Ku-
wait before proceeding further. She could not
The magistrate judge, to whom the case provide a firm date by which she could be
was referred by agreement, dismissed Hick- available, and her deposition testimony indi-
man’s suit for failure to prosecute and repeat- cated that she planned to work in Kuwait inde-
ed neglect of discovery orders. Hickman’s finitely. The court denied the motion for con-
persistent delinquency throughout the discov- tinuance and dismissed the case without preju-
ery process is well catalogued in the court’s dice.
memorandum opinion.
II.
In summary, Hickman filed her witness list Although the district court dismissed with-
with the court over one month after the dead- out prejudice, it also correctly noted that be-
line set by court order. She did not respond to cause the statute of limitations has expired on
Fox’s initial interrogatories and production re- most of Hickman’s claims, the dismissal of
quests until more than a month after the those claims will be treated on appeal as a dis-
agreed-upon date. The responses were unveri- missal with prejudice. See Berry v. CIG-
fied and incomplete. When ordered to amend NA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
her responses, Hickman failed to produce the Cir. 1992).
audio tapes that were the chief evidence on
which she based her allegations. We review for abuse of discretion a dis-
missal with prejudice for failure to prosecute.
The court granted Fox’s motion to compel Price v. McGlathery, 792 F.2d 472, 474 (5th
production of the tapes and all other relevant Cir. 1986). We will affirm dismissals with pre-
responses to its initial discovery requests. De- judice for failure to prosecute where (1) there
spite numerous promises to do so, Hickman is a plain record of delay or contumacious
never produced the tapes, in direct contraven- conduct by the plaintiff and (2) the district
tion of the court’s order. She claimed the court has expressly determined that lesser
tapes were locked in storage and that her law- sanctions would not prompt diligent prosecu-
yers could not retrieve them because she had tion, or the record shows that the court em-
the only key and was in Kuwait. ployed lesser sanctions that proved to be futile.
Berry, 975 F.2d at 1191 (citing Callip v.
Because of Hickman’s failure to respond Harris County Child Welfare Dep’t, 757 F.2d
fully to discovery, her first deposition was in- 1513, 1519 (5th Cir. 1985)); Stearman v.
adequate. On April 29, 2005, the court gave Comm’r, 436 F.3d 533, 535 (5th Cir. 2006
her ten days to set a date for a second deposi- (per curiam). This court also generally looks
tion, but she failed to do so. A month later, for at least one of three aggravating factors:
her counsel informed the court that Hickman (1) delay caused by the plaintiff and not his
could not return to the United States for a attorney; (2) actual prejudice to the defendant;
deposition until at least February 2006. or (3) delay caused by intentional conduct.
Price, 792 F.2d at 474.
Fox moved to dismiss, reasoning that Hick-
man had failed to prosecute her case and had The magistrate judge issued a detailed opin-
violated a number of orders. In response, ion explaining the legal and factual basis for
2
the dismissal. That opinion documents Hick-
man’s repeated failure to comply with dis-
covery orders and her persistent unwillingness
to make herself available in person to be de-
posed after being ordered to do so. We have
upheld dismissals with prejudice in cases in
which the plaintiff exhibited similar disregard
for the court’s orders.1 The court applied the
correct legal test and determined that Hick-
man’s actions amounted to “contumacious
conduct.” The court also expressly found that
lesser sanctions would not prompt a more
expeditious prosecution of the case. Those
determinations are supported by the record
and are not an abuse of discretion.
All three aggravating factors are present
here. The delay was caused by Hickman, not
her attorneys. She failed to arrange for the au-
dio tapes to be removed from storage after be-
ing ordered to produce them, and she refused
to make herself available for a deposition in
accordance with the court-ordered time line.
This behavior was plainly intentional and pre-
judiced Fox by forcing it to spend unnecessary
legal fees in the preparation of discovery re-
quests and depositions that were rendered
fruitless by Hickman’s intentional delay.
AFFIRMED.
1
See, e.g., Price, 792 F.2d at 474-75 (finding
contumacious conduct where counsel failed to file
pretrial order, failed to appear at a pretrial confer-
ence, and failed for almost a year to certify that he
would comply with orders); Callip v. Harris Coun-
ty Child Welfare Dep’t, 757 F.2d 1513, 1521 (5th
Cir. 1985) (finding contumacious conduct where
counsel failed to comply with numerous deadlines).
3