Augustine v. Avoyelles Progress Action Committee, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit December 5, 2003
Charles R. Fulbruge III
Clerk
No. 03-30228
Summary Calendar
CHRIS L. AUGUSTINE, SR.,
Plaintiff-Appellant,
VERSUS
AVOYELLES PROGRESS ACTION COMMITTEE, INC, et al.
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
(01-CV-1095)
Before BARKSDALE, EMILO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff, Chris L. Augustine, brings this appeal from the
district court’s dismissal of his case against defendants for lack
of prosecution pursuant to Western District Local Rule of Civil
Procedure 41.3W. We remand this case back to the district court to
*
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this opinion should not be published and is not precedent except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.
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consider and make express findings on the issue of whether lesser
sanctions than dismissal would have accomplished the district
court’s purpose of expediting prosecution of the case.
On June 14, 2001, the plaintiff filed a complaint against the
defendants alleging both state and federal claims. The merits of
these claims are not before us now. Defendants did not respond to
this complaint, and the clerk ordered a notice of default on August
20, 2001. The court rejected defendants’ motion to set aside the
default notice on October 17, 2001. No other formal action took
place in the case after this point.
On February 13, 2002, the clerk’s office issued a “Notice of
Intent to Dismiss for Failure to Prosecute” pursuant to Local Rule
41.3W. This notice gave the plaintiff ten days to provide good
cause why prosecution of the case had not gone forward or else be
subject to dismissal. The plaintiff alleges that, upon receipt of
this notice, he communicated by telephone with the clerk’s office
and explained to them that he was engaging in informal discovery.
He further alleges that the clerk’s office told him that the Notice
would be withdrawn. The Notice was never withdrawn.
On August 7, 2002, the Chief Deputy Clerk entered a judgment
of dismissal. The plaintiff filed a motion to vacate the
dismissal, which the court denied on February 12, 2003. The
plaintiff brings this appeal.
“We review a dismissal with prejudice for failure to prosecute
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for abuse of discretion.”1 Berry, Jr. v. Cignarsi-Cigna, 975 F.2d
1188, 1191 (5th Cir. 1992) (internal citations omitted). We will
uphold dismissals with prejudice for failure to prosecute only
when, inter alia, “the district court has expressly determined that
lesser sanctions would not prompt diligent prosecution, or the
record shows that the district court employed lesser sanctions that
proved to be futile.” Id. (citing Price v. McGlathery, 729 F.2d
472, 474 (5th Cir. 1986); Callip v. Harris County Child Welfare
Dept., 757 F.2d 1513, 1519-21 (5th Cir. 1985); Boudwin v. Graystone
Insurance Co. Ltd., 756 F.2d 399, 401 (5th Cir. 1985); Morris v.
Ocean Systems, 730 F.2d 248, 252 (5th Cir. 1984)).
In this case, the district court did not make an express
determination on the record that it considered lesser sanctions and
found them inadequate to prompt diligent prosecution by the
plaintiff. We cannot determine whether the district court abused
its discretion without these findings. Accordingly, we REVERSE the
judgment of the district court and REMAND for a determination of
whether lesser sanctions would prompt diligent prosecution of the
case by the plaintiff. See Boudwin, 756 F.2d at 400 (remanding a
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It is not entirely clear whether this dismissal is with or
without prejudice. However, “[w]here further litigation of a
claim will be time-barred, a dismissal without prejudice is no
less severe a sanction than a dismissal with prejudice, and the
same standard of review is used.” Berry, 975 F.2d at 1191. We
cannot determine which, if any, of the plaintiff’s claims are
time-barred based on this record. On remand, the court should
determine whether this dismissal should be treated as one with or
without prejudice.
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case back to the district court and noting that “consideration [of
lesser sanctions], and the court’s finding that lesser sanctions
would be inadequate, must be spread upon the record . . . .”);
Hornbuckle v. Arco Oil & Gas Co., 732 F.2d 1233, 1237 (5th Cir.
1984) (“When a district court dismisses an action for prejudice for
counsel’s failure to prosecute, such findings of fact are essential
for our consideration of the inevitable argument that the dismissal
was an abuse of its discretion.”).
REVERSED and REMANDED for proceedings consistent with this opinion.
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