Mosher v. Keanster

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 15, 2009
No. 09-20057
Summary Calendar Charles R. Fulbruge III
Clerk
GARY MOSHER,
Plaintiff-Appellant,
versus
CINDY KEANSTER; DOUGLAS JONES; JUAN GUTIERREZ-GARRALDA;
JOHN DOES,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:08-CV-2105
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Gary Mosher appeals the dismissal of his complaint for want of prosecu-
tion, which was based on failure to appear for an initial scheduling conference.
We vacate and remand.
We review a sua sponte dismissal for want of prosecution, which is author-
ized by Rule 41 of the Federal Rules of Civil Procedure, for abuse of discretion.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-20057
See McNeal v. Papasan, 842 F.2d 787, 789-90 (5th Cir. 1988). Because the judg-
ment of dismissal did not specify whether it was with or without prejudice, it is
presumed to be with prejudice. See Nationwide Mut. Ins. Co. v. Unauthorized
Practice of Law Comm., 283 F.3d 650, 656 n.26 (5th Cir. 2002). A dismissal with
prejudice is an extreme sanction that deprives a plaintiff of the opportunity to
pursue his claim. Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir.
2008). Thus, we have “consistently refused to permit a court to impose that
sanction unless the history of a particular case discloses both (1) a clear record
of delay or contumacious conduct by the plaintiff and (2) that a lesser sanction
would not better serve the best interests of justice.” Id.
There is no clear record of delay or contumacious conduct by the plaintiff.
Although he did not appear for the scheduling conference, he wrote to the court
explaining his difficulty in traveling to Houston and requested that the confer-
ence be held by telephone or electronic means. That was not an unreasonable
request, given the distance from his home in New Jersey and his assertions, al-
beit unsupported by evidence, that he suffers a disability that prevents him from
traveling. Although he could have been more diligent in pursuing alternative
arrangements as the conference date approached, there is no evidence that his
failure to do so was intended to delay or arose out of contumaciousness rather
than simple negligence. See Millan, 546 F.3d at 327. In addition, the district
court did not attempt any lesser available sanction. See Rogers v. Kroger Co.,
669 F.2d 317, 321 (5th Cir. 1982).
We do not suggest that the failure to comply with court orders cannot be
the basis for a dismissal with prejudice; we only conclude that the record in this
case does not warrant such a result. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1191-92 & n.6 (5th Cir. 1992).
The judgment is VACATED and REMANDED. We express no view on the
merits of the case or on what rulings the district court should issue on remand.
2